Leslie Sun v. Carolyn Colvin, Acting Cmsnr

793 F.3d 502, 2015 U.S. App. LEXIS 12376, 2015 WL 4393795
CourtCourt of Appeals for the Fifth Circuit
DecidedJuly 17, 2015
Docket14-31058
StatusPublished
Cited by69 cases

This text of 793 F.3d 502 (Leslie Sun v. Carolyn Colvin, Acting Cmsnr) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leslie Sun v. Carolyn Colvin, Acting Cmsnr, 793 F.3d 502, 2015 U.S. App. LEXIS 12376, 2015 WL 4393795 (5th Cir. 2015).

Opinion

*504 STEPHEN A. fflGGINSON, 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 assis-tive 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 *505 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 postopera-tively.... [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 “[hjardware 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 nonweightbear-ing 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[ ] non-weightbearing 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 eviden-tiary 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 *506 the boot on her foot for six to eight weeks and that she stopped using crutches “[pjrobably in May” of 2012.

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Bluebook (online)
793 F.3d 502, 2015 U.S. App. LEXIS 12376, 2015 WL 4393795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leslie-sun-v-carolyn-colvin-acting-cmsnr-ca5-2015.