Opinion

SCALES v. BISIGNANO

Court
District Court, M.D. North Carolina
Filed
Sep 30, 2025
Cited by
0 cases
Authority
More cited than 39.6%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KATHLEEN 6., )

)

Plaintiff, )

)

v. ) 1:24CV507

)

FRANK BISIGNANO, )

Commissioner of Social Security,! )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Kathleen S. (“Plaintiff”), proceeding pro se, brought this action pursuant to

Section 205(g) of the Social Security Act (the “Act”), as amended (42 U.S.C. §§ 405(g) and

1383(c)(3)), to obtain judicial review of a final decision of the Commissioner of Social Secutity

discontinuing her disability benefits under Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) under, respectively, Titles II and XVI of the Act. The

parties have filed cross-motions for judgment, and the administrative record has been certified

to the Court for review.

I. PROCEDURAL HISTORY

In a decision dated December 8, 2011, the Social Security Administration found

Plaintiff disabled under Titles II and XVI of the Act beginning on March 1, 2007, primarily

1 The United States Senate confirmed Frank Bisignano as the Commissioner of Social Security on May 6, 2025,

and he took the oath of office on May 7, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedute,

Frank Bisignano should be substituted as the Defendant in this suit. Neither the Court nor the parties need

take any further action to continue this suit by reason of the last sentence of section 205(g) of the Social Security

Act, 42 U.S.C. § 405(g).

based on Plaintiffs mental impairments including borderline intellectual functioning, and

Plaintiff began receiving disability benefits as of that date. (Ir. at 237-43.)? The payments

made to her husband as her appointed representative based on the determination that

she could not manage payments in her own interest. (Ir. at 243, 445.) However, the agency

ceased her benefits in April 2014 after she failed to cooperate with a continuing benefits review

and the in-file documentation alone was considered insufficient to evaluate Plaintiffs

condition. (Tr. at 45, 246-48, 348-57.) Plaintiff appealed the termination of benefits and

requested a hearing. Plaintiff failed to appear for both the initial hearing and a rescheduled

hearing, and on January 29, 2019, the AL] issued an unfavorable decision on the record alone.

(Tr. at 45, 249-53.) Plaintiff appealed the AL]’s decision, noting various reasons for her failure

to cooperate in the review and attend the disability hearings, including a change of address

that was not properly updated by the agency. (See also Tr. at 81.) On December 16, 2019,

the Appeals Council granted Plaintiffs request for review. (Tr. at 257-58.) In doing so, the

Appeals Council explained that “the record upon which the [AL]] based the decision could

not be located” or redeveloped and, because of this, the Appeals Council could not determine

whether the ALJ’s decision was supported by substantial evidence. (Tr. at 257.) Accordingly,

Plaintiff was given the opportunity for a new hearing, as well as the opportunity to submit

additional evidence. (Tr. at 257.)

On October 5, 2022, Plaintiff, along with her husband, who served as het non-attorney

representative, attended the subsequent telephonic hearing, at which Plaintiff and an impartial

vocational expert testified. (Tr. at 45, 62-127.) Following the hearing, the ALJ concluded that

2 Transcript citations refer to the Sealed Administrative Recotd [Doc. #6].

by April 1, 2014, there had been a decrease in severity of her impairments such that she no

longer had any impairments that affected her ability to work. (T'r. at 48-54.) The AL] therefore

founds that her disability ended on April 1, 2014, and that she had not become disabled again

since that date. (Tr. at 53.) On April 22, 2024, the Appeals Council denied Plaintiffs request

for review of that decision, thereby making the AL]’s conclusion the Commissionet’s final

decision for purposes of judicial review. (I'r. at 1-7.)

II. LEGAL STANDARD

Federal law “authorizes judicial review of the Social Security Commissionet’s dental of

social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144

(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d

396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the

AL) if they are supported by substantial evidence and were reached through application of the

correct legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal

quotation omitted).

“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)

(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere

scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270

F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is

evidence to justify a refusal to direct a verdict were the case before a jury, then there is

substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to tre-weigh

conflicting evidence, make credibility determinations, or substitute its judgment for that of the

[AL}].” Mastro, 270 F.3d at 176 (@nternal brackets and quotation marks omitted). “Where

conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the

responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before

[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the

ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was

reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,

589 (4th Cir. 1996).

In undertaking this limited review, the Court notes that “[a] claimant for disability

benefits beats the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.

1981). In this context, “disability” means the “inability to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” Id. (quoting 42 U.S.C. § 423(d)(1)(A)).

“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,

667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the

Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

5 “The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance

Program (SSDI), established by Title II of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to

disabled persons who have contributed to the progtam while employed. The Supplemental Security Income

Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to

indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for

determining disability, see 20 C.F.R. pt. 404 (SSDI); 20 CER. pt. 416 (SSI), governing these two programs are,

in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1.

of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the

tequitements of a listed impairment; (4) could return to her past relevant work; and (5) if not,

could perform any other work in the national economy.” Id.

A finding adverse to the claimant at any of several points in this five-step sequence

forecloses a disability designation and ends the inquiry. For example, “[t]he first step

determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is

working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.

If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 4th Cir. 1990).

On the other hand, if a claimant carries his or her burden at the first two steps, and if

the claimant’s impairment meets or equals a “listed impairment” at step three, “the [claimant]

is disabled.” Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,

but falters at step three, ie., “[i]f a claimant’s impairment is not sufficiently severe to equal or

exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional

capacity (RFC’).” Id. at 179.4 Step four then requires the AL] to assess whether, based on

that RFC, the claimant can “perform past relevant work”; if so, the clatmant does not qualify

as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior

work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

+ “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d

at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8

hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks

omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s

“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations

(mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the AL] only after

[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”

Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s

impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide

““whether the claimant is able to perform other work considering both [the claimant’s RFC]

and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its

“evidentiary burden of proving that [the claimant] remains able to work other jobs available

in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.

Notably, after a claimant qualifies for benefits under the Act, the decision to award

benefits remains subject to a periodic continuing disability review, see 20 C.F.R. § 416.989, in

which the agency utilizes the prior determination granting benefits — the comparison point

decision (“CPD”) — as a reference to evaluate whether any medical improvement has

occutted relating to the claimant’s ability to work, see 42 U.S.C. § 423(f); 20 CFR.

§ 416.994(b) (1) (vii). To make this determination, the Commissioner employs the following,

seven-step evaluation:

1) Do the claimant’s impairments meet or medically equal the severity of any

listed impairments?

2) If not, has there been any medical improvement in the severity of the

claimant’s impairments?

3) If medical improvement has occurred, does such improvement relate to the

claimant’s ability to work

4) Ifno medical improvement has occurted, does an exception apply?

5) If medical improvement relates to the claimant’s ability to work, do the

claimant’s current impairments, singly or in combination, qualify as severe

6) If severe impairments exist, does the claimant’s RFC permit the

performance of past relevant work?

7) If not, does the claimant have the RFC to perform other work existing in

significant numbers in the national economy?

See 20 C.F.R. § 416.994(b)(5). If the claimant can do her past work or other work, the ALJ

will determine that her disability has ended. Id.

As with the initial disability review, the issue before court remains whether the ALJ’s

findings are supported by substantial evidence and were reached based upon a cottect

application of the law. Craig, 76 F.3d at 589.

I. DISCUSSION

In the present case, the ALJ first noted that in Plaintiffs prior, favorable December 8,

2011 comparison point decision, Plaintiffs disability stemmed from the following severe

impairments:

low back pain, dizziness, headaches, borderline intellectual functioning,

agotaphobia, social phobia and adjustment disorder with anxiety, and

depression|.]

(Ir. at 47.) At that time, these impairments resulted in an RFC which precluded substantial

gainful employment because she “lack(ed) the ability to complete even simple tasks on a

sustained basis.” (It. at 47.) That prior 2011 decision noted that Plaintiff had a Full-Scale IQ

scote of 72, with agoraphobia, social phobia, adjustment disorder, and borderline intellectual

functioning. (Tr. at 240.) That 2011 decision further noted that the results of a consultative

psychological examination reflected that Plaintiff was precluded from all work activity, and the

RFC determination reflected that she had “no tolerance for any work stress” and “she lacks

the ability to complete even simple tasks on a sustained basis for an 8-hour workday or 40

hour workweek.” (T't. at 240-41.) As noted above, Plaintiffs husband was appointed as her

representative to receive her disability payments because she could not manage the payments

in her own interest.

In the present 2023 decision on appeal in this case, the ALJ determined that, based on

the updated record, medical improvement occurred on April 1, 2014. (Tr. at 48.) In making

this finding, the ALJ pointed only to the fact that “the record indicates a large gap in treatment

with no treatment taking place from around 2011 to 2018.” (Tr. at 48.) The ALJ further

found that, “[s]ince April 1, 2014, [Plaintiffs] impairments have not caused more than a

minimal impact on [her] ability to perform basic work activities. Therefore, [Plaintiff] no

longer has a sevete impaitment or combination of impaitments.” (Tr. at 48.) Accordingly,

the AL] concluded that Plaintiffs “disability ended on April 1, 2014, and [that she] has not

become disabled again since that date.” (Tr. at 53.)

Plaintiff now raises seven challenges to the ALJ’s decision. Specifically, Plaintiff

contends that (1) “the SSA’s failure to include SS Form 561-U2 and other key documents in

the record violated [Plaintiffs] due process tights,” (2) “the AL] failed to properly consider

[Plaintiff's] verbal good cause for failing to cooperate at the initial level and reconsideration,

especially given the documented change of address and personal hardships,” (3) “the ALJ

impropetly assessed [Plaintiff's] RFC, given her documented impairments, including cervical

stenosis, lumbar stenosis, depression, and cancer,” (4) “the ALJ erred by failing to obtain

updated medical opinions from the state agency consultants, especially given [Plaintiffs]

significant impairments from 2017-2023,” (5) “the ALJ’s finding of medical improvement as

of April 2014 was [not] based on substantial evidence,” (6) “the AL] improperly refused to

accept evidence from [Plaintiffs] representative during the August 2015 hearing, violating her

tight to a full and fair hearing,” and (7) “the court should reopen the case due to inaccuracies

in the October 2022 transcript and the failure to provide a functional audio recording for

review.” (PL’s Br. [Doc. #12] at 2-3.)

As noted above, the case was before the ALJ in 2023 because the Appeals Council had

previously remanded this matter in 2019 after concluding that “the record upon which the

[ALJ] based the decision could not be located” or redeveloped. (Tr. at 257.) The issue of

whether the record before the ALJ on remand was both (1) complete and (2) accurately

reflected Plaintiffs condition post April 1, 2014 therefore lies at the heart of the case now

before the Court.

Notably, given the inability to locate the record, Plaintiff was to be provided the

opportunity to submit evidence to the AL] in the context of that hearing so that the record

could be redeveloped “including any available medical evidence.” (T'r. at 257.) However, the

heating transcript reflects significant confusion regarding the submission of such evidence.

The confusion began with the appointment of Plaintiffs husband, Alan Scales, as her non-

attorney representative. Mr. Scales apparently served in this capacity during Plaintiffs initial

hearing eleven years earlier, but had not completed new paperwork to serve as his wife’s

representative in the present termination case. (Tr. at 66-67.) The ALJ also noted that, “to

be a tepresentative, a non-attorney representative, you must be a qualified person that

understands [the] rules and regulations of Social Security, the disability laws.” (Tr. at 67.) She

also indicated that she “was assuming that [Mr. Scales] had other cases,” although Mr. Scales

made cleat that he did not represent any other people in social security cases and that he had

never been paid for his work as a representative. (Ir. at 66-68.) Nevertheless, Plaintiff

indicated that she wanted her husband to represent her, and the ALJ allowed him to act in this

capacity during the hearing. (Tr. at 69.)

Unfortunately, Mr. Scales initially failed to discern the difference between submitting

actual medical records rather than just the requests or releases for those records. He was also

unaware of his duty, as his wife’s representative, to submit requests directly to the providers:

REP: Yeah, five business days before we sent the records, and prior to that,

we sent tecords. As well as that, we sent some records on — let me see the date

here —August 12, and this is —it was sent certified mail. It was accepted by an

individual [at the Concord Social Security Office] at 3:16 p.m.

ALJ: Allright. □□ □□ —is that actual records or was that the —

REP: It was records, ma’am. It was —

ALJ: Okay.

REP: -- medical records.

ALJ: For which —

CLMT: It was medical release records.

REP: A medical release form, medical records. It was what you asked for in

yout letter.°

ALJ: Okay. I do —I see the release. I see a list of recent medical treatment,

but I don’t see actual medical records. .... Do you understand the difference?

CLMT: I don’t know. I didn’t submit the medical records. I just —

REP: She submitted, you know . . . the release form for you to tecetve the

medical records .. . you know, yourself.

5 Ina letter to Plaintiff dated March 11, 2020, Plaintiff was provided with Notice of the Appeals Council remand

and the setting of the hearing, and was informed that she needed to “inform us about or submit all evidence

known to you’, that “[y]our representative must help you inform us about or submit the evidence,” and that

can help you get evidence. If you need help, contact our office, your local Social Security office, or your

representative (if you appoint one) immediately.” (Tr. at 377-78.)

10

ALJ: [A]gain, as representative, you would’ve been responsible for making a

good faith effort to submit those . . . and exhaust all efforts before we would

request them.

REP: Yeah, well, when you’te requesting a medical record, you also need some

type of formal authority to get that done. ...

ALJ: [A]re you saying for me to request them, and then —

REP: Yeah, yeah, you to request them.

ALJ: [I] was expecting that they would come in from you, as the .. .

representative before the hearing and not just saying, I went to these providers.

You otder it for me, okay?

REP: Well... we called here to get further instructions, [but] we didn’t get it

... and we was told that we was real busy and that you would call back, and we

just got — we was connected to voicemails, saying we'll get back to you. Leave

a message; we'll get back. So no one came back so we was really stuck at what

do you do then? So we sent in what we could, and we sent the form in. We

sent that in, like I said, August 12, so that’s like last month. I mean, you know,

it’s plenty of time to call... and say, well, you really need to do that yourself. . .

but we didn’t get a letter.

ALJ: [B]ecause you were already listed as a representative, there would be —

the assumption was that you were familiar with the procedures.

REP: Yeah, I’m — well, we were familiar with the procedures, but it’s been like

seven yeats ... she’s been going ongoing, and procedures change.... And

that’s one of the procedures that is changed. The other .. . Judge, he ordered

the medical records. . ..

ALJ: Well, back in, what, 11 years ago or so, right?

REP: Yeah. Yeah. That’s why I said, everything changes. ... And until we

know that, then we don’t know... and so we have to wait and then ask them.

Like we said, we called on the phone and tried to get information but were

always put on hold and said that we’d be [] in contact with [you] later... and

we never got a call back.

ALJ: I-and I appreciate that, certainly.

11

(Tr. at 70-74.) Later in the hearing, the ALJ returned to the issue of medical records and their

submission:

ALJ: Well, let’s go back. Are there any records actually missing? I believe,

like the neuro — I believe we requested that.

REP: Yeah.

ALJ: Let’s see. So is there anything since — thete is really very little, 20, 30

pages, since April of 2014.

REP: Well, it’s more than that, Your Honor. I mean, it’s — like I said, it — you

will have to actually get the actual doctot’s records. Like you said, you’ve only

got summaries and all that stuff from the doctor that she — saying that she was

going to the doctor. Now, when we gave the Authorization to Disclose

Information to the Social Security Administration, that was for the

administration itself to pull all the records and giving her permission for them

to pull all the records, and they would’ve been able to pull every record from

2014 all the way to today.

ALJ: Well, I need to know from whom to request those records, so tell me

which providers --

REP: It would be —

CLMT: You could just say Novant Health and —

REP: Yeah, Novant Health.

CLMT: Novant Health as the most recent hospital that I have attended. I went

to Atrium and — up until 2020. Then, I went to Novant. So Novant has the

most —

REP: The recent, but then you also got Atrium, who also has her records, so

if it’s a fact of just giving the authorization and — with her permission to get that

pulled so that you will have an accurate record from doctors or experience

experts at that field.

ALJ: Okay. ... So anywhere else that is not reflected in the — any other

providers, other than those, since ’14?

12

[CLMT:] Yes, I went to the eye doctor and got — well, two eye doctors, and one

told me I had macular degeneration, and the, in June, I went to another one,

and they told me I had lattice degeneration and a cataract on my left eye, and —

[ALJ:| Okay. So who — where did you go, so I know who to request records

frome

[CLMT:] It’s one —it’s in Concord. I don’t have the name...

ALJ: Okay. Well, we’re — we can move on with that. You can let me know

after the hearing.

REP: Okay.

CLMT: Okay.

ALJ: [When we’re done with today’s hearing, Pll put the matter into what’s

called post hearing status. ... And then, because we have... the recent updated

authorization for us to request records on your behalf, . . . Pll request records

from Novant Health and Atritum.... [and] you can let us know... [i]f there’s

somewhere else that I should request records.

REP: Okay.

CLMT: Okay. Sute.

ALJ: Pll request those with Novant, Atrium. I need to know who the eye

doctors were —

CLMT: Okay.

ALJ: -- and North Carolina Neutropsych[ology].

REP: Okay.

(Tr. at 94-98.) The AL] repeated these her statements regarding the post-hearing status after

questioning the vocational expert, again indicating that she would request Plaintiffs medical

recotds and send copies to Plaintiff for review. (Tr. at 117, 121, 124.) The ALJ also te-

confirmed that Plaintiffs authorization form for the requests was up to date. (Tr. at 119.) Mr.

Scales asked for a fax number to send the names and addresses of any additional providers.

13

(Tr. at 118-20.) The ALJ did not have a fax number to hand, but told Mr. Scales that she was

“sure it’s one the Notice of hearing [or] some document” he had. (Tr. at 120.)

Plaintiff now argues that, despite the AL]’s assurances that she would request records

from all of the identified providers, the ALJ ultimately failed to do so. Accordingly, Plaintiff

contends that “[t]he ALJ’s decision must be set aside due to the insufficient development of

the record and the lack of updated medical evidence.” (PI.’s Br. at 4, 6.) Defendant counters

as follows:

As to Plaintiffs assertion that more recent records exist, she testified that she

received treatment from Novant Health and Attrtum Health, and underwent a

recent neuropsychology examination (T'r. 94-95, 97-98). These notes are in the

record (Tr. at 658-719). Thus, contrary to Plaintiffs contention, the ALJ had

sufficient evidence before her to make a decision as to whether Plaintiff was

disabled on April 1, 2014 and thereafter. She was not required to obtain

additional medical evidence given the record before her, and she was not

requited to further develop the record.

(Def.’s Br. [Doc. #14] at 16.)

However, the treatment notes cited by Defendant are an April 2022 new patient

evaluation from NC Neuropsychology (Tr. at 665-719), discussed further below, and a Patient

After-Visit Summary from Novant Health for a visit in August 2022, submitted by Mr. Scales

on Plaintiffs behalf prior to her 2022 hearing, as evidenced by the MyChart heading and the

time and date stamp in the top left corner of each page. (Tr. at 659-64.) No other records

from Novant Health are included. Likewise, no updated records from Atrium Health are

14

ptesent in the record at all. There is simply no indication or evidence that the AL] followed

through, as promised, to obtain the medical records and send a copy to Plaintiff to review.°

Moteover, the few records provided by Plaintiff clearly indicate that more extensive

records do, in fact, exist. For example, Plaintiffs treatment summary from her August 9, 2022

appointment at Novant shows three upcoming appointments in August and September of that

yeat. (Trt. at 661-62.) No further evidence of these appointments appears in the record.

Similarly, Plaintiff's patient summary from North Carolina Neuropsychiatry, dated April 29,

2022, reflect that Plaintiff was referred to that clinic by Dr. Robles with Novant Neurology.

(Tr. at 668.) Again, no documentation of Plaintiffs neurology appointment appears in the

record. In addition, an earlier letter by Plaintiff to SSA included a MyChart summary reflecting

a then-upcoming visit scheduled for February 4, 2019, and recent past visits including hospital

outpatient visits on December 17, 2018, and August 27, 2018, an office visit on November 12,

2018, telephone visits on November 8, 2018, November 29, 2018, December 21, 2018, and

January 4, 2019, and a ptocedure on December 31, 2018. (T't. at 374.) None of these records

wete obtained, but the ALJ then repeatedly relied on the finding that “the record indicates a

large gap in treatment with no treatment taking place from around 2011 to 2018” and that

“there is no medical evidence ftom 2011 to 2018.” (Tr. at 48, 50.)’ Plaintiff also submitted a

6 The record does reflect that the ALJ sent Plaintiff a letter identifying a single record, 15F, which was the

August 2022 Novant Health Visit. (Tr. at 45, 535.) However, Exhibit 15F was Plaintiffs MyChart summary

and was admitted at the hearing. (Tr. at 79, 659-64.)

7 The AL] specifically noted that Plaintiff was given a cardiac event monitor to weat in November 2018, related

to hypertension and palpitations, based on a single page of the record from Novant Health submitted by

Plaintiff. (Tr. at 50, 654.) However, the ALJ found that that “there is no indication she required ongoing

treatment for either [palpitations or hypertension] or consistently had ongoing residual symptoms related to

hypertension. There is no evidence she returned with complaints of palpitations,” (Tr. at 50), but as noted

above the ALJ did not obtain any of the treatment records for this time frame from Novant Health.

15

clinical summary from Carolina Digestive Health Associates dated November 12, 2018, which

indicates that she had a colonoscopy in 2017—a year in which the ALJ claimed Plaintiff had

no medical treatment—and a record which reflects that she had a hysterectomy during this

petiod. (Tr. at 656, 658.) Specifically, PlaintifPs records prior to 2011 include a radiology

teport reflecting uterine fibroids. (See, e.g., Tr. at 590.) A later MyChart summary notes a

“mass of the uterus” as of May 30, 2018 (Tr. at 12), and Plaintiff later reported that she had

an emergency hysterectomy in December 2018 (Tr. at 676). Notably, the only record regarding

the hysterectomy is a MyChart patient test report regarding a CT of Plaintiffs pelvis on

December 18, 2018, submitted by Plaintiff, which found no “post operative issue” and noted

that Plaintiffs uterus was “surgically absent.” (Tr. at 658.) This is consistent with Plaintiffs

reports of significant gynecological issues and the inclusion of “mass of uterus” and

menometrtotthagia on her medical problem list. (See Tr. at 12, 662, 669.) Again, none of the

medical records for these visits and hospitalizations are included in the record at all.

Further, with respect to Plaintiffs mental impairments, as noted above the prior 2011

decision found that Plaintiff had a Full-Scale IQ score of 72, with agoraphobia, social phobia,

adjustment disorder, and borderline intellectual functioning. (Tr. at 240.) At that time, the

results of a consultative psychological examination reflected that Plaintiff was precluded from

all work activity, and Plaintiffs husband was appointed as her representative to receive her

disability payments because she could not manage the payments in her own interest. At the

2023 hearing, there was no new consultative examination, although at the hearing Plaintiffs

husband repeatedly requested a new psychological consultative examination. (T'r. at 89-90.)

In addition, the state agency physicians provided no new opinions, noting only that there was

16

insufficient evidence to make an opinion. (Tr. at 622, 623, 624, 625, 639, 653.)® Plaintiff did

submit a new patient psychological evaluation from April 2022 that involved multiple days of

testing, with resulting diagnostic impressions reflecting “TBI with associated memory and

attentional deficits, PTSD, Post Concussional Syndrome, OCD, Agoraphobia, Borderline

Intellectual Functioning.” (Tr. at 673-74.) The ALJ nevertheless gave little weight to this

opinion, based on a lay evaluation of the testing, and the lack of mental health treatment. (It.

at 52-53.) Again, however, the ALJ did not actually obtain the treatment records to develop

the record, nor did the ALJ order any other updated consultative examination or medical

review.2 From the evidence in the record, it is not clear how Plaintiffs significant mental

impairments, including borderline intellectual functioning, improved to the point that she had

no impairments that significantly limited her ability to perform basic work activities, at least

requiting formulation of an RFC, and given the lack of development of the record there is

simply no evidence in the record to support that conclusion.

In short, because the ALJ failed to fulfill her duty to request medical records from the

two primary medical systems identified by Plaintiff, and failed to obtain any updated

consultative examination ot other medical review, the administrative record remains

incomplete and cannot provide substantial evidence supporting the AL]’s findings. As set out

8 In her brief, Plaintiff specifically contends that “[t]he ALJ erred by failing to seek updated medical opinions

from state agency medical and psychological consultants” and that “[t]he AL]’s decision must be set aside due

to the insufficient development of the record and the lack of updated medical evidence.” (Pl. Br. at 5-6.)

9 The ALJ also gave little weight to the 2011 consultative examination relied on by the prior 2011 ALJ decision,

but it is unclear how this analysis would be appropriate to a determination of improvement since that prior

determination. That is, it appears that the AL] undertook a te-weighing of all of the evidence, without any

other medical review, rather than an actual determination of whether Plaintiffs impairments had improved

since the prior determination. The Court need not consider that issue further given the other issues discussed

above requiting remand in any event.

17

above, the ALJ assured both Plaintiff and her husband multiple times that the ALJ’s office

would request all records from Atrium and Novant “directly.” (Tr. at 117, 121, 124.) There

is no evidence that the AL] followed through on this promise. The ALJ also denied Plaintiffs

request to obtain an updated consultative examination or other medical review. The ALJ

nevertheless relied repeatedly on a lack of medical evidence to conclude that Plaintiffs medical

condition had improved. These circumstances clearly requite remand.

IT IS THEREFORE ORDERED that the Commissionet’s decision finding no

disability IS REVERSED, and that the matter is REMANDED to the Commissioner under

sentence four of 42 U.S.C. § 405(g). ‘The Commissioner is directed to remand the matter to

the AL] for proceedings consistent with this Order. To this extent, Defendant’s Dispositive

Brief [Doc. #14] is DENIED, and Plaintiffs Dispositive Brief [Doc. #12] is GRANTED.

This, the 29t day of September, 2025.

Lt Sab

nited States Magistrate Judge

18

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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