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Lamont Tyrone Cooper v. Michael J. Astrue


January 26, 2011


The opinion of the court was delivered by: Rufe, J.


Plaintiff Lamont Tyrone Cooper filed this action pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3) seeking judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for Supplemental Security Income benefits and Disability Insurance Benefits under Title II and Title XVI of the Social Security Act. Cooper seeks reversal of the Commissioner's decision on grounds that the Administrative Law Judge's ("ALJ") finding that Cooper is not disabled was not based on substantial evidence because the ALJ failed to consider timely-submitted medical evidence of Cooper's disability. In the alternative, Cooper seeks remand to a different ALJ. The Commissioner argues that the denial was based on substantial evidence and that the evidence the ALJ did not consider was submitted after the decision was issued, duplicated other evidence, and, regardless, would not have altered the outcome.

Magistrate Judge Timothy R. Rice issued a Report and Recommendation ("R&R") finding the ALJ's decision was not based on substantial evidence and recommending that this Court remand the Commissioner's final decision for consideration of all relevant evidence and augmentation of the administrative record. *fn1 No objections were filed. Upon this Court's thorough review of the record and the Parties' submissions, and its full consideration of the legal issues discussed in the R&R, *fn2 it will approve and adopt the Report and Recommendation and remand for further consideration consistent with this opinion and the R&R.


In May 2007, Cooper applied to the Social Security Administration ("SSA") for both Supplemental Security Income benefits and Disability Insurance Benefits. Cooper claimed several disabling impairments: asthma, hypertension, bipolar disorder with auditory and visual hallucinations, and residual limitations from a December 2007 stroke and a December 2008 arm fracture. Cooper alleged an onset date of December 12, 2007. *fn3

After his application was denied in January 2008, Cooper timely sought a hearing before an ALJ. Cooper was initially unrepresented, and the ALJ continued the hearing twice-once to give Cooper time to retain counsel and again apparently at the request of Cooper's attorney. *fn4

The hearing was ultimately held on March 9, 2009.

During the March 9 hearing, Cooper's attorney noted that he had been unable to obtain Cooper's medical records from his most recent mental health care provider, COMHAR, in part because he could not reach Cooper-who, he claimed, was effectively homeless-to obtain his written consent to release them. *fn5 Cooper's attorney, noting that he could execute the consent forms that day because Cooper was present at the hearing, asked to "have a chance to get those records." *fn6 Despite this explanation, the ALJ declined to keep the record open, noting the prior continuances and declaring that he could see no reason why future efforts to obtain the records would be more successful than past efforts. *fn7 The ALJ did commit, however, that he would consider any new evidence submitted "before a decision goes out." *fn8

On March 17, 2009, eight days after the hearing, Cooper's attorney faxed the COMHAR psychiatric treatment records to the ALJ. *fn9 Both the ALJ's Decision and Notice of Decision are dated March 19, 2009, *fn10 but the envelope containing the decision mailed to Cooper's attorney was postmarked March 17 and stamped "received" by his law office on March 18. *fn11 In that Decision, the ALJ applied the five-step sequential evaluation process *fn12 and found that some of Cooper's asserted impairments (stroke & arm fracture) were not severe, and that of the impairments the ALJ found were severe (asthma, hypertension and bipolar disorder) none met or equaled impairments enumerated by 20 C.F.R. Part 404, Subpart P, Appendix I ("Listed Impairments") that would permit a finding of per se disability. *fn13 After finding Cooper could not return to his prior line of work and determining his Residual Functional Capacity ("RFC"), the ALJ credited the testimony of a vocational expert that jobs exist in significant numbers in the national economy that Cooper could perform despite his impairments. *fn14 Following the ALJ's decision, Cooper timely sought review by the SSA Appeals Council, which declined to review the decision. *fn15 The COMHAR records were identified as Exhibits 13F, 14F, and 15F in the Record on appeal. *fn16 Cooper then filed the pending complaint in this Court.


A court reviewing a Social Security case must base its decision on the record of the administrative proceedings and the pleadings of the parties. *fn17 The court's review of legal issues is plenary, but its factual review is limited. *fn18 The court must determine whether the record contains substantial evidence to support the ALJ's factual findings, and whether the Commissioner applied the proper legal standards in making its decision. *fn19 For these purposes, "substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." *fn20 It is more than a mere scintilla, but requires less than a preponderance of the evidence. *fn21 If the ALJ's factual findings were determined according to the correct legal standards and are supported by substantial evidence, the court is bound by them, "even if [it] would have decided the factual inquiry differently." *fn22

A district court must review de novo those portions of a magistrate judge's Report and Recommendation to which a party has objected. *fn23 A court may in its discretion "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." *fn24


The dispute here centers on whether Cooper submitted the post-hearing COMHAR psychiatric treatment records before the ALJ issued his decision, obligating him to consider that evidence and explain why it was or was not credited. The COMHAR records take on particular importance because of the ALJ's emphasis on the limited objective medical evidence of Cooper's mental illness and resulting limitations. Though Cooper's attorney asked for the opportunity to submit those specific records, the ALJ declined to hold the record open. The factual ambiguities now presented to this Court-and which lead this Court to conclude remand is necessary-could have been avoided by simply deferring decision for a reasonable period of time to allow Cooper to submit his records.

Although the ALJ found that Cooper's bipolar disorder was a severe impairment, *fn25 he found it did not meet or equal the criteria for Affective Disorders in Section 12.04 of the Listed Impairments, or sufficiently limit him such that he could not engage in substantial gainful activity, largely because there was no objective medical evidence corroborating either Cooper's testimony regarding the severity of his mental illness or the consultative psychological examiner's assessment of his limitations. *fn26

Cooper testified that he had undergone regular treatment for his mental illness for the past four or five months preceding the hearing, seeing a therapist every two weeks and a psychiatrist once a month. *fn27 He testified that he hears voices every two days despite his medication, cannot cope with people, and suffers from persistent depression and memory problems. *fn28 Cooper also testified that he alternately lives with either his mother or girlfriend who perform the household chores, though he sometimes does the shopping and takes public transportation. *fn29 Cooper's girlfriend, Yolanda Jackson, testified that he has difficulty with anger and concentration, "hollers & screams," cannot get along with people, and has hallucinations. *fn30

In rejecting this testimonial evidence, the ALJ's decision repeatedly noted the lack of any medical records to support Cooper's claims of hallucinations and other severe limitations resulting from his disorder and treatment thereof. *fn31 He also found that Cooper's arm fracture-which Cooper claimed required a plate and two pins to repair *fn32 -did not impose any limitations because there was no objective medical evidence to support a finding that the break occurred. *fn33

The ALJ also considered the report of an independent psychological consultative examiner who reported that Cooper had been hospitalized for a psychiatric event, and found Cooper suffered from limited judgment, and had marked limitation in his ability to: (1) make judgments on simple work related decisions; (2) carry out detailed instructions; (3) interact appropriately with co-workers; (4) respond appropriately to work pressures in a usual work setting; and (5) respond appropriately to change in a routine work setting. *fn34 The ALJ gave little weight to these findings because the examiner was not Cooper's treating physician and at least some of the findings were based largely on Cooper's self-presentation and were uncorroborated by objective medical evidence. *fn35

The COMHAR psychiatric treatment records faxed to the ALJ on March 17 document regular treatment of Cooper's bipolar disorder from September 2008 to February 2009. They include a "Two-part Comprehensive Biopsychosocial Evaluation" in September and October 2008, an Outpatient Treatment Plan from September 2008, and regular clinical progress notes and medication assessments by Cooper's psychiatrist spanning the four-month period. *fn36 The records address almost exclusively the treatment (including counseling and medication) of Cooper's bipolar disorder, and make repeated reference to his auditory and visual hallucinations. The treatment notes identify Cooper's "barriers" as including anger, poor communications skills, lack of impulse control, and note his poor attention span, and poor judgment. *fn37 Cooper's physician prescribed risperidone and hydroxyzine pamoate for "treatment of bipolar disorder," noting that Cooper's "most recent episode" was "severe with psychotic features," and that Cooper was depressed. *fn38 The treatment plan recommended weekly therapy sessions and monthly medication management meetings with a psychiatrist to decrease his symptoms. *fn39 The notes indicated not only that Cooper's bipolar disorder appeared to be "symptomatic," but also that he appeared "paranoid." *fn40 In addition, one of the COMHAR medication assessment reports from late November 2008 notes that Cooper arrived for treatment with his forearm in a cast due to a fractured elbow, and included as part of a treatment plan direction to "get [his] elbow treated." *fn41

The Commissioner insists that the COMHAR records were submitted post-decision; Cooper insists the opposite is true. *fn42 Because the COMHAR records were faxed on March 17th and the ALJ's decision was postmarked on the 17th, received on the 18th, but dated the 19th, Magistrate Judge Rice concluded it was unclear whether the ALJ received the medical evidence prior to issuing his decision. Accordingly, he proceeded on the assumption that the COMHAR records were received prior to the ALJ's decision, *fn43 the only proper approach under the circumstances. The ALJ chose to date his decision March 19, and this Court cannot know whether the mailing of a copy to Cooper's counsel prior to that date was intentional or simply error. If the decision was rendered on the 17th, this Court cannot likewise determine whether it was finalized before or after the ALJ received Cooper's medical records that day. Accordingly, this Court finds that the date the decision was issued was to be the date on the face of the written decision. Considerations of equity support this presumption. The ALJ was on notice of both Cooper's intent to submit medical records, given that the obstacle of consent was removed, and of the importance of those records. His refusal to hold the record open is contrary to the SSA's own guidance suggesting that the Record be held open post-hearing, subject to time limits, when requested by a claimant, *fn44 and to the ALJ's obligation to develop the record fully. *fn45 Cooper's attorney offered a reasonable explanation for his inability to provide the records prior to the hearing *fn46 and acted promptly in providing the records only six business days after the hearing.

And, as the magistrate judge correctly noted, in Social Security cases, "leniency [should] be shown in establishing the claimant's disability" and the Secretary's responsibility to rebut an alleged disability "[should] be strictly construed." *fn47 Here, given the ambiguities regarding the date the decision was issued-something entirely within the control of the Commissioner-the Commissioner has not successfully rebutted Cooper's assertion that the evidence was timely submitted. Accordingly, the COMHAR records are properly considered as timely-submitted pre-decisional evidence. *fn48

Because the evidence was timely submitted, the ALJ was obligated to explicitly consider it in rendering his decision and explain why he declined to credit it. *fn49 Although the ALJ asserted that he considered "all the evidence and testimony of record, including exhibits of record not specifically cited in the opinion," *fn50 he did not append a list identifying which exhibits were included in the record he considered. And the decision itself makes clear that he gave no consideration to the COMHAR medical records. His decision never references any of the COMHAR medical records documenting the treatment of Cooper's bi-polar disease and is replete with concern about the lack of any corroborating evidence regarding the severity of Cooper's bi-polar disorder and the treatment thereof. The absence of such evidence appears to have been critical to the ALJ's conclusion regarding the severity of the impairment and the limitations it imposed. *fn51 For example, the ALJ concluded that:

Although the claimant has asserted that he also exhibits significant psychological impairments, the totality of the evidence fails to support the existence of any significant pathology capable of producing such severe and debilitating limitations as alleged by the claimant. No records have been submitted which support any disabling psychological impairment and there is nothing to support the claimant's allegations of ongoing hallucinations. *fn52

Had the ALJ considered the COMHAR records, he could not have reasonably drawn that conclusion. His failure to do so requires remand.

The Commissioner asserts that the ALJ considered "Exhibit 12"-an incomplete set of COMHAR medical records-because it was made part of the Record prior to appeal. *fn53 The Commissioner also asserts that Exhibit 14F merely duplicates Exhibit 12F, and that Cooper hasn't shown that any non-duplicative evidence in the additional exhibits is material. *fn54 The Commissioner is incorrect. Exhibit 14F includes clinical progress notes not included in exhibit 12F. *fn55 This information documents Cooper's psychiatric treatment and is clearly material to his claim. *fn56 This is particularly so given: (1) the ALJ's emphasis on the lack of any objective medical evidence regarding the severity and treatment of Cooper's mental illness; and (2) the records are those of treating psychologists and psychiatrists, which are given particular weight in these proceedings. *fn57 In any event, even if the ALJ considered the COMHAR records, his failure to discuss them and explain why he chose not to credit the information was reversible error. *fn58

Finally, the Court concludes that it should not make an independent determination of disability on this record because it has not been fully developed. *fn59 The ALJ should first conduct the five-step sequential process in light of all the evidence, including the complete set of COMHAR records. And because Cooper has not presented any facts suggesting the ALJ here was biased or not impartial, *fn60 beyond a generic assertion of the need for impartiality going forward, *fn61 the Court declines Cooper's invitation to reassign this matter.


For the foregoing reasons and those set forth in the Report and Recommendation, the Court approves and adopts the R&R and will remand for further consideration. An appropriate order follows.

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