United States District Court, M.D. Florida, Orlando Division
Roy B. Dalton, Jr. United States District Judge
REPORT AND RECOMMENDATION 
R. KLINDT UNITED STATES MAGISTRATE JUDGE
Lynn Norris (“Plaintiff”) is appealing the
Commissioner of the Social Security Administration's
(“SSA('s)”) final decision denying her claims
for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”).
Plaintiff's alleged inability to work is mainly a result
of chronic pain in her legs and back, asthma, and mental
disorders. Modified Transcript of Administrative Proceedings
(Doc. No. 21; “Tr.” or “modified
administrative transcript”), filed August 21, 2017, at
798, 799, 801, 802.
case has a long and tortured history that is explained in
detail below. The ultimate issue comes down to whether the
Administrative Law Judge's decision being reviewed by
this Court failed to comply with the Appeals Council's
explicit instruction to consolidate several applications and
render a new decision based on all of the then-pending
applications. But, the issue is complicated because Defendant
requests that this Court consider a proposed supplemental
transcript, filed late in the case, after Plaintiff's
Brief was filed. A discussion follows.
Proceedings in the SSA and the Prior Case in this
November 12, 2009, Plaintiff filed applications for DIB and
SSI, alleging an onset disability date of January 1, 2007 in
the DIB application, and an onset disability date of February
1, 2006 in the SSI application. Tr. at 146-50 (DIB), 140-45
(SSI). It was later determined by the SSA that due to prior
applications in which Plaintiff claimed an onset date after
2006, Plaintiff could “not use 2006” for her
onset date in these applications. Tr. at 238 (emphasis
omitted). Plaintiff therefore proceeded with January 1, 2007
as the alleged onset date. See Tr. at 763;
Plaintiff's Brief (Doc. No. 19; “Plaintiff's
Brief” or “Pl.'s Br.”), filed July 17,
2017, at 2 n.1. Plaintiff's applications were denied
initially, see Tr. at 102-05, 543 (DIB); Tr. at
97-101, 544 (SSI), and were denied upon reconsideration,
see Tr. at 92-94, 545 (DIB); Tr. at 89-91, 546
February 7, 2011, an Administrative Law Judge (“first
ALJ”) held a hearing, during which he heard from
Plaintiff, who was represented by counsel; a vocational
expert (“VE”); and two medical experts
(“ME(s)”). See Tr. at 761-826. At the
time of the hearing, Plaintiff was thirty-seven years old.
Tr. at 793. On March 11, 2011, the first ALJ issued a
decision finding that Plaintiff was disabled, but that
Plaintiff's “substance [abuse was] a contributing
factor material to the determination of disability.”
Tr. at 550-64, 563 (emphasis and citation omitted). The ALJ
therefore found that Plaintiff was not “disabled within
the meaning of the Social Security Act at any time from the
alleged onset date through the date of th[e] decision.”
Tr. at 563 (emphasis omitted). On September 14, 2012, the
Appeals Council denied Plaintiff's request for review,
making the first ALJ's Decision the final decision of the
Commissioner. Tr. at 565-67.
October 31, 2012, Plaintiff commenced an action under 42
U.S.C. §§ 405(g) and 1383(c)(3) in the Orlando
Division of this Court, seeking judicial review of the
Commissioner's final decision. See Complaint
(Doc. No. 1), Norris v. Comm'r of Soc. Sec.,
6:12-cv-1632-Orl-41TBS. On January 25, 2013, Defendant filed
an Unopposed Motion to Remand, in which Defendant sought to
remand the matter pursuant to sentence six of 42 U.S.C.
§ 405(g) and § 1383(c)(3) so that the Appeals
Council could “review any materials submitted by
[P]laintiff's representative and, if all materials are
complete, [prepare] the certified administrative
record.” Tr. at 573. Defendant represented, “If
not, the Appeals Council will remand the case to an [ALJ] for
reconstruction of the administrative record.” Tr. at
573. On February 13, 2013, upon the recommendation of Thomas
B. Smith, United States Magistrate Judge, an Order was
entered by Charlene Edwards Honeywell, United States District
Judge, remanding the Commissioner's decision pursuant to
sentence six of 42 U.S.C. § 405(g) for further
administrative action. See Tr. at 569-70 (Order);
Tr. at 571-72 (Report and Recommendation).
remand from this Court, the Appeals Council entered an Order
on March 20, 2013 vacating the Commissioner's final
decision and remanding the case to the first ALJ for further
proceedings. Tr. at 578-80. One of the reasons for the remand
was that “the hearing decision contain[ed] a list of
exhibits that describe[d] the evidence of record considered,
” but “exhibits 16F through 26F [could not] be
located, ” so “further development [was]
necessary.” Tr. at 578. Another reason was that
“further evaluation of [Plaintiff's] mental
impairments [was] warranted.” Tr. at 578. Accordingly,
the Appeals Council included a host of instructions for the
first ALJ on remand. Tr. at 578-80.
first ALJ on remand held a hearing on March 11, 2014, during
which he heard from Plaintiff, who remained represented by
counsel, and from a VE and a ME. See Tr. at 1215-55.
When this hearing occurred, Plaintiff was forty-one years
old. Tr. at 1232. After the hearing, on June 9, 2014, the
first ALJ wrote a letter to Plaintiff's counsel proposing
to include a list of exhibits as “additional
evidence” in the file and inviting counsel to comment
on it. Tr. at 837-38. In response,
Plaintiff's counsel wrote a June 21, 2014 letter
commenting on the additional evidence. Tr. at 40-43, 839-42
18, 2014, the first ALJ issued another decision finding
Plaintiff not disabled through the date of the decision. Tr.
at 15-39. Plaintiff opted not to seek review by the Appeals
Council, see Pl.'s Br. at 3, instead filing, on
September 30, 2014, an Amended Complaint in the original case
in this Court, see Am. Compl. (Doc. No. 14),
6:12-cv-1632-Orl-41TBS. After the filing of the Amended
Complaint and a Motion to Reopen the Case by Defendant (Doc.
No. 15), 6:12-cv-1632-Orl-41TBS, the case was reopened and
assigned to Carlos E. Mendoza, United States District Judge,
along with Judge Smith (Doc. Nos. 16, 17),
the unopposed motion of Defendant and the recommendation of
Judge Smith, Judge Mendoza on May 18, 2015 entered an Order
reversing and remanding the matter pursuant to sentence four
of 42 U.S.C. § 405(g). See Motion (Doc. No.
23), 6:12-cv-1632-Orl-41TBS; Report and Recommendation (Doc.
No. 24), 6:12-cv-1632-Orl-41TBS; Order (Doc. No. 25),
6:12-cv-1632-Orl-41TBS. The instructions on remand were as
On remand, it is expected that the [ALJ] will offer Plaintiff
the opportunity to appear and testify in person at a hearing
and obtain further evidence from a psychological medical
expert, who should review all mental health evidence
available, to clarify the nature and severity of
Plaintiff's impairments in accordance with 20 C.F.R.
§§ 404.1527(e) and 416.927(e) and Social Security
Ruling 96-6p; and give further consideration to all opinions,
including those of consultative examiners and State agency
consultants, pursuant to the provisions of 20 C.F.R.
§§ 404.1527 and 416.927 and Social Security Rulings
96-2p, 96-5p, 96-6p; and explain the weight given to such
Order (Doc. No. 25), 6:12-cv-1632-Orl-41TBS; see
also Judgment (Doc. No. 26), 6:12-cv-1632-Orl-41TBS.
None of the documents from Case No. 6:12-cv-1632-Orl-41TBS
referred to in this paragraph or the preceding paragraph are
contained in the modified administrative transcript.
remand from this Court, the Appeals Council entered an Order
on November 20, 2015, vacating the Commissioner's final
decision and remanding the matter to a different ALJ
(“second ALJ”) for further proceedings. Tr. at
1318-20. The second ALJ was given the following instructions.
remand, the [second ALJ] will:
• Offer [Plaintiff] the opportunity to appear and
testify in person at a hearing and obtain further evidence
from a psychological [ME], who should review all mental
health evidence available, to clarify the nature and severity
of [Plaintiff]'s impairments (20 CFR [§§]
1527(e) and 416.927(e) and Social Security Ruling 96-9p).
• Give further consideration to all opinions, including
those of consultative examiners and State agency consultants,
pursuant to the provisions of 20 CFR [§§] 404.1527
and 416.927 and Social Security Rulings 96-2p, 96-5p, 96-6p,
and explain the weight given to such opinion evidence.
Tr. at 1319-20. The Appeals Council observed that Plaintiff
had filed “subsequent claims” for DIB and SSI on
January 17, 2013. Tr. at 1320; see Tr. At 581-92,
593, 594-605, 635-41. So, because “[t]he Appeals
Council's action with respect to the present paper claims
render[ed] the subsequent claims duplicate, ” the
second ALJ was directed to “consolidate the claim
files, create a single paper record, and issue a new decision
on the consolidated claims.” Tr. at 1320 (citing 20
C.F.R. §§ 404.952, 416.1452; HALLEX I-1-10-10).
evident that the second ALJ never became aware of the
instructions regarding consolidation of the claims. The
second ALJ held a hearing on August 3, 2016, during which she
heard testimony from Plaintiff, who remained represented by
counsel, and from a ME. Tr. at 1422-43. At the time of
this hearing, Plaintiff was forty-three years old. Tr. At
1425. During the hearing, the second ALJ indicated her
understanding of why the case had been remanded: “[we]
are sitting here today based upon a November 20th, 2015
remand specifically requesting clarification of the nature
and severity of your psychiatric impairment, mainly because
of the findings previously regarding the implications of the
polysubstance abuse.” Tr. at 1424. At another point in
the proceeding, the ME, a board certified psychiatrist,
seemed confused about the intended scope of his testimony.
Tr. At 1425-26. The ME referred to the file as
“prolific” and noted that he had recently
received “medical documentation principally related to
2014, but some records also from 2016.” Tr. at 1425-46.
second ALJ clarified the scope of the proceedings with the
Well, what we have here is an extended claim with an
application filed in 2009 with an alleged disability onset
date of January 1st, 2007. There were previous decisions in
this file which specifically addressed whether
[Plaintiff]'s substance abuse exacerbated other symptoms
of psychiatric impairments. So the indication from the courts
ha[s] been that they would like a psychiatrist to review the
full record, which it sounds like you do. [sic] have because
we have that gap in our records as well, and form an opinion
as to the actual diagnoses and impairments that existed in
2007 and forward.
Tr. at 1426.
the hearing, the second ALJ issued a decision (“the
Decision”) on September 1, 2016, finding Plaintiff was
not disabled through the date of the Decision. Tr. at
1259-86. The second ALJ in ...