Shird v. Astrue

• Decision Date: 10 June 2009
• Docket Number: Case No. 2:08-cv-472-FtM-29SPC.
• Citation: 635 F.Supp.2d 1319
• Parties: Peter L. SHIRD, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Florida

635 F.Supp.2d 1319

Peter L. SHIRD, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Case No. 2:08-cv-472-FtM-29SPC.

United States District Court, M.D. Florida, Fort Myers Division.

June 10, 2009.

COPYRIGHT MATERIAL OMITTED

Jonas H. Kushner, Kushner & Kushner, Ft. Myers, FL, for Plaintiff.

Susan R. Waldron, US Attorney's Office-FLM, Tampa, FL, for Defendant.

OPINION AND ORDER

JOHN E. STEELE, District Judge.

This matter is before the Court on consideration of Magistrate Judge Sheri Polster Chappell's Report and Recommendation (Doc. #20), filed on May 26, 2009, recommending that the Commissioner's decision to deny social security disability benefits be remanded with instructions to the Commissioner to further consider an issue. No objections have been filed, and the time to do so has expired.

The Court reviews the Commissioner's decision to determine if it is supported by substantial evidence and based upon proper legal standards. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.2004). Substantial evidence is more than a scintilla but less than a preponderance, and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005); Crawford, 363 F.3d at 1158. Even if the evidence preponderates against the Commissioner's findings, the Court must affirm if the decision reached is supported by substantial evidence. Crawford, 363 F.3d at 1158-59. The Court does not decide facts anew, make credibility judgments reweigh the evidence, or substitute its judgment for that of the Commissioner. Moore, 405 F.3d at 1211; Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.2005). The magistrate judge, district judge and appellate judges all apply the same legal standards to the review of the Commissioner's decision. Dyer, 395 F.3d at 1210; Shinn v. Comm'r of Soc. Sec., 391 F.3d 1276, 1282 (11th Cir.2004); Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir.2004).

The Administrative Law Judge (ALJ) found that plaintiff was disabled beginning March 12, 2007. No one disputes this finding. The ALJ also found that plaintiff was not disabled from September 15, 2004, his claimed onset date, to March 11, 2007. Plaintiff challenges that portion of the ALJ's Decision.

The Court agrees with the Report and Recommendation's findings and conclusion that the ALJ properly weighed the medical opinions in the record. The Court also agrees, on the record developed so far, that the ALJ's finding concerning plaintiff's residual functional capacity is supported by substantial evidence and that use of the Grids was proper.

The Court further agrees that the case must be remanded to the Commissioner to continue/re-open the hearing before the ALJ. The initial hearing was terminated because of upon an equipment malfunction while plaintiff's counsel was examining plaintiff. Plaintiff had not finished his testimony, and the ALJ stated that he would reconvene the hearing at another time to allow counsel to finish his questioning. The equipment was not fixed and the hearing was terminated, but the hearing was not reconvened by the ALJ. Instead, a report from Dr. Rabinowitz was obtained and relied upon by the ALJ in his Decision. Thus, whether viewed as re-opening the hearing after obtaining the report of another physician or as completing the truncated hearing, a remand is required.

On remand, plaintiff shall have the opportunity to cross examine Dr. Rabinowitz as to his new report, as set forth in the Report and Recommendation. Additionally, since the testimony of plaintiff was never completed, on remand plaintiff shall be allowed to complete his testimony. Further, after considering the additional testimony and evidence, the ALJ may need to reconsider plaintiff's residual functional capacity and the use of the Grids. Dr. Rabinowitz found plaintiff's use of a cane was medically necessary, and if the evidence establishes the need for a cane prior to March 12, 2007, the ALJ cannot use the Grids to deny benefits as to this time period. Walker v. Bowen, 826 F.2d 996 (11th Cir.1987).

Accordingly, it is now

ORDERED:

1. The Report and Recommendation (Doc. # 20) is accepted and adopted by the Court.

2. The Decision of the Commissioner of Social Security is remanded to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) so that the Commissioner can re-open/continue the hearing; allow plaintiff the opportunity to cross examine Dr. Rabinowitz; allow plaintiff to continue his presentation of testimony and evidence; re-consider plaintiff's residual functional capacity and the use of the Grids, if necessary; and take such further steps as are necessary to properly resolve the claim.

3. The Clerk of the Court shall enter judgment accordingly and close the file.

REPORT AND RECOMMENDATION¹

SHERI POLSTER CHAPPELL, United States Magistrate Judge.

TO THE DISTRICT COURT

This matter comes before the Court on the Plaintiff, Peter L. Shird's, Complaint Seeking Review of the Final Decision of the Commissioner of Social Security (Commissioner) denying the Plaintiff's Claim for Disability Insurance (Doc. # 1) filed on June 10, 2008. The Plaintiff filed his Memorandum of Law in Support of the Complaint (Doc. # 16) on December 12, 2008. The Commissioner filed a Memorandum of Law in Support of the Commissioner's Decision (Doc. # 19) on February 11, 2009. Thus, the Motion is now ripe for review.

The Undersigned has reviewed the record, including a transcript of the proceedings before the Administrative Law Judge (ALJ), the exhibits filed and administrative record, and the pleadings and memoranda submitted by the parties in this case.

FACTS

Procedural History

On October 20, 2004, the Plaintiff filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income, alleging an onset disability date of September 15, 2004. (Tr. 12). The Plaintiff's claims were denied initially on March 28, 2005, and upon reconsideration on June 28, 2005. (Tr. 12). The Plaintiff timely filed a request for hearing on July 22, 2005. (Tr. 12, 34). A hearing was held on September 6, 2007 before the Honorable Drew A. Swank, Administrative Law Judge, via video conference. (Tr. 12, 366-396). The Plaintiff was represented by Jeffrey Kushner, Esq. (Tr. 12, 370). The ALJ ordered a comprehensive examination after the hearing, and the report was made part of the record (Exhibit 12F). (Tr. 12). The ALJ proffered a copy of that report and Mr. Kushner filed a response, requesting a supplemental hearing. (Tr. 105-106). No supplemental hearing was held because the ALJ issued a partially favorable decision on December 26, 2007, finding the Plaintiff disabled from March 12, 2007, up to the date the ALJ last found Substantial Gainful Activity (SGA). (Tr. 14, 18-19). The Plaintiff filed a Request for Review of the Hearing Decision with the Appeals Council on July 22, 2007. (Tr. 12, 360-365). The Appeals Council denied the Plaintiff's request for review. (Tr. 4-7). Therefore, the decision of the Commissioner became final. Having exhausted all administrative remedies, the Plaintiff timely filed a Complaint with this Court.

Plaintiff's History

The Plaintiff was born on March 13, 1957, making him fifty (50) years of age at the time of the hearing. (Tr. 53). The Plaintiff's disability insured status expired on December 31, 2009. (Tr. 12). The Plaintiff has a seventh (7th) grade education and has difficulty reading, writing, and performing simple mathematics. (Tr. 375). The Plaintiff's past relevant work is that of a heavy equipment operator, primarily driving a tractor, mower, conveyor banks or other heavy equipment. (Tr. 378). The Plaintiff's job also involved heavy lifting, including lead pipes weighing approximately 40 or 50 pounds. (Tr. 378). The Plaintiff alleges an onset disability date of September 15, 2004.

Medical History

The medical evidence in this case is quite expansive as it covers the period from the year 2000 through Dr. Rabinowitz' post hearing examination of November 2007. During this time period, Plaintiff has been seen by Drs. Toro, Sateen, C. Martinez, R. Martinez, Benitez, Meraney, as well as having been hospitalized at Lehigh Regional Medical Center, seen at the Lee Memorial Emergency Room, a participant in physical therapy and a regular patient of the wound clinic run by Dr. Benitez (Tr. 107-359).

The Plaintiff's medical records begin in October 25, 2000, when the Plaintiff was seen at the East Pointe Hospital in Lehigh Acres, Florida by Dr. Robert Martinez. (Tr. 116). These records indicate that Plaintiff was a recently diagnosed diabetic and that he had developed a blister and ulceration on of the plantar portion of his left foot due to tight fitting shoes. (Tr. 116). During this visit, the ulcerated area was debrided and underneath the blister, some superficial necrosis was seen. (Tr. 116). The Plaintiff's foot x-ray revealed no abnormality of the bone. (Tr. 116). The Plaintiff had good pulses but peripheral neuropathy was noted. (Tr. 116). Treatment included debridement of the ulcer, whirlpool treatments and an MRI was recommended to rule out any possibility of osteomyelitis. (Tr. 116).

On November 7, 2000, the Plaintiff presented to Dr. Martinez for follow-up. (Tr. 304). The wound was healing well. (Tr. 304). A bedside debridement was performed. (Tr. 304). The Plaintiff began taking diabetic medications at home. (Tr. 304). The Plaintiff was instructed to discontinue crutches, switch to an extra wide shoe, and begin to place weight on the foot. The Plaintiff was told to return in two (2) weeks for repeat evaluation and possible release back to work. (Tr. 304).

On November 20, 2000, the Plaintiff returned to Dr. Martinez for re-evaluation. Dr. Martinez found that Plaintiff's foot ulcer had improved sufficiently to allow him to return...