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Lacapra v. Commissioner of Social Security

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

February 15, 2018

ALFREDA ALTERMESE LACAPRA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE.

         Alfreda 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.

         I. STANDARD OF REVIEW

         The 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)).

         II. ANALYSIS

         Claimant 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, 21-23.

         A. Duty to Fully and Fairly Develop the Record

         Claimant 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).

         An ALJ 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).

         A 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 Cir. 1982)).

         Claimant 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.

         The ALJ 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 ...


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