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Nottingham v. Commissioner of Social Security

United States District Court, M.D. Florida, Orlando Division

February 7, 2018




         Plaintiff Mary L. Nottingham seeks judicial review of the denial of her claim for a period of disability and disability insurance benefits (“DIB”) by the Commissioner of the Social Security Administration (“Commissioner”). The Court has reviewed the record, the briefs and the applicable law. For the reasons discussed herein, the decision of the Commissioner is REVERSED, and this matter is REMANDED pursuant to 42 U.S.C. § 405(g), sentence four.[1]

         I. Issues on Appeal[2]

         Plaintiff raises three issues[3] on appeal: (1) whether the residual functional capacity (“RFC”) findings of the Administrative Law Judge (“ALJ”) are supported by substantial evidence and whether the ALJ developed a full and fair record; (2) whether the ALJ properly assessed Plaintiff's severe impairments; and (3) whether substantial evidence supports the ALJ's assessment of Plaintiff's credibility.

         II. Summary of the ALJ's Decision

         Plaintiff was 64 years old at the time of the hearing before ALJ Stephen Calvarese on November 5, 2015. Tr. 60, 64. Plaintiff alleged disability due to pain in her back, leg and neck and severe depression. Tr. 209. On November 24, 2015, the ALJ issued a decision finding Plaintiff not disabled from April 5, 2013, the alleged disability onset date, through the date of the decision. Tr. 19-29. In his decision, at step two of the sequential process, [4] the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of the lumber spine and obesity and non-severe impairments of hypertension, mild chronic kidney disease, an affective disorder and an anxiety-related disorder. Tr. 21. In doing so, the ALJ found that Plaintiff had mild limitations in activities of daily living, social functioning and concentration, persistence or pace, and no episodes of decompensation. Tr. 22-23. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listing. Tr. 23. Prior to step four, the ALJ then determined that during the relevant period Plaintiff had the RFC to perform light work[5] with additional physical restrictions. Tr. 24. Next, at step four the ALJ found that Plaintiff could perform her past relevant work as a supervisory cashier as generally performed. Tr. 27-28. As a result, he found Plaintiff was not disabled. Tr.28-29.

         III. Standard of Review

         The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 91077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).[6]Substantial evidence is “more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established, and such relevant evidence as a reasonable person would accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations omitted).

         The Eleventh Circuit has restated that “[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citation omitted). Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact or found that the preponderance of the evidence is against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         IV. Discussion

         a. Plaintiff's RFC and the ALJ's development of the record

         Plaintiff argues the ALJ failed to adequately consider all “pertinent medical evidence” when considering Plaintiff's RFC and to properly consider and weigh the medical opinions of record, specifically records from Plaintiff's treating physician, Morphan Sharma, M.D., and nerve conduction studies ordered by Plaintiff's neurologist, Jeffrey S. Corak, M.D. Doc. 23 at 8-18. Plaintiff asserts the ALJ had an affirmative duty to obtain these records and erred by failing to do so. Id. The Commissioner responds Plaintiff has not shown a violation of her due process rights or demonstrated clear prejudice. Doc. 24 at 5-9. Based on the admittedly scant evidence available to the ALJ and because the additional evidence, if considered, may have changed the ALJ's decision, the Court finds that remand is required.

         Manuel Crisanto, M.D., was Plaintiff's primary care physician who treated her at Deltona Medical Center from 2008 through March 2013 for her medical conditions, including her depression. Tr. 213, 333-375. Plaintiff testified she sought treatment from Dr. Sharma for her anxiety and other general medical issues following her treatment with Dr. Crisanto because of insurance coverage issues. Tr. 76-81; see Tr. 247, 397-415 (records of colonoscopy and other tests ordered by Dr. Sharma in from July to November 2014), 430-32 (record of neurologic consultation referred by Dr. Sharma in October 2015). At the hearing, Plaintiff's counsel informed the ALJ that he anticipated getting “some updates” from Dr. Sharma “imminently, ” and while he expected them in time for the hearing, he did not anticipate it would take “more than a few days” to receive them. Tr. 63. The ALJ responded:

Okay. What I normally do is I don't leave the record open for any specific length of time. But I will promise you that if I receive the documents before I decide the ...

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