PEREZ ADAMES

v.

COMMISSIONER OF SOCIAL SECURITY

ORDER1

This cause comes before the Court on Plaintiff's appeal of an administrative decision denying his claim for Disability Insurance Benefits (“DIBs”), alleging March 14, 2018, as the disability onset date. (Doc. 30 at 1.) In a decision dated October 14, 2020, the Administrative Law Judge (“ALJ”) found that Plaintiff was not disabled. (Tr. 49.) Plaintiff has exhausted his available administrative remedies and the case is properly before the Court. The undersigned has reviewed the record, the parties’ memoranda (Docs. 30, 33, 36), and the applicable law. Upon consideration, the Court determines that the Commissioner’s final decision is due to be reversed.

I. ISSUES ON APPEAL

Plaintiff asserts the following four issues on appeal: 1. Whether remand is required as the ALJ failed to translate all documents in the record from Spanish to English. 2. Whether the ALJ failed to properly address the severity of Mr. Adames’s hearing impairment. 3. Whether the ALJ’s mental RFC assessment is supported by substantial

evidence. 4. Whether the ALJ properly evaluated the severity of Mr. Adames’s subjective complaints. (Doc. 30 at 4.)

II. STANDARD OF REVIEW

The Eleventh Circuit has stated:

In Social Security appeals, we must determine whether the Commissioner’s decision is supported by substantial evidence and based on proper legal standards. Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. We may not decide the facts anew, reweigh the evidence, or substitute our judgment for that of the [Commissioner].

Winschel v. Comm’r of Soc. Sec., 631 F. 3d 1176, 1178 (11th Cir. 2011) (citations and quotations omitted). “With respect to the Commissioner’s legal conclusions, however, our review is de novo.” Lewis v. Barnhart, 285 F. 3d 1329, 1330 (11th Cir. 2002).

III. ANALYSIS

Plaintiff asserts that remand is required because several of Plaintiff’s medical records were never translated from Spanish to English, including: • Plaintiff’s Function Report dated November 20, 2018 (Tr. 292–99) (Ex. 3E); • Plaintiff’s Pain Questionnaire dated November 28, 2018 (Tr. 300–01) (Ex. 4E); • Portions of progress notes from Samuel L. Rivera Natal M.D. at Poliartralgias, dated October 2010 through October 2013 (Tr. 398–404, 406–407, 421) (Ex.

1F); and • Office Treatment Records from Bufette Elmer Martinez Rivera PSC, regarding Plaintiff’s depression, dated September 20182 to October 2018 (Tr. 611–20) (Ex. 14F). (Doc. 30 at 4.) The Commissioner concedes that portions of the record were never translated from Spanish to English but asserts that Plaintiff has failed to show any prejudice because of this. (Doc. 33 at 5.) The ALJ has a fundamental duty “to develop a full and fair record.” Graham v. Apfel, 129 F. 3d 1420, 1422 (11th Cir. 1997). In determining whether a case should be remanded for lack of development of the record, the Court considers “whether the record reveals evidentiary gaps which result in unfairness or clear prejudice.” Id. at

ALJ was unable to compare these prior reports to Plaintiff’s later Function Report, dated April 22, 2019, which the ALJ relied on extensively throughout the opinion. (Doc. 30 at 7); (Tr. 39, 40, 47.) Additionally, Plaintiff asserts that Exhibit 14F, which also was not translated into English, “appears to contain psychiatric records.” (Doc. 30 at 7.) Plaintiff states that because the ALJ found that Plaintiff had a severe impairment of “depressive disorder,” but ultimately determined in the Residual Function Capacity (“RFC”) that Plaintiff could “apply commonsense understanding to carry out detailed, but uninvolved written or oral instruction,” this record is highly relevant. (Doc. 30 at 7); (Tr. 36, 40.) Plaintiff states that “[w]hether the documents that were not translated would have made a difference to these findings is unknown.” (Doc. 30 at 7.) The Commissioner responds by arguing that this is not enough to show prejudice, and thus, Plaintiff has not demonstrated entitlement to a remand. (Doc. 33 at 5–7.) Plaintiff applied for DIBs on November 12, 2018. (Tr. 34.) As such, the relevant period for establishing disability began on the alleged onset date, March 14, 2018, through his last insured date, March 31, 2024. (Tr. 34, 36); see 42 U.S.C. § 423(c). To be eligible for DIBs benefits, the claimant must be under a disability during the insured period. Id.; Moore v. Barnhart, 405 F. 3d 1208, 1211 (11th Cir. 2005) (“For DIB claims, a claimant is eligible for benefits where [ ]he demonstrates disability on or before the last date for which [ ]he [was] insured.”) Therefore, three of the four sets of documents Plaintiff identified as untranslated undisputedly fall within the relevant time period—

the November 2018 Function Report (Ex. 3E), the November 2018 Pain Questionnaire (Ex. 4E), and the late 2018 records of Martinez Rivera (Ex. 14F).³ In Rivera v. Commissioner of Social Security, the court found that because portions of Plaintiff’s treating physicians’ records were not translated from Spanish to English,

“the ALJ could not competently assess the record to determine the extent of Plaintiff's symptoms” during the relevant time period. No. 21-CV-1498 (KHP), 2022 WL 3210441, at *9 (S.D.N.Y. Aug. 9, 2022). The court found prejudice as a result because “the untranslated portions . . . related to the severity of [plaintiff’s] mental health symptoms during a key time period” despite some of the symptoms being discussed in

English elsewhere in the record. Id. The court found it important that the ALJ be able to analyze “the severity and prevalence of . . . symptoms over the course of the full period at issue.” Id.

IV. CONCLUSION

Upon consideration of the foregoing, it is ORDERED and ADJUDGED that: 1. The Commissioner’s final decision in this case is REVERSED AND REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 2. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff and CLOSE the file. DONE and ORDERED in Orlando, Florida on February 21, 2023.

gM KIDD

UNITED STATES MAGISTRATE JUDGE