793 F.3d 502 (5th Cir. 2015), 14-31058, Sun v. Colvin

Docket Nº:14-31058
Citation:793 F.3d 502
Opinion Judge:STEPHEN A. HIGGINSON, Circuit Judge.
Party Name:LESLIE SUN, Plaintiff - Appellant v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee
Attorney:For Leslie Sun, Plaintiff - Appellant: Adam Meunier, Melanie Leavitt, Law Offices of Melanie A. Leavitt, Metairie, LA. For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant - Appellee: Eric Dale Poole, Assistant Regional Counsel, Social Security Administration, Office of the Ge...
Judge Panel:Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
Case Date:July 17, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
SUMMARY

Plaintiff appealed the denial of her claims for disability insurance benefits (DIB) and supplemental security income benefits (SSI) based on a fractured ankle in 2011. The ALJ denied her claim, concluding that plaintiff's impairment did not equal the medical severity of an impairment listed in the C.F.R., which required plaintiff to show that her ankle injury rendered her unable to ambulate... (see full summary)

 
FREE EXCERPT

Page 502

793 F.3d 502 (5th Cir. 2015)

LESLIE SUN, Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee

No. 14-31058

United States Court of Appeals, Fifth Circuit

July 17, 2015

Appeals from the United States District Court for the Eastern District of Louisiana.

For Leslie Sun, Plaintiff - Appellant: Adam Meunier, Melanie Leavitt, Law Offices of Melanie A. Leavitt, Metairie, LA.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant - Appellee: Eric Dale Poole, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel Region VI, Dallas, TX; Jason M. Bigelow, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA.

Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.

OPINION

STEPHEN A. HIGGINSON, Circuit Judge.

Appellant Leslie Sun filed claims for disability insurance benefits (" DIB" ) and supplemental security income benefits (" SSI" ), alleging disability under the Social Security Act because of a fractured ankle that took place in May 2011. An administrative law judge (" ALJ" ) denied her claim, emphasizing that " the record contains very minimal evidence of medical treatment since the alleged onset date and no evidence of medical treatment since August 2011." In denying her claim, the ALJ concluded that Sun's impairment did not equal the medical severity of an impairment listed in the C.F.R., which required Sun to show that her ankle injury rendered her unable to ambulate effectively for a full year after the May 2011 onset. Sun requested review of her claim by the Appeals Council (" AC" ) and submitted additional medical records, which the ALJ did not have, indicating that Sun underwent surgery in December 2011. The AC made this additional evidence part of the record, but, providing no discussion of the newly submitted evidence, denied Sun's request for review. Sun now appeals, contending that the ALJ failed to fully and fairly develop the record by not obtaining all of her medical records before denying her claim. Because we are unable to determine, from review of the record as a whole, if substantial evidence supports the Commissioner's denial of benefits, we reverse and remand for further proceedings.

FACTUAL BACKGROUND

I. Sun's Medical Records & Recovery

On May 28, 2011, Sun went to the emergency room in Marietta, Georgia, seeking treatment for a fractured ankle, which she reported was a result of a domestic altercation. On June 15, 2011, Sun underwent surgery--an " [o]pen reduction, internal fixation" of her left ankle fracture--and a metallic plate and screws were placed along the ankle fracture. Shortly after her surgery, Sun moved to Louisiana. On August 18, 2011, Sun went to North Oaks Hospital in Hammond, Louisiana to have her cast removed. At that time, the x-ray of her ankle was " unremarkable" and revealed that the " hardware [was] in place." However, seven days later, Sun returned to North Oaks Hospital complaining of pain in her ankle that was a " 9/10" on the pain scale and reporting that she " noticed something poking out under the skin." The doctor examined Sun's ankle and noticed a " small nodule" but observed that there was " [n]o breaking skin no pressure noted to area" and that Sun was " in no acute distress." Sun left the hospital after being told that she needed to see an orthopedist. On August 31, 2011, Sun went to LSU Lallie Kemp Hospital Emergency Department, again reporting pain in her ankle. The examining doctor noticed an " [a]rea of air evident about the screw . . . which could represent some mild loosening."

On October 11, 2011, Sun was examined by Dr. Catherine DiGiorgio, who noted in a written report that Sun " did not follow up at all whatsoever" after her first ankle surgery. Dr. DiGiorgio recorded that Sun's " pain is daily, constant 8-10/10, burning, sharp, no medications, and no doctor." Dr. DiGiorgio's functional assessment of Sun was that " [s]he can push, pull, and reach with no difficulty. She cannot bear weight on the left ankle, so she was unable to crouch, squat, or stoop." Dr. DiGiorgio concluded:

. . . Currently, it appears that the assistive device is necessary. I believe the patient has not had a follow-up with the physician for postoperative surgery and screw appears to be emerging and docking out and orthopedic hardware that was placed is neglected. I believe the patient has neglected her health and she needs to be evaluated by a physician, who can follow up with her postoperatively. . . . [H]owever, the patient should not require crutches for longer than few weeks post surgery and she should not be using them any longer. However, given that she neglected to follow-up with the medical doctor for postoperative care, it is possible that she could require crutches right now because she could have abnormal healing. Again, I recommend this to be further evaluated by qualified orthopedic who can assess whether or not she needs to have surgery again or whether or not she had abnormal healing.

LSU clinical reports, which the ALJ did not have, indicate that in December 2011, about seven months after the onset of her injury, Sun had a second surgery, which included " [h]ardware removal and revision, open reduction and internal fixation" and bone grafting. The operating doctor detailed the surgery and noted that " [t]he patient will need to remain nonweightbearing for at least 6 weeks." On January 4, 2012, Sun had a two- week follow-up at the LSU clinic, during which the doctor removed her splint, put her in a CAM boot, and instructed her to " remain[] nonweightbearing for [an] additional 6 to 8 weeks and return to clinic." Sun returned to the clinic on April 11, 2012, at which time a doctor reported that " images today show some small callus confirmation; however, still no union. Today, we will allow her to begin weightbearing in her CAM boot. We will set her up with physical therapy for range of motion and straightening of the right ankle as well as give her exercises to perform at home." The last relevant medical report is dated June 4, 2012, slightly over twelve months after her initial injury. On that date, the doctor reported " healing of the distal fibula where [Sun] had her iliac crest bone graft placed. Malleolar hardware appears to be intact with no hardware failure. Plate appears to be in good position. Overall, joints at the base appears [sic] to be normal with only minimal lateral subluxation . . . ." The doctor took Sun out of her CAM boot and instructed her to " be weightbearing as tolerated."

II. Sun's Application for DIB & SSI

Meanwhile, in June and July of 2011, shortly after her initial injury, Sun filed an application for DIB and SSI. Based on medical assessments and projections of what Sun's functional capacity would be by May 2012, one year after she was injured, the Commissioner denied her application. In December 2011, Sun requested a hearing by an ALJ. The Office of Disability Adjudication and Review asked Sun to sign a medical authorization form so that the office could obtain her medical records. On April 27, 2012, and again on May 24, 2012, someone from that office sent a letter to the LSU Interim Hospital requesting Sun's medical records. No response was received before the ALJ held a hearing on July 20, 2012.

A. Hearing Before the ALJ

Sun waived her right to representation and participated in the hearing unrepresented. During the hearing, the ALJ explained that he had no medical records regarding her second surgery or subsequent visits to the LSU clinic and that there was " no documentation at all since August of last year . . . no medical records at all." Acknowledging a possible evidentiary gap, the ALJ questioned Sun about her second surgery and subsequent recovery. Because Sun thought the ALJ already had her medical records, she did not bring a detailed list of when everything took place. Sun estimated that she had the boot on her foot for six to eight weeks and that she stopped using crutches " [p]robably in May" of 2012. Later, however, Sun claimed that she still " usually" needed to use a crutch, especially if she would be walking long distances. Sun did not use a crutch the day of the hearing. Sun testified extensively about her physical capabilities and limitations as well as her daily routine.

The ALJ also questioned a Vocational Expert about Sun's past work and present capabilities. The Vocational Expert testified that given Sun's physical capabilities, she would not be able to perform any past work and that she had no transferable skills. The Vocational Expert then listed some positions that were both unskilled and...

To continue reading

FREE SIGN UP