United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
LaToyia Traimaine Gibbons seeks judicial review of the Social
Security Administration's denial of her application for
Supplemental Security Income (“SSI”) and
Disability Insurance benefits.
social security cases, courts
. . . review the Commissioner's decision for substantial
evidence. Winschel v. Comm'r of Soc. Sec., 631
F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence
is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a
conclusion.” Id. (quotation omitted). . . .
“We may not decide the facts anew, reweigh the
evidence, or substitute our judgment for that of the
Commissioner.” Winschel, 631 F.3d at 1178
(quotation and brackets omitted). “If the
Commissioner's decision is supported by substantial
evidence, this Court must affirm, even if the proof
preponderates against it.” Dyer v. Barnhart,
395 F.3d 1206, 1210 (11th Cir. 2005) (quotation omitted).
Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d
780, 782 (11th Cir. 2014).
burden of proving disability lies with the claimant.
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir.
2005). The ALJ applies
. . . a five-step, “sequential” process for
determining whether a claimant is disabled. 20 C.F.R. §
404.1520(a)(1). If an ALJ finds a claimant disabled or not
disabled at any given step, the ALJ does not go on to the
next step. Id. § 404.1520(a)(4). At the first
step, the ALJ must determine whether the claimant is
currently engaged in substantial gainful activity.
Id. § 404.1520(a)(4)(i). At the second step,
the ALJ must determine whether the impairment or combination
of impairments for which the claimant allegedly suffers is
“severe.” Id. § 404.1520(a)(4)(ii).
At the third step, the ALJ must decide whether the
claimant's severe impairments meet or medically equal a
listed impairment. Id. § 404.1520(a)(4)(iii).
If not, the ALJ must then determine at step four whether the
claimant has the RFC to perform her past relevant work.
Id. § 404.1520(a)(4)(iv). If the claimant
cannot perform her past relevant work, the ALJ must determine
at step five whether the claimant can make an adjustment to
other work, considering the claimant's RFC, age,
education, and work experience. An ALJ may make this
determination either by applying the Medical Vocational
Guidelines or by obtaining the testimony of a [Vocational
Expert (VE)]. Stone v. Comm'r. of Soc. Sec.
Admin., 596 F. App'x, 878, 879 (11th Cir. 2015)
who was 36 years old when her claims were denied, alleges
disability beginning on December 15, 2012. Tr. 40. She has
some college education and past job experience as a child
monitor, cashier, stocker, security guard, and
housekeeper/cleaner. Tr. 26-27. After a hearing, the ALJ
issued an unfavorable decision. Tr. 13-27. She found that
Gibbons' status post-Hodgkin's lymphoma, degenerative
disc disease of the thoracic and lumbar spines, adjustment
disorder, and anxiety disorders were severe but did not meet
or medically equal a Listing. Tr. 15-21. The ALJ found that
Gibbons retained the RFC for light work except she could
occasionally climb stairs, balance, kneel, and stoop but
never climb ladders or crawl; and she should avoid
concentrated exposure to unprotected heights and hazardous
machinery. Tr. 21. Gibbons also was limited to work involving
simple and low-level detailed tasks and only occasional
decision-making, changes in the workplace, and interaction
with co-workers or the public. Id. Plaintiff, she
determined, could perform her past relevant work as a
housekeeper. Tr. 26. Gibbons disagrees, arguing that the ALJ
failed to develop the record to show that plaintiff was
disabled for a continuous period of 12 months, to examine
evidence of plaintiff's disabling limitations prior to
the date of her biopsy for Hodgkin's disease, and to
include pre-biopsy limitations of Hodgkin's disease in
the RFC. Docs. 12 & 16.
was diagnosed with Hodgkin's lymphoma after a biopsy in
April of 2014. Tr. 538. Gibbons alleges, however, that her
Hodgkin's lymphoma “went undiagnosed for several
months, despite complaints.” Doc. 12 at 7-12 (citing
pre-biopsy emergency room visits and other complaints of
abdominal pain). Had the ALJ properly incorporated
the effects of Hodgkin's lymphoma pre-biopsy,
she argues, the ALJ would have found plaintiff disabled for a
period of 12 months. Id. At bottom, plaintiff
presents two issues for review: whether the ALJ failed to
develop the record as to her pre-existing Hodgkins lymphoma,
and whether the ALJ should have applied SSR 83-20.
is well-established that the ALJ has a basic duty to develop
a full and fair record.” Ellison v. Barnhart,
355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20
C.F.R. § 416.912(d) (“[b]efore we make a
determination that you are not disabled, we will develop your
complete medical history for at least the 12 months preceding
the month in which you file your application”);
Brown v. Shalala, 44 F.3d 931, 934 (11th Cir.
1995)). However, “the claimant bears the burden of
proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his
claim.” Id. (citing 20 C.F.R. §
416.912(a) (“[claimant] must furnish medical and other
evidence that we can use to reach conclusions about your
medical impairment(s)”); 20 C.F.R. § 416.912(c)
(“[y]our responsibility[:] You must provide medical
evidence showing that you have an impairment(s) and how
severe it is during the time you say you are
disabled”). Even if an ALJ fails to fulfill his duty to
develop the record, remand is only required if “the
record reveals evidentiary gaps which result in unfairness or
clear prejudice.” Mosley v. Acting Com'r of
Soc. Sec. Admin., 633 Fed.Appx. 739, 742 (11th Cir.
2015) (quoting Shalala, 44 F.3d at 934-36).
contrary to Gibbons' argument, the ALJ did
inquire into all of the facts and circumstances surrounding
her alleged impairment, including her pre-biopsy trips to the
emergency room for abdominal pain. Tr. 16-17, citing
tr. 393-427, 465-555. From December 2012, when she was
diagnosed with a small hiatal hernia and colonic
diverticulosis, through the summer of 2013, when she was
diagnosed with left renal colic, plaintiff repeatedly treated
for pain and other symptoms localized in her abdomen.
See tr. 349, 400, 410, 424, 426. Plaintiff also
sought medical care at the emergency room following a motor
vehicle accident in February of 2014. Tr. 487-493. In all
that time, no one found (or suspected) Hodgkin's lymphoma
as the source of her malady. More importantly, as the
Commissioner has noted, “no physician or other medical
source opined that these earlier episodes of abdominal pain
were the result of undiagnosed Hodgkin's.” Doc. 15
at 6. Likewise, the medical records considered by the ALJ
neither identify any diagnosis for Hodgkin's prior to the
biopsy date or offered any suggestion that plaintiff's
treating physician ...