United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.
Altermese Lacapra (the “Claimant”), appeals to
the District Court from a final decision of the Commissioner
of Social Security (the “Commissioner”) denying
her application for Supplemental Security Income benefits.
Doc. No. 1. Claimant alleges a disability onset date of
September 22, 2012. R. 338. Claimant argues that the
Administrative Law Judge (the “ALJ”) erred by 1)
failing to properly develop the record; 2) making findings
unsupported by substantial evidence; and 3) failing to make a
proper credibility finding regarding Claimant's
testimony. Doc. No. 16 at 12-15, 19, 21-23. For the reasons
set forth below, it is RECOMMENDED that the
Commissioner's decision be AFFIRMED.
STANDARD OF REVIEW
Commissioner's findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g)
(2010). Substantial evidence is more than a scintilla - i.e.,
the evidence must do more than merely create a suspicion of
the existence of a fact and must include 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) (citing Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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, and even if the reviewer finds that the evidence
preponderates 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). The Court must view the evidence as a
whole, considering evidence that is favorable as well as
unfavorable to the decision. Foote, 67 F.3d at 1560.
The District Court “‘may not decide the facts
anew, reweigh the evidence, or substitute [its] judgment for
that of the [Commissioner].'” Phillips v.
Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)
(quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983)).
argues that the ALJ erred by 1) failing to properly develop
the record; 2) making findings unsupported by substantial
evidence; and 3) failing to make a proper credibility finding
regarding Claimant's testimony. Doc. No. 16 at 12-15, 19,
Duty to Fully and Fairly Develop the Record
argues that the ALJ erred by failing to fully and fairly
develop the record. Doc. No. 16 at 12-15. Social security
proceedings are inquisitorial, not adversarial, and the ALJ
has a duty to investigate facts and develop arguments for
granting and denying benefits. Sims v. Apfel, 530
U.S. 103, 110 (2000). Relatedly, the ALJ always has a basic
duty to develop a full and fair record. Brown v.
Shalala, 44 F.3d 931, 934 (11th Cir. 1995). The
claimant, however, has the burden of proving disability and
must produce evidence to support the disability claim.
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003). One district court explained the connection between
the claimant's burden and the ALJ's duty as follows:
Although the burden of proof is on the claimant to prove
disability, the ALJ is under a duty to conduct a full and
fair inquiry into all the matters at issue. Ford v.
Secretary of Health and Human Services, 659 F.2d 66 (5th
Cir. 1981). Thus, in general, the claimant has the burden of
obtaining his medical records and proving that he is
disabled. 20 C.F.R. § 404.1512(a) and (c). On the other
hand, the Commissioner (nee ALJ) has the
responsibility to make every reasonable effort to develop the
claimant's complete medical history, for at least the
twelve months preceding the month in which the claimant filed
his application and, if applicable, for the twelve month
period prior to the month in which he was last insured. 20
C.F.R. § 404.1512(d).
Rease v. Barnhart, 422 F.Supp.2d 1334, 1372 (N.D.Ga.
2006). Other courts have indicated that an ALJ's
“duty to develop the record is triggered when there is
ambiguous evidence or when the record is inadequate to allow
for proper evaluation of the evidence.” Reed v.
Astrue, No. 11-00376-B, 2012 WL 4497635, at *6 (S.D.
Ala. Sept. 28, 2012).
fulfills the duty to fully develop the record by ordering a
consultative examination if one is necessary to make an
informed decision. McCray v. Massanari, 175
F.Supp.2d 1329, 1339 (M.D. Ala. 2001) (citing Reeves v.
Heckler, 734 F.2d 519, 522 n. 1 (11th Cir.1984)). The
ALJ has “discretion to order a consultative examination
where he determines one is warranted, [but] ‘[i]t is
reversible error for an ALJ not to order a consultative
examination when such an evaluation is necessary for him to
make an informed decision.'” Id. at
1338-39 (quoting Reeves, 734 F.2d at 522 n.1).
claimant who asserts that the ALJ violated the duty to
develop a full and fair record must show “prejudice
before we will find that the claimant's right to due
process has been violated to such a degree that the case must
be remanded to the [Commissioner] for further development of
the record.” Brown v. Shalala, 44 F.3d at 935.
Demonstrating prejudice requires “showing that the ALJ
did not have all of the relevant evidence before him in the
record . . . or that the ALJ did not consider all of the
evidence in the record in reaching his decision.”
Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir.
1985). “In evaluating the necessity for a remand, [the
court is] guided by ‘whether the record reveals
evidentiary gaps which result in unfairness or ‘clear
prejudice.'” Brown, 44 F.3d at 935
(quoting Smith v. Schweiker, 677 F.2d 826, 830 (11th
argues that the ALJ failed to develop the record because the
ALJ did not send Claimant for an IQ or any other
psychological testing to determine whether she met the
listings for intellectual disorder, neurodevelopmental
disorders, or neurocognitive disorders, or how her cognitive
problems would affect her residual functional capacity
(“RFC”). Doc. No. 16 at 13.
had before him several reports regarding Claimant's
condition. On March 29, 2011, Dr. Nitin Haté, M.D.,
conducted a disability examination of Claimant and found her
neurological examination “essentially normal.” R.
594, 596. On September 30, 2011, Dr. Candace Mihm, Ph.D.,
conducted a Psychiatric Review Technique and found a
“Cognitive D/O NOS” disorder. R. 608. She did not
check any of the boxes for “12.05 Mental Retardation,
” and she stated that Claimant alleged learning
handicaps. R. 611, 619. Dr. Magaly Delgado, Psy.D., conducted
a General Clinical Evaluation with Mental Status Exam and
Memory Testing on September 22, 2011, and diagnosed Claimant
with “Cognitive Disorder, Not Otherwise Specified[,
]” among other things. R. 602, 605. On January 28,
2014, Dr. David J. Fleischmann, Ph.D., conducted a
“General Clinical Evaluation with Mental Status”
on Claimant. R. 686-89. He diagnosed her under DSM-5 with
“Other Specified Bipolar and Related Disorder (With
Anxious Distress, Melancholic Features, and Mood Incongruent
Features, Moderate Severity[); ] Stimulant Use Disorder, In
Sustained Remission, Cocaine[; and] Other Specified
Personality Disorder (With Borderline and Antisocial
Features).” R. 689. Additionally, there are two reports
from state agency psychological ...