[Jose A.] v. Comm’r of Soc. Sec., No. 6:21-CV-1909-EJK, 2023 WL 2136429 (M.D. Fla. Feb. 21, 2023)

[Jose A.] v. Comm’r of Soc. Sec., No. 6:21-CV-1909-EJK, 2023 WL 2136429 (M.D. Fla. Feb. 21, 2023)

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[Jose A.] v. Comm’r of Soc. Sec., No. 6:21-CV-1909-EJK, 2023 WL 2136429 (M.D. Fla. Feb. 21, 2023) (Decision by U.S. Magistrate Judge Embry J. Kidd, by consent)

Briefs for purchase:

  • Plaintiff’s Memorandum

  • Plaintiff’s Reply Memorandum 

Topics addressed:

  • Failure to translate records to English

  • Specific impairment - hearing impairment

  • RFC - relationship with PRTF findings

  • RFC - treatment regimen

  • Harmless error

Rulings addressed: none

Issues briefed:

1) Whether remand is required as the ALJ failed to translate all documents in the record from Spanish to English.

2) Whether the ALJ failed to properly address the severity of Plaintiff’s hearing impairment.

3) Whether the ALJ’s RFC assessment is supported by substantial evidence.

4) Whether the ALJ properly evaluated the severity of Plaintiff’s subjective complaints.

Court decision:

The court addressed the issue of whether remand is required as the record included evidence in Spanish that was not translated into English. 2023 WL 2136429 at *1. In addressing this issue, the court relied on Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th Cir. 1997), in which the Eleventh Circuit held that the ALJ has a fundamental duty “to develop a full and fair record” and that “where the record reveals evidentiary gaps which result in unfairness or clear prejudice” this violates the claimant’s right to due process, warranting remand for further development of the record. Id. at *2.

Plaintiff asserted that he was prejudiced because his earlier function report and pain questionnaire, both from the relevant period, were not translated from Spanish to English and thus the ALJ was unable to compare them with later reports, which were in English, on which the ALJ had relied extensively in her decision. Id. Further, that certain psychiatric records from the relevant period also were not translated for review by the ALJ, to claimant’s prejudice, because they were highly relevant to the ALJ’s RFC finding that claimant could “apply commonsense understanding to carry out detailed, but uninvolved written or oral instruction,” despite the ALJ’s finding that claimant had a severe impairment of “depressive disorder.” Id.

The court agreed with Plaintiff’s arguments, concluding that, because records from the relevant time period that related to his subjective complaints and identified severe impairments were not translated, there were evidentiary gaps that resulted in prejudice, and the action should be remanded to the Commissioner for further development of the record. Id. at *3. The court followed Rivera v. Commissioner of Social Security, No. 21-CV-1498 (KHP), 2022 WL 3210441, at *9 (S.D.N.Y. Aug. 9, 2022), finding that despite the record in this case including a Function Report dated subsequent to the untranslated one as well as other mental health records in English, it was important that the ALJ be able to analyze “the severity and prevalence of . . . [Plaintiff’s] symptoms over the course of the full period at issue.” Id.

Since the court found reversal warranted based on the failure to fully translate relevant records, the court found it need not consider claimant’s remaining arguments at this time. Id.