Leitman v. Commissioner of Social Security

Filing 28

ORDER accepting and adopting 27 Report and Recommendation. The Decision of the Commissioner of Social Security is reversed and remanded with the instructions set forth in the Order. The Clerk of the Court shall enter judgment accordingly and close the file. See Order for details. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BROOKE ANN LEITMAN,
Plaintiff,
v.

Case No:

COMMISSIONER
SECURITY,

OF

2:17-cv-466-FtM-29JBT

SOCIAL

Defendant.
OPINION AND ORDER
This

matter

is

before

the

Court

on

consideration

of

Magistrate Judge Joel B. Toomey’s Report and Recommendation (Doc.
#27), filed on May 1, 2018, recommending that the Decision of the
Commissioner be affirmed.

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

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

Martin

v.

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).
After

an

independent

review,

the

Court

agrees

with

the

findings and recommendations in the Report and Recommendation.
Should remand result in the award of benefits, any petition for
attorney fees shall be filed within thirty (30) days from the date
of the Commissioner’s letter sent to plaintiff’s counsel of record
at the conclusion of the Agency’s past due benefit calculation
stating the amount withheld for attorney’s fees.
Accordingly, it is now
ORDERED:
1.

The Report and Recommendation (Doc. #27) is accepted and

adopted by the Court.
2.

The Decision of the Commissioner of Social Security is

reversed and remanded with instructions to the Commissioner to:

- 2 -

a. clarify

the

finding

regarding

episodes

of

decompensation and that relates to Listing 12.04;
b. further explain the reasons for giving the opinions
of Dr. Brenda Keefer limited weight, or reconsider
the weight given to those opinions;
c. address the opinion of Dr. Paula Bowman regarding
plaintiff’s ability to function on a daily basis;
d. clarify the RFC assessment;
e. explain any significant variance between the RFC
assessment and the opinions of Dr. Bowman and the
State agency doctors, or reconsider those opinions;
f. reconsider plaintiff’s RFC if appropriate; and
g. conduct any further proceeds deemed appropriate.
3.

The Clerk of the Court shall enter judgment accordingly

and close the file.
DONE and ORDERED at Fort Myers, Florida, this __21st__ day of
May, 2018.

Copies:
Hon. Joel B. Toomey
U.S. Magistrate Judge
Counsel of Record

- 3 -