United States District Court, M.D. Florida, Orlando Division
E. MENDOZA, UNITED STATES DISTRICT JUDGE
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.
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).
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).
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.
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).
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
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
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).
Commission objects to the Magistrate Judge's
recommendation regarding the reassignment of Plaintiff's
case. (See generally Doc. 24).