United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. IRICK UNITES STATES MAGISTRATE JUDGE.
Ann Farnstrom (Claimant) appeals to the District Court from a
final decision of the Commissioner of Social Security (the
Commissioner) denying her application for disability
insurance benefits (DIB). Doc. 1; R. 1-5, 159-60. Claimant
argued that the Administrative Law Judge (the ALJ) erred by:
(1) failing to fully and fairly develop the record; and (2)
failing to apply the correct legal standards to the opinions
of Anne-Marie Nicolas, Psy.D. Doc. 17 at 9-14, 19-21. For the
reasons set forth below, it is RECOMMENDED
that the Commissioner's final decision be
THE ALJ'S DECISION
applied for DIB in September, 2012. R. 159-60. Claimant
alleged a disability onset date of December 2, 2011.
10, 2013, Claimant filed a written request for a hearing. R.
15. On July 20, 2015, Claimant appeared before the ALJ for a
hearing. R. 536. At the hearing, the ALJ informed Claimant of
her right to be represented at the hearing by an attorney or
non-attorney. R. 542-43. Claimant waived her right to
issued his decision on January 12, 2016. R. 15-26. In the
decision, the ALJ found that Claimant had the following
severe impairments: early degenerative disc disease of the
lumbar spine, cervical strain, bipolar disorder, and anxiety.
R. 17. The ALJ found that Claimant had a residual functional
capacity (RFC) to perform less than a full range of medium
work as defined by 20 C.F.R. §
404.1567(c). R. 19. Specifically, the ALJ found as
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform medium work as defined in 20
CFR 404.1567(c) with limitations. The claimant can lift,
carry, push, and pull 50 pounds occasionally and 25 pounds
frequently. The claimant can sit for 4 hours at one time for
a total of 8 hours in an 8-hour workday. The claimant can
stand and walk for 4 hours at one time for a total of 8 hours
in an 8-hour workday. The claimant can occasionally climb
ladders and can frequently climb stairs and ramps. The
claimant can frequently balance, stoop, kneel, crouch, and
crawl. The claimant is unable to perform complex tasks but
can perform simple and routine tasks consistent with
unskilled work and can maintain concentration on such tasks
for 2-hour periods with normal breaks and a lunch. The
claimant must interact with the public, co-workers, and
supervisors no more than occasionally.
Id. The ALJ posed a hypothetical question to the
vocational expert (VE) that was consistent with the foregoing
RFC determination, and the VE testified that Claimant was
capable of performing jobs in the national economy. R.
597-98. Therefore, the ALJ found that Claimant was not
disabled. R. 24-26.
STANDARD OF REVIEW
Social Security appeals, [the court] must determine whether
the Commissioner's decision is ‘supported by
substantial evidence and based on proper legal
standards.'” Winschel v. Comm'r of Soc.
Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations
omitted). The Commissioner's findings of fact are
conclusive if supported by substantial evidence. 42 U.S.C.
§ 405(g). 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 district court must view the evidence
as a whole, taking into account evidence 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)).
Failure to Fully and Fairly Develop the Record
has a basic duty to develop a full and fair record.
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997). This duty generally requires the ALJ
to assist in gathering medical evidence, and to order a
consultative examination when such an evaluation is necessary
to make an informed decision. See 20 C.F.R. §
416.912. There must be a showing that the ALJ's failure
to develop the record led to evidentiary gaps in the record,
which resulted in unfairness or clear prejudice, before the
court will remand a case for further development of the
record. Graham, 129 F.3d at 1423 (citing
Brown, 44 F.3d at 934-35).
argued that the ALJ failed to fully and fairly develop the
record. Doc. 17 at 9-14. Specifically, Claimant argued that
the ALJ erred by failing to request Claimant's medical
records from Richard D. Potts, M.D., a doctor whom Claimant
began seeing approximately one month prior to the hearing and
who opined that Claimant suffered from limitations more
severe than those that the ALJ accounted for in the RFC.
Id. Claimant argued that Dr. Potts' records were
“extremely important” to her case, especially
given the ALJ's decision to reject Dr. Potts'
opinion, in part, because the opinion was “not
supported by findings contained in [Dr. Potts'] own
treatment records.” Id. She argued that the
ALJ did not have all of the medical records necessary to make
that finding and that there was no documentation in the
record of any of Claimant's visits with Dr. Potts'
from prior to September 2015. Id.
response, the Commissioner argued, in part, that Claimant
“made no showing that Dr. Potts had additional
records.” Id. at 14-19. The undersigned
20, 2015, Claimant appeared before the ALJ for a hearing. R.
536. At the hearing, the following exchange took place with
regard to Dr. Potts:
Q Who's, who's Dr. Potts?
A He's a new doctor that I started seeing and helped me
get back on medicine.
A He's probably not in your records.
A He's - - that, that was the form I brought today. He
filled out a functional -- residual functional capacity form
for me so.
Q So where's his treatment record, though?
A You mean as far as his records?
A I'd probably have to get them and submit them for you.
Q I mean, I could order for you - -
Q I mean, that opinion that I (PHONETIC) have not treatment