Cousins v. Commissioner of Social Security
Filing
27
OPINION AND ORDER accepting and adopting 26 Report and Recommendations, with the excepted noted in the Opinion and Order. The Decision of the Commissioner of Social Security is reversed and the matter is remanded to the Commissioner of Social Sec urity pursuant to sentence four of 42 U.S.C. § 405(g) so that the Commissioner can develop the record as to whether plaintiff's residual functional capacity precludes performing jobs with reasoning levels of two and three as listed in the DOT. The Clerk of the Court shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 9/18/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JULIE COUSINS,
Plaintiff,
vs.
Case No.
2:12-cv-505-FtM-29DNF
CAROLYN
W.
COLVIN,
Acting
Commissioner of Social Security,
Defendant.
___________________________________
OPINION AND ORDER
This
matter
is
before
the
Court
on
consideration
of
Magistrate Judge Douglas N. Frazier’s Report and Recommendation
(Doc. #26),
filed
on
August
23, 2013,
recommending
that the
Commissioner’s decision to deny social security disability benefits
be reversed and remanded with instructions to the Commissioner. 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)(citing Lewis v. Callahan, 125 F.3d 1436, 1439
(11th Cir. 1997)).
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)(citing
Crawford, 363 F.3d at 1158-59). 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 (citing Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990)).
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
(citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.
1983));
Dyer
v.
Barnhart,
395
F.3d
1206,
1210
(11th
Cir.
2005)(citing Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th
Cir. 2004)).
The Court reviews the Commissioner’s conclusions of
law under a de novo standard of review.
Ingram v. Comm’r of Soc.
Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)(citing Martin,
894 F.2d at 1529).
The Report and Recommendation finds that the Administrative
Law Judge (ALJ) erred in failing to develop the record as to
whether
plaintiff’s
residual
functional
capacity
precludes
performing jobs with reasoning levels of two and three as listed in
the Dictionary of Occupational Titles (DOT). (Doc. #26.) After an
independent de novo review, the Court agrees with this finding and
recommendation. With one exception, the Court also agrees with the
findings and proposed disposition of the other issues raised by
plaintiff.
The exception is that the Court does not agree with the
sentence: “At step two, the ALJ is not required to identify all of
the impairments that should be considered severe.”
-2-
(Doc. #26, p.
22.)
The Court is not persuaded by the unpublished Eleventh
Circuit case cited in the Report and Recommendation.1
The ALJ is
required to identify all severe impairments at step two, although
the failure to do so may be harmless error.
Accordingly, it is now
ORDERED:
1.
The Report and Recommendation (Doc. #26) is accepted and
adopted by the Court, with the exception noted above.
2.
The Decision of the Commissioner of Social Security is
reversed and the matter is remanded to the Commissioner of Social
Security pursuant to sentence four of 42 U.S.C. § 405(g) so that
the Commissioner can develop the record as to whether plaintiff’s
residual
functional
capacity
precludes
performing
jobs
with
reasoning levels of two and three as listed in the DOT.
3.
The Clerk of the Court shall enter judgment accordingly
and close the file.
DONE AND ORDERED at Fort Myers, Florida, this
18th
day of
September, 2013.
Copies:
Hon. Douglas N. Frazier
U.S. Magistrate Judge
Counsel of Record
1
Heatly v. Comm’r of Soc. Sec., 382 F. App’x 823 (11th Cir.
2010).
-3-
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