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Holmes v. Commissioner of Social Security

United States District Court, M.D. Florida, Ocala Division

February 3, 2017

LYNVONNE EKIE HOLMES, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY Defendant.

          ORDER

          PHILIP R. LAMMENS United States Magistrate Judge.

         Before 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).

         I. Background

         In 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).

         In 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 way:

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 according it.

(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).

         After 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).

         After 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).

         The 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. (Doc. 13).

         II. Legal Standard

         Pursuant 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 Appeals Council).

         This 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).

         III. ...


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