NOTTAGE

v.

SAUL, COMMISSIONER OF SOCIAL SECURITY

on behalf of J.L.N., a minor,

Plaintiff, v. KILOLO KIJAKAZI,¹ Commissioner of Social Security,

Defendant. ________________________________/

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court on the August 29, 2022 Report and Recommendation of Magistrate Judge Jacqueline Becerra (“R&R”) (DE 31). The Court has also considered Defendant’s Objections to the R&R (DE 32) and Plaintiff’s Response to Defendant’s Objections (DE 33). The Court has carefully considered the R&R, the pertinent portions of the record, and is otherwise fully advised.

I. BACKGROUND

As background, Plaintiff Danielle Nottage, on behalf of her minor child J.L.N., originally filed a claim for Supplemental Security Income (“SSI”) before the Social Security Administration (“SSA”) on November 6, 2017. DE 20. The SSA initially denied Plaintiff’s claims on January 24, 2018 and denied them again upon reconsideration on July 20, 2018. Id. at 23, 83, 86, 96, 99.

July 15, 2021, on behalf of her minor son J.L.N. (“Plaintiff’s Motion”), seeking reversal of the decision of the Commissioner denying Plaintiff’s eligibility for disability benefits under Title XVI of the Social Security Act, and an award of benefits, or, in the alternative, remand for further administrative proceedings. DE 21. Then, Defendant filed her Motion for Summary Judgment with Supporting Memorandum of Law on August 16, 2021 (“Defendant’s Motion”), arguing that the correct legal standards were applied, and the ALJ’s decision is supported by substantial evidence.

DE 22, 23.

Magistrate Judge Becerra held a hearing on the Cross Motions on August 25, 2022. DE 30. Judge Becerra then issued a Report and Recommendation on August 29, 2022, recommending that

Plaintiff’s Motion for Summary Judgment be GRANTED, and Defendant’s Motion for Summary Judgment be DENIED, and the matter be remanded to the ALJ for further proceedings. See generally R&R. II. LEGAL STANDARD Taking into consideration Defendant’s objections, the Court reviews the R&R de novo. 28 U.S.C § 636(b)(1). A de novo review requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ.

When the objecting party has not properly objected to the magistrate judge’s findings, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” See Keaton v. United States, No. 14-21230-CIV, 2015 WL 12780912, at *1 (S.D. Fla. May 4, 2015). Judicial review of an ALJ’s final decision is limited to whether there is substantial evidence in the record to support the ALJ’s findings, and whether the correct legal standards were applied. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Wilson v. Barnhart, 284 F. 3d 1219, 1221 (11th Cir. 2002). “Substantial evidence is more than a mere scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F. 2d 1233, 1239 (11th Cir. 1983) (citing Richardson, 402 U.S. at 401).

III. DISCUSSION

The R&R recommends granting Plaintiff’s Motion for Summary Judgment because the ALJ’s decision was not supported by substantial evidence. See generally R&R. Specifically, the R&R reasons that although an ALJ can rely on a non-examining physician to support their functional assessment, the ALJ’s reliance here warrants remand; and the ALJ failed to adequately address Plaintiff’s IQ. Id. at 10, 18. Defendant objects to the R&R arguing that the ALJ was not required to evaluate the comments about the record at the initial and reconsideration level and that the ALJ considered J.L.N.'s IQ score when evaluating the evidence. However, the Court finds that Defendants objections were all raised and addressed at oral argument and in the R&R and should be denied. 1. The ALJ’s Relance on the Non-Examining Physician to Support Their Functional Assessment Warrants Remand As an initial matter, a claimant (Plaintiff) has the burden of proving his disability and is responsible for providing evidence in support of his claim. Ellison v. Barnhart, 355 F. 3d 1272,

1276 (11th Cir. 2003).

However, “[b]ecause a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic obligation to develop a full and fair record.” Larry v. Comm’r of Soc. Sec., 506 F. App’x 967, 969 (11th Cir. 2013) (citing Cowart v. Schweiker, 662 F. 2d 731, 735 (11th Cir. 1981)).

In fulfilling her duty to conduct a full and fair inquiry, the ALJ is not required to obtain additional information unless the record establishes that such an examination is necessary to enable the ALJ to render an informed decision. See Ingram v. Comm’r of Soc. Sec. Admin., 496 F. 3d 1253, 1269 (11th Cir. 2007); Holladay v. Bowen, 848 F. 2d 1206, 1210 (11th Cir. 1988). “In evaluating the necessity for a remand, [courts] are guided by whether the record reveals evidentiary gaps which result in unfairness or clear prejudice.” Brown v. Shalala, 44 F. 3d 931, 935 (11th Cir. 1995) (internal quotation marks omitted).

Such gaps exist when omitted medical records are relevant to the applicant’s claim of disability and the missing evidence might sustain the contention of an inability to work. See id. at 935–36. Defendant objects to the R&R arguing that the record was developed at the time of the

ALJ’s decision, and that the R&R fails to address any gaps in the record. DE 32 at 2-9. Specifically, Defendant argues that the need for a consultative examination at the initial or reconsideration level is not a prior administrative medical finding and the ALJ did not need to evaluate the disability examiner’s indication that a consultative examination was needed. Id. at 6.

Defendant also objects stating that the record was sufficient for the ALJ to determine whether Plaintiff proved he was disabled and whether the state agency doctors opinions were persuasive. Id. at 7.

The R&R aptly notes that “although an ALJ can rely on a non-examining physician, the Court must still turn to whether the ALJ’s findings in this case, which relied on these nonexamining physician opinions, were supported by substantial evidence.” R&R at 12. Here, the ALJ found the opinions of two state agency reviewers (the “Agency Opinions”) to be “persuasive” and relied on those opinions in finding that J.L.N. was not disabled. DE 17 at 29.

However, the R&R reasons that the ALJ’s finding is not supported by substantial evidence because the opinions that the ALJ relied on in making their determination note that further evaluation was necessary. R&R at 15 (citing Reeves v. Heckler, 734 F. 2d 519, 522 n.1 (11th Cir. 1984) (citation omitted)).

Further, the R&R also reasons that “the failure to articulate a basis for finding that the Agency Opinions are persuasive warrants remand.” R&R at 18. After careful review of the R&R, the record, and the pleadings, the Court finds that Judge Becerra’s R&R accurately found that the ALJ’s reliance on the non-examining physicians to support their assessment warrants remand. Further, these arguments were raised and addressed by the Magistrate Judge in her R&R and at oral argument. The ALJ’s failure to provide a basis for the finding that the two Agency Opinions are persuasive and the notation that further evidence is necessary warrant remand. The R&R correctly found that the findings in this case were not supported by substantial evidence.

2. The ALJ Failed to Adequately Address Plaintiff’s IQ Next, Defendant objects to The R&R’s explaining that the only mention of J.L.N’s IQ in the ALJ’s Opinion is the acknowledgment that J.L.N.’s IQ score “fell in the extremely low range of functioning.” DE 20 at 30. Defendant objects stating that the ALJ acknowledged that Plaintiff’s IQ score fell in the extremely low range of functioning, however, under 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00, the ALJ was required to consider the rest of the evidence, which Defendant claims she did here, in determining whether Plaintiff’s limitations functionally equaled an IQ listing. DE 32 at 9.

Defendant argues that Plaintiff has not shown that the ALJ’s evaluation of the IQ score is based on an improper legal standard. Id.

Plaintiff argued in her Motion for Summary Judgment that the ALJ failed to adequately consider all record evidence, specifically J.L.N’s IQ score. R&R at 18. Courts within the Eleventh Circuit have found an ALJ’s failure to consider the intellectual disability listing where a claimant’s IQ satisfies the criteria to be error warranting remand. See, e.g., Castro v. Berryhill, No. 15-cv- 1396, 2017 WL 1050074, at *4 (M.D. Fla. Mar. 20, 2017). The R&R explains that the only mention of J.L.N’s IQ in the ALJ’s Opinion is the acknowledgment that J.L.N.’s IQ score “fell in the extremely low range of functioning.” DE 20 at