United States District Court, N.D. Alabama, Northwestern Division
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
Hill filed this Social Security appeal on December 18, 2017.
(Doc. 1). On November 30, 2018, the magistrate judge entered
a report in which he recommended that the Court affirm the
Commissioner's decision denying Mr. Hill's claim for
Disability Insurance Benefits. (Doc. 13, pp. 1, 30). The
magistrate judge advised the parties of their right to file
objections within 14 days. (Doc. 10, pp. 30-31). To date, no
party has filed objections to the magistrate judge's
report and recommendation.
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A
district court reviews legal conclusions in a report de
novo and reviews for plain error factual findings to
which no objection is made. Garvey v. Vaughn, 993
F.2d 776, 779 n.9 (11th Cir. 1993); see also LoConte v.
Dugger, 847 F.2d 745, 749 (11th Cir. 1988); Macort
v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir.
2006).The Court finds no misstatements of law in
the report and no plain error in the magistrate judge's
description of the relevant facts.
the absence of objections, the Court will accept the
magistrate judge's recommendation, but the Court does so
only because of the procedural posture of this case. Had this
Court made the initial decision in this appeal, the Court
would have remanded this case for further proceedings. Mr.
Hill suffers from mental health conditions that are so severe
that he had to undergo electroconvulsive therapy (ECT) three
times per week between October 2016 and December 2016. (Doc.
13, p. 16). The ALJ was made aware of the first 12 of these
treatments in November 2016 when Mr. Hill's attorney
submitted to the ALJ a letter from Dr. Kumaramangalam, one of
Mr. Hill's treating psychiatrists. In the letter, Dr.
Kumaramangalam discussed the treatments. (Doc. 7-18, pp.
49-50). Dr. Kumaramangalam wrote that when he saw Mr. Hill on
November 9, 2016, Mr. Hill “was very depressed,
psychomotor retarded with no drive or motivation and
cognitive decline.” (Doc. 7-18, p. 50). In his opinion,
the ALJ acknowledged that Mr. Hill has received a number of
significant mental health diagnoses from Dr. Kumaramangalam
and others, but the ALJ disregarded much of the information
in Dr. Kumaramangalam's treatment notes because the notes
are mostly illegible, and Dr. Kumaramangalam was not willing
to transcribe his notes for Mr. Hill's attorney. (Doc.
7-3, p. 14; Doc. 7-18, p. 49). The ALJ acknowledged that Mr.
Hill had received “Electro-vestive treatment times
12” from Dr. Mahaffey, but the ALJ did not request Dr.
Mahaffey's treatment records.
social security proceedings are not adversarial, an ALJ
“has a basic obligation to develop a full and fair
record.” Graham v. Apfel, 129 F.3d 1420, 1422
(11th Cir. 1997); see also Wilson v. Apfel, 179 F.3d
1276, 1278 (11th Cir. 1999). “Treating physicians
should be re-contacted when the evidence from that physician
is insufficient to determine whether the claimant is
disabled.” Prince v. Commissioner, Soc. Sec.
Admin., 551 Fed.Appx. 967, 972 (11th Cir. 2014). In
evaluating whether an ALJ's failure to develop the record
requires remand, a court “must decide ‘whether
the record reveals evidentiary gaps which result in
unfairness or clear prejudice.'” Prince,
551 Fed.Appx. at 972 (quoting Brown v. Shalala, 44
F.3d 931, 935 (11th Cir. 1995)). This court and other courts
in this circuit, following persuasive authority from other
circuit courts of appeal, have held that remand is
appropriate when an ALJ fails to seek clarification and
supplementation of important evidentiary material that is
illegible. See Hughes v. Berryhill, 2017 WL 4099884
(N.D. Ala. Sept. 15, 2017) and cases cited in
the ALJ had a duty to develop information concerning Mr.
Hill's mental health deficits by pursuing clarification
from Dr. Kumaramangalam and records from Dr. Mahaffey. If Dr.
Kumaramangalam was unwilling to transcribe his notes
recounting his many months of treating Mr. Hill for Mr.
Hill's attorney, then the ALJ should have contacted Dr.
Kumaramangalam. See Cole v. Berryhill, 2017 WL
4124871 (N.D. Ala. Sept. 18, 2017). And the ALJ should have
requested records from Dr. Mahaffey. Had he done so, he would
have learned that in September 2016, Dr. Mahaffey diagnosed
Mr. Hill with uncontrolled bi-polar disorder, uncontrolled
generalized anxiety disorder, and uncontrolled agoraphobia
with panic disorder, and Dr. Mahaffey described Mr. Hill as
high risk. (Doc. 7-5, p. 4). In September 2016, Dr. Mahaffey
reported that Mr. Hill's eye contact was poor and
avoidant, his thought process was dull, and his memory was
impaired, and he was partially non-verbal. (Doc. 7-5, p. 20).
The magistrate judge's opinion describes additional
significant information contained in Dr. Mahaffey's
records. (Doc. 13, pp. 15-19). If the Court were writing on a
clean slate, the Court would find that the failure to gather
this information created an evidentiary gap that was unfair
to Mr. Hill.
of the posture of this case, the Court will issue a separate
final judgment affirming the Commissioner's decision.
 When a party objects to a report in
which a magistrate judge recommends dismissal of the action,
a district court must “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is ...