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Cuthbertson v. Commissioner of Social Security

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

March 29, 2017

DIANE LOWE CUTHBERTSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          CARLOS E. MENDOZA, UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on the Complaint (Doc. 1) filed by Plaintiff Dianne Cuthbertson pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), which seeks judicial review of the Commission of the Social Security Administration's (“Commissioner”) decision denying Plaintiff's applications for disability insurance benefits (“DIB”) and supplemental Social Security Income (“SSI”) payments. This cause is also before the Court on Defendant's Motion to Remand (Doc. 18). On January 4, 2017, Magistrate Judge James R. Klindt issued a Report and Recommendation (“R&R, ” Doc. 23), in which he recommends, inter alia, that Commissioner's final decision be reversed and remanded for further proceedings. The Commissioner filed Defendant's Objections to the United States Magistrate Judge's Report and Recommendation (Doc. 24), to which Plaintiff filed a Response to the Defendant's Objection to the Magistrate Judge's Report and Recommendation (Doc. 25). After an independent de novo review of the record, the R&R will be adopted in part and rejected in part.

         I. Background [[1]]

         On May 20, 2010, Plaintiff filed applications for DIB and SSI, claiming that she became disabled on May 16, 2008. (R. 199-209). Initially and upon reconsideration, the Social Security Administration denied both applications. (R. 81-92, 97-102). In April 2011, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Id. at 107). Her case was assigned to ALJ Aaron M. Morgan, and the hearing was held on August 25, 2011. (Id. at 50). Plaintiff, who was represented by counsel, appeared and testified at the hearing. (Id. at 50-79). The vocational expert who was scheduled to testify at the hearing could not appear due to illness, (id. at 56), therefore, Plaintiff requested a supplemental hearing, (id. at 164).

         On October 27, 2011, ALJ Morgan held a supplemental hearing, at which Plaintiff and the vocational expert testified. (Id. at 31-48). A month later, ALJ Morgan issued a decision finding that Plaintiff was not disabled. (Id. at 14-24). Plaintiff sought review of ALJ Morgan's decision with the Appeals Council, but her request was denied. (Id. at 659-61). She then appealed to the United States District Court for the Middle District of Florida. See Cuthbertson v. Comm'r of Soc. Sec., No. 6:13-cv-37-Orl-36KRS (M.D. Fla. Jan. 7, 2013). Upon consideration of Plaintiff's appeal, District Court Judge Charlene Edwards Honeywell entered an Order reversing the Commissioner's decision and remanding Plaintiff's case for further administrative proceedings. See id. at Doc. 17 (adopting the report and recommendation of the Magistrate Judge Karla R. Spaulding).

         On remand, Plaintiff's case was rotationally assigned to ALJ John D. Thompson, Jr. because ALJ Morgan was no longer assigned to the office handling Plaintiff's disability claims. (R. at 584). A hearing was held on August 3, 2015. (Id. at 581). During this hearing, ALJ Thompson heard testimony from Plaintiff, two medical experts, and a vocational expert. (Id. at 581-638). On October 8, 2015, ALJ Thompson issued a decision finding that Plaintiff was not disabled. (Id. at 558-570). Plaintiff was fifty-five on the date of ALJ Thompson's decision.

         On December 8, 2015, Plaintiff appealed to this Court, arguing that ALJ Thompson erred by: (1) failing to apply the correct legal standards to the opinion of one of Plaintiff's medical experts; (2) failing to properly address and weigh the statements of Plaintiff's third-party witnesses; and (3) failing to apply the correct legal standards to Plaintiff's testimony. (Pl.'s Brief, Doc. 17, at 2-23). Plaintiff argues that the Court should reverse the matter for an award of benefits, rather than further proceedings for two reasons: (1) the Commissioner has already considered essential evidence, the cumulative effect of which establishes Plaintiff's disability without any doubt, and (2) Plaintiff has suffered an injustice because she filed her application for benefits several years ago, and has yet to receive a final decision that is legally sufficient. (Id. at 23-24).

         Plaintiff alternatively asks that that if the Court remands her case for further proceedings that the Commissioner be ordered to assign a different ALJ for an unbiased reconsideration of her disability claim. (Id. at 24 n.2). Plaintiff contends that ALJ Thompson cannot fairly consider her application for benefits because he made multiple statements urging Plaintiff to amend her onset disability date to her fifty-fifth birthday and suggested that he would only award benefits as of that date. (Id.). In support of her argument, Plaintiff relies primarily on Martin v. Barnhart, 319 F.Supp.2d 1381, 1384 (S.D. Ga. 2004), where the court found that an ALJ created an appearance of impropriety by implying that he would grant an award of benefits to the claimant if she amended her onset date of disability.

         Commissioner argues that an award of benefits is inappropriate because Plaintiff has failed to demonstrate that the evidence in her case establishes disability without any doubt or that she has suffered an injustice. (Doc. 18 at 2). Conceding error, however, the Commissioner moves the Court to remand Plaintiff's case further administrative proceedings. (Id. at 1). On remand, the Commissioner asserts that the ALJ should be instructed to:

evaluate whether Plaintiff's impairments meet or equal a listing, including Listing 1.02; evaluate and weigh the medical opinions of record, including the medical expert's opinion, and explain the rationale for the weight given; consider all of the lay opinion evidence; and determine whether claimant can perform work that exists in significant numbers in the national economy, obtaining VE testimony if necessary.

(Id.). The Commissioner did not respond to Plaintiff's request for the reassignment of her case to a different ALJ.

         Upon review of the record, the Magistrate Judge found no “evidence establish[ing] [Plaintiff's] disability without any doubt.” (Doc. 23 at 11). He also found no injustice warranting an award of benefits. (Id. at 13). Accordingly, the Magistrate Judge recommends that the Court reverse and remand Plaintiff's case for further proceedings. In light of the Commissioner's failure to respond to Plaintiff's request for reassignment and the decision in Martin, the Magistrate Judge also recommends that that the Court direct the Commissioner to reassign Plaintiff's case to a different ALJ. Alternatively the Magistrate Judge recommends that the Court strongly urge the Commissioner to assign a different ALJ. (Doc. 23 at 13 n.8).

         The Commission objects to the Magistrate Judge's recommendation regarding the reassignment of Plaintiff's case.[2] (See generally Doc. 24).

         II. ...


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