United States District Court, M.D. Florida, Ocala Division
R. LAMMENS United States Magistrate Judge.
the Court is the Commissioner's Opposed Motion for Entry
of Judgment with Remand in which Defendant requests that the
Court remand this case so that the Commissioner can take
further administrative action. (Doc. 18).
August 2010, Plaintiff filed her initial application for
Disability Insurance Benefits (“DIB”), alleging a
disability onset date of November 1, 2009, which she later
amended to June 23, 2010. (Tr. 202-09, 248, 249). The Social
Security Administration (“SSA”) denied her
application initially and upon reconsideration. (Tr. 116-18,
121-22). Following a hearing, an administrative law judge
issued an unfavorable decision in August 2012. (Tr. 65-84,
85-113). Then, the Appeals Council denied Plaintiff's
request for review. (Tr. 1-5, 774-78).
August 2015, I reversed and remanded this case back to the
Commissioner as the administrative law judge failed to state
the weight accorded to the opinion of Alex C. Perdomo, M.D.,
a consultative physician. (Tr. 750-52). Particularly, I noted
that the administrative law judge had erred in the following
At issue here is Dr. Perdomo's opinion that Plaintiff
could only stand, walk, and sit for a combined total of six
hours in an eight-hour workday. This is significant because
it is inconsistent with the ALJ's RFC finding that
Plaintiff was capable of work eight-hours a day, six hours of
sitting and two-hours of standing/walking. While the ALJ
discussed Dr. Perdomo's findings, and this opinion in
particular, she failed to state what weight, if any, she was
(Tr. 750) (citation omitted). After that remand, Plaintiff
filed an additional application for benefits, her
applications were then consolidated, and the Appeals Council
remanded the case back to the administrative law judge to
issue a new decision on the consolidated claims. (Tr. 745).
another hearing, Administrative Law Judge Michael Calabro
(the “ALJ”) considered the consolidated claims
and issued a partially favorable decision in March 2016. (Tr.
666-704, 705-42). Specifically, the ALJ found that Plaintiff
became disabled on May 30, 2012 but was not disabled prior to
that date. (Tr. 693).
the ALJ's decision became final, Plaintiff appealed to
this Court. (Doc. 1). On appeal, Plaintiff challenges only
the decision that she was not disabled prior to May 30, 2012.
(Doc. 15, p. 1). In part, Plaintiff alleges that the ALJ
erred, like the previous administrative law judge did, by
failing to apply the correct legal standards to Dr.
Perdomo's opinion. (Pl.'s Br. at 12-16).
Commissioner, in lieu of filing a memorandum in support of
the ALJ's decision, has instead moved to remand the case
for further proceedings. (Doc. 18). Particularly, the
Commissioner requests remand in order for the ALJ to
“reevaluate Dr. Alex Perdomo's opinion, and, if
necessary, obtain supplemental evidence from a vocational
expert.” (Doc. 18). Plaintiff has responded to this
motion (Doc. 19), agrees that the case should be remanded,
but asserts that the Commissioner should only award benefits
upon remand. The Commissioner has filed a sur-reply. (Doc.
22). Lastly, I note that the parties have consented to me.
to Title 42, United States Code, Section 405(g) the Court is
empowered to reverse the decision of the Commissioner with or
without remanding the cause for a rehearing. Shalala v.
Schaefer, 509 U.S. 292, 297 (1993). The failure of the
ALJ to develop the record constitutes sufficient grounds for
remand. Brissette v. Heckler, 730 F.2d 548, 550 (8th
Cir. 1984). Where the district court cannot discern the basis
for the Commissioner's decision, a sentence-four remand
may be appropriate to allow her to explain the basis for her
decision. See Falcon v. Heckler, 732 F.2d 827,
829-30 (11th Cir. 1984). On remand under sentence four, the
ALJ should review the case on a complete record, including
any new material evidence. Reeves v. Heckler, 734
F.2d 519, 522 n. 1 (11th Cir. 1984) (holding that the ALJ
should consider on remand the need for an orthopedic
evaluation); Diorio v. Heckler, 721 F.2d 726, 729
(11th Cir. 1983) (finding that it was necessary for the ALJ
on remand to consider a psychiatric report tendered to
Court may reverse the decision of the Commissioner and order
an award of disability benefits when the Commissioner has
already considered the essential evidence and it is clear
that the cumulative effect of the evidence establishes
disability without any doubt. Davis v. Shalala, 985
F.2d 528, 534 (11th Cir. 1993); accord Bowen v.
Heckler, 748 F.2d 629, 631, 636-37 (11th Cir. 1984). A
claimant may also be entitled to an immediate award of
benefits when the claimant has suffered an injustice,
Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir.
1982), or when the ALJ has erred and the record lacks
substantial evidence supporting the conclusion of no
disability, Spencer v. Heckler, 765 F.2d 1090, 1094
(11th Cir. 1985).