Hart v. Commissioner of Social Security
Filing
22
FINAL OPINION AND ORDER re: 1 Complaint. The Commissioner's decision is reversed and remanded pursuant to sentence four as set forth herein. The Clerk is directed to enter judgment consistent with this ruling and close the file. Signed by Magistrate Judge Thomas E. Morris on 9/19/2011. (DLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TARA HART,
Plaintiff,
vs.
CASE NO. 3:10-cv-531-J-TEM
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
ORDER AND OPINION
This matter is before the Court on Plaintiff’s Complaint (Doc. #1) seeking review of
the final decision of the Commissioner of the Social Security Administration (“the
Commissioner”) denying her claims for disability insurance benefits (“DIB”) and
supplemental security income disability payments (“SSI”). Plaintiff filed a brief in opposition
to the Commissioner’s decision (Doc. #19). Defendant filed a brief in support of the
Commissioner’s decision to deny disability benefits (Doc. #20). The Commissioner has
filed the Transcript of the underlying administrative proceedings and record evidence
(hereinafter referred to as “Tr.” followed by the appropriate page number).
The undersigned has reviewed and given due consideration to the record in its
entirety, including the parties’ arguments presented in their briefs and the materials
provided in the transcript of the underlying proceedings. Upon review of the record, the
Court found the issues raised by Plaintiff were fully briefed and concluded oral argument
would not benefit the Court in its making its determinations. Accordingly, the matter has
been decided on the written record. For the reasons set out herein, the Commissioner’s
decision is REVERSED AND REMANDED.
I. PROCEDURAL HISTORY
On April 25, 2007, Plaintiff filed an application for DIB and for SSI (Tr. 131-33).
Plaintiff alleges her disability began on August 25, 2006 (Tr. 131). At the hearing, the date
of disability onset was amended to February 1, 2008 (Tr. 24-25). Plaintiff claims to be
disabled as a result of osteoarthritis in her right knee and back, diabetes, asthma, and
hypertension (Tr. 165-69, Adult Disability Report; Tr. 24-25).
Both of Plaintiff’s claims were denied on July 20, 2007 (Tr. 79-84).
Plaintiff
requested reconsideration and was denied again on November 28, 2007 (Tr. 89-93).
Plaintiff filed a request for a hearing in front of an administrative law judge (“ALJ”), which
was held on February 26, 2009 before ALJ Stephen Calvarese (Tr. 94-95, 21). Plaintiff
Tara Hart and an impartial vocational expert (“VE”), Melissa Brooks, appeared and testified
at the hearing (Tr. 21-63). The ALJ found Hart was not disabled by his decision dated
August 2, 2009 (Tr. 7-20). Plaintiff requested a review of the hearing, which was denied
by the Appeals Council on April 30, 2010, making the hearing decision the final decision
of the Commissioner and subject to review under 42 U.S.C. § 405(g) (Tr. 1-6). Plaintiff’s
current counsel of record, Ms. Chantal J. Harrington, Esq., filed the instant action in federal
court (Doc. #1).
II. BACKGROUND
Plaintiff was born on March 26, 1973 and was thirty-five at the time of the hearing
before the ALJ (Tr. 31).
Plaintiff’s past relevant work includes cashier, data entry,
childcare, highlighter, opener/boarder, phone operator, proof operator, picker, and repair
warehouse associate (Tr. 167).
In the course of her treatment, Plaintiff has seen several physicians. Plaintiff’s
2
treating physicians are those doctors at Family Care Partners-Northside, including: Dr.
Allen Okie, Dr. Kendra Williams, Dr. Tra’Chella Johnson-Foy, Dr. Michelle AquinoCaballero, and Dr. Elena Noble. Additional treating physicians of the Plaintiff are Dr.
Stephen Augustine of Jacksonville Orthopaedic Institute, Dr. Donald Chipman of Riverside
Spine, and Dr. Thomas Fix of Signet Diagnostic Imaging. Plaintiff’s examining physicians
include: Dr. William Campbell and Dr. Richard Grimsley of Jacksonville Orthopedic
Institute; Dr. James Nealis of Nealis Neurology,1 Dr. Sean Kuyper of Northside Imaging
Center, and Dr. F. Hakims of Memorial Hospital.
Two state agency psychologists
conducted records reviews and completed Psychiatric Review Technique forms concerning
Plaintiff’s claim to mental impairments (Tr. 240-53, 347-60). Residual functional capacity
reports (“RFC”) on Plaintiff’s physical capacities were prepared by a reviewing physician
and a single decision maker (“SDM”) (Tr. 262-69 and 361-86).2
Plaintiff’s chief complaint is the pain in her right knee, which reportedly began on
April 26, 2006 (Tr. 325). A x-ray completed on May 17, 2006, showed mild to moderate
arthritis in Plaintiff’s right knee (Tr. 322). A MRI of the knee completed on September 6,
2006 found severe osteoarthritis, bone cyst, and macerated menisci (Tr. 343). A second
1
Plaintiff saw Dr. Nealis for issues of possible carpal tunnel syndrome (Tr. 535-36). Nealis
commented Plaintiff had a “bizarre way of walking” and a “non-physiological type of gait,”
further calling it a “goose step.” He concluded her nerve tests were normal. Id.
2
A SDM is not a medical doctor. The Court notes that a SDM is not entitled to any weight.
See Bolton v. Astrue, No. 3:07-cv-612-J-HTS, 2008 WL 2038513, at *3 (M.D.Fla. May 12,
2008) (citing Velasquez v. Astrue, Civil Action No. 06-cv-02538-REB, 2008 WL 791950, at
*3 (D.Colo. Mar.20, 2008)); see also Johnson v. Barnhart, No. 03-166-B-W, 2004 WL
1529296, at *4 (D.Me. June 24, 2004) (report and recommendation of magistrate judge
adopted by Johnson v. Barnhart, 2004 WL 1572705 (July 13, 2004) (finding opinion of SDM
is like that of a lay person and is not entitled to any weight)).
3
MRI of Plaintiff’s right knee on December 6, 2007 showed severe arthritis of the knee, most
marked in the medial compartment with meniscal tearing that may have progressed since
the first MRI (Tr. 408).
On February 21, 2008, Dr. Augustine performed arthroscopic surgery on Plaintiff’s
right knee (Tr. 496-509). At Plaintiff’s one week and one month post surgery visits with Dr.
Augustine, Plaintiff was instructed to remain non-weight bearing on her right knee (Tr. 45960).3 Two months post surgery, Dr. Augustine indicated Plaintiff could be “weight bearing
as tolerated” on her right knee (Tr. 458). Four months post surgery, Dr. Augustine informed
Plaintiff she should use a cane (Tr. 457). During Plaintiff’s post surgery visits with Dr.
Augustine, Plaintiff continued to complain of pain in the right knee (Tr. 455-60).
In November 2008, one of Plaintiff’s treating physicians at Family Care Partners, Dr.
Okie, referred Plaintiff for pain management at Riverside Spine with Dr. Chipman due to
Plaintiff’s knee surgery and continued pain (Tr. 510-13). On November 26, 2008, at
Plaintiff’s first meeting with Dr. Chipman, he found she had a normal non-antalgic tandem
gait (Tr. 511).
The record indicates Plaintiff continued to see Dr. Chipman for
approximately seven months (Tr. 541). On or about April 8, 2009, Dr. Chipman wrote a “To
Whom It May Concern” letter stating, “it is my medical opinion that Ms. Tara Hart has to
3
“Non-weight bearing” instructs a patient to place no weight on a leg, whereas “weight
bearing as tolerated” instructs a patient that weight may be placed on a leg up until pain,
and “full weight bearing” indicates full body weight may be placed on a leg. See Ohio
Health, Weight Bearing Orders, (2003),
http://www.ohiohealth.com/documents/orthopedics/weight_bearing_orders.pdf (last visited
Sept. 16, 2011).
4
elevate her legs above hip level at least two hours in any eight hour workday” (Tr. 531).4
On June 11, 2009, Dr. Chipman responded to a questionnaire prepared by Plaintiff’s
attorney, in which the doctor indicated Plaintiff could perform light work (Tr. 540-41).5
At the hearing on February 26, 2009, the VE testified that if Plaintiff were required
to elevate her legs above hip level at work she would no longer be able to perform any of
her past relevant work (Tr. 60). The VE stated, “anything above a small stool would not be
accommodated at a worksite” (Tr. 60). The VE responded in the affirmative to the inquiry
of whether the requirement for Plaintiff to elevate her leg (or legs) would eliminate all work
(Tr. 60-61). In response to this information, the ALJ agreed to leave the record open so
Plaintiff’s attorney could obtain a letter from one of Plaintiff’s primary care physicians stating
the need for Plaintiff’s leg to be elevated.6 Id. As previously explained, Dr. Chipman in
April 2009 wrote a letter stating Plaintiff must elevate her legs (Tr. 531). This letter was
submitted to ALJ Calvarese on May 19, 2009 by Plaintiff’s attorney (Tr. 223).
The ALJ concluded Plaintiff had the severe medically determinable impairments of
4
Given Plaintiff’s complaints of pain only in the right leg/knee, the Court finds it curious Dr.
Chipman would find Plaintiff needs to elevate both her legs during a workday.
5
Dr. Chipman responded: Plaintiff could lift 10-20 pounds frequently, 20-30 pounds
occasionally, sit for 1 hour at a time and 4-6 hours in an 8 hour work day, walk 100 feet,
work a simple unskilled job 6-8 hours in a day, need a 15 minute break every 1-2 hours in
the workday, and Plaintiff’s level of concentration would be affected by pain and other
symptoms.
6
The ALJ indicated he would like a medical statement from Dr. Williams or Dr. Augustine
detailing whether or not Hart needed to elevate her leg and the affect of such on her ability
to work (Tr. 62). Neither Dr. Williams nor Dr. Augustine provided such a letter in the record.
In fact, a letter from Plaintiff’s attorney indicates two requests were made of Dr. Augustine,
who apparently declined to respond (Tr. 222). The only such letter in the record is from Dr.
Chipman (Tr. 223, 531).
5
“status post arthroscopic surgery on the right knee, with continued pain; lumbar
spondylosis, with mild low back pain; hypertension controlled by medication; diabetes
mellitus, under medical control; asthma, controlled with medication; hyperlipidemia and,
obesity” (Tr. 18-19). The ALJ found these limitations do not support Plaintiff’s allegation
that she is disabled from all work (Tr. 19). Based upon the evidence in the record,
specifically Dr. Chipman’s June 2009 questionnaire with the support of the two RFCs, the
ALJ found Plaintiff could still perform less than a full range of light work consistent with her
RFC (Tr. 19-20). Relying in part on the VE’s testimony, the ALJ concluded Plaintiff, despite
her impairments, is capable of performing past relevant work as a data entry clerk, proof
machine operator, general clerk, and central office operator (Tr. 20).
III. STANDARD OF REVIEW
Plaintiff is entitled to disability benefits when she is unable to engage in substantial
gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to either result in death or last for a continuous period of not less
than 12 months. 42 U.S.C. §§ 416(I), 423(d)(1)(A); 20 C.F.R. §§ 404.1505, 416.905. The
Commissioner has established a five-step sequential evaluation process for determining
whether Plaintiff is disabled and therefore entitled to benefits. See 20 C.F.R. §§ 404.1520,
416.920; Crayton v. Callahan, 120 F.3d 1217, 1219 (11th Cir. 1997).7 Plaintiff bears the
burden of persuasion through Step 4, while at Step 5, the burden shifts to the
Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
The scope of this Court’s review is generally limited to determining whether the ALJ
7
All references made to 20 C.F.R. will be to the 2011 edition unless otherwise specified.
6
applied the correct legal standards, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir.
1988), and whether the findings are supported by substantial evidence, Richardson v.
Perales, 402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than
a scintilla – i.e., the evidence must do more than merely create a suspicion of the existence
of a fact, and must include such relevant evidence as a reasonable person would accept
as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.
1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and Richardson, 402
U.S. at 401.
Where the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the reviewer would have reached a contrary result as finder of fact,
and even if the reviewer finds that the evidence preponderates against the Commissioner’s
decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan,
932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision. Foote, 67
F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (court must
scrutinize the entire record to determine reasonableness of factual findings).
IV. ISSUES AND ANALYSIS
Plaintiff raises three issues. Plaintiff alleges the ALJ erred by not considering the
medical opinion of Dr. Chipman as a whole (Doc. #19 at 1). Plaintiff claims the ALJ “picked
and chose” parts of Dr. Chipman’s opinions to use, while ignoring other opinions by Dr.
Chipman. Id. at 12. Specifically Plaintiff claims the ALJ in crediting Dr. Chipman’s June
2009 opinion, did not limit Plaintiff to unskilled work, did not include the requirement of
7
breaks, did not include the need to change positions every hour, and did not include
moderate concentration limitations from the RFC. Id. Plaintiff further alleges, the ALJ
failed to mention, credit, or discredit the medical opinion expressed in Dr. Chipman’s April
2009 letter.
Id.
Second, Plaintiff alleges the ALJ erred by posing an incomplete
hypothetical question to the VE. Id. at 16. Specifically, Plaintiff asserts the ALJ erred when
he did not include the Plaintiff’s push/pull function limitation as identified in the RFC. Id. at
17. Lastly, Plaintiff alleges the ALJ erred by not considering the Plaintiff’s need to elevate
her leg at a worksite based upon the VE’s testimony and Dr. Chipman’s April 2009 letter.
Id. at 18.
Defendant contends, contrary to Plaintiff’s brief, the ALJ did properly credit Dr.
Chipman’s June 2009 opinion (Doc. #20 at 8). Defendant maintains Dr. Chipman did not
specifically limit Plaintiff to unskilled work or require a sit/stand option, instead he only
stated Plaintiff could work six to eight hours a day, and made no mention of a limitation to
unskilled work with a sit/stand option. Id. at 8-9. Dr. Chipman stated Plaintiff required a
fifteen-minute break every one to two hours; Defendant argues the ALJ included this as
“normal breaks” in his decision. Id. at 9. As to Plaintiff’s limitations in concentration,
Defendant asserts the ALJ properly evaluated this limitation and chose not to adopt it. Id.
at 10-11. The ALJ instead chose to give weight to Dr. Bee’s opinion that Plaintiff did not
have a severe mental impairment.
Id.
Defendant further claims the ALJ properly
considered Dr. Chipman’s April 2009 letter and the requirement Plaintiff need elevate her
leg, despite not mentioning it, because the ALJ stated he was giving little weight “to reports
that are inconsistent with the medical record” and that he had “reviewed the evidence of
record, whether or not that evidence is cited in this decision” (Tr. 18). Defendant also
8
states the ALJ properly used the VE testimony regarding Plaintiff’s ability to perform past
relevant work, despite not including the push/pull function restriction in the hypothetical
(Doc. #20 at 14). Defendant claims the omission by the ALJ is harmless as the positions
cited by the VE do not require use of push/pull functions with the lower extremities per the
Dictionary of Occupational Titles. See U.S. Dep’t of Labor, Dictionary of Occupational
Titles, (4th ed. 1991) 203.582-054, 1991 WL 671700 (data entry clerk), 217.382-010, 1991
WL 671944 (proof machine operator), 209.562-010, 1991 WL 671792 (general clerk),
235.462-010, 1991 WL 672169 (central officer operator).
Upon review of the ALJ’s decision and the record evidence, the Court finds
reversible error in the failure of the ALJ to even mention the April 2009 medical opinion of
Dr. Chipman that Plaintiff needs to elevate her legs. It is unclear whether the ALJ
considered this medical opinion. Therefore the Court will limit it’s findings and analysis to
this dispositive issue.
The opinion of Dr. Chipman and the requirement that Plaintiff need elevate her leg
Upon review of the entire record, the Court finds the only mention of a need for
Plaintiff to elevate her leg (or legs) is in the April 2009 letter from Dr. Chipman. While the
ALJ referenced and credited Dr. Chipman’s June 2009 opinion (Tr. 19), he made no
mention of Dr. Chipman’s April 2009 letter, nor did he indicate how he weighed the medical
opinion of Dr. Chipman regarding this letter. Medical opinions “are statements from
physicians and psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of [a claimant’s] impairment(s), including [the] symptoms,
diagnosis and prognosis, what [a claimant] can still do despite impairment(s), and . . .
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Under this definition, the
9
Court finds Dr. Chipman’s letter constitutes a medical opinion of a treating physician and
as such may be due the deference stated in the Regulations.
See 20 C.F.R. §
404.1527(d).
While the ALJ is not required to specifically refer to every piece of evidence used in
making his decision, the ALJ’s decision as a whole must be supported by substantial
evidence in the record. Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). A decision
is not based upon substantial evidence if it focuses on one aspect of the evidence while
disregarding other contrary evidence. McCruter v. Bowen, 791 F.2d 1544, 1548 (11th Cir.
1986). Failure to specify the weight given to evidence contrary to the ALJ’s decision, or the
reason for giving no weight, has been found to be reversible error. See Sharfarz v. Bowen,
825 F.2d 278, 279 (11th Cir. 1987); Krueger v. Astrue, No. 2:06-cv-465-Ftm-29SPC, 2008
WL 596780, *11 (Feb. 29, 2008 M.D. Fla) (quoting Nyber v. Commissioner, 179 Fed. Appx.
589, 590 (11th Cir. 2006))8.
Case law and the Regulations provide that an ALJ may discount the opinion of a
treating physician where there is good cause to do so. The Eleventh Circuit has concluded
“good cause” exists when: (1) the treating physician’s opinion was not bolstered by the
evidence; (2) the evidence supported a contrary finding; or, (3) the treating physician’s
opinion was conclusory or inconsistent with the doctor’s own medical records. Phillips v.
Barnhart, 357 F.3d 1232, 1240-41 (11th Cir. 2004) (citing Lewis v. Callahan, 125 F.3d 1436,
8
Unpublished opinions may be cited throughout this report and recommendation as
persuasive on a particular point. The Court does not rely on unpublished opinions as
precedent. Citation to unpublished opinions on or after January 1, 2007 is expressly
permitted under Rule 32.1, Fed. R. App. P. Unpublished opinions may be cited as
persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36-2.
10
1440 (11th Cir. 1997)). An ALJ must clearly articulate his reasons for electing to disregard
the opinion of a treating physician. Id. at 1241. Failure to state with particularity the weight
given to medical opinions or reasons for rejecting a medical opinion is reversible error.
Sharfarz, 825 F.2d at 279. “Without the ALJ stating the specific weight given to different
medical opinions and the reasons therefor, it is impossible for a reviewing court to
determine whether the ultimate decision is supported by substantial evidence.” See, e.g.,
Hudson v. Heckler, 755 F.2d 781, 786 (11th Cir. 1985). Therefore the Eleventh Circuit has
found a court should decline to affirm “simply because some rationale might have
supported the ALJ’s conclusion.” Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984).
Remand is proper, even when it is possible the ALJ considered and rejected the
medical opinion in question, yet “without clearly articulated grounds for such a rejection, we
cannot determine whether the ALJ’s conclusions were rational and supported by substantial
evidence.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)
(remanding a case, in part, due to the ALJ’s failure to mention or specify the weight given
to a treating physician’s opinion despite mentioning the physician in the decision); see also
Wiggins v. Schweiker, 679 F.2d 1387, 1389-90 (11th Cir. 1982) (remanding a case where
the ALJ did not mention or even allude to a treating physician’s second report, let alone
state the weight given to that physician’s evidence); Kruger, 2008 WL 596780 at *11
(remanding a case due to the ALJ’s failure to consider a medical opinion that conflicted with
the ALJ’s decision and directing the ALJ make a determination of the weight given to the
omitted opinion and any reason for giving the opinion no weight); Nyberg, 179 Fed. Appx.
at 592 (remanding a case where the ALJ did not mention a treating physician’s opinion that
was contrary to the ALJ’s decision and where the potential impact of the opinion is heavily
11
disputed by the parties).
In the present case, the ALJ claimed he gave “greater weight” to the “reports and
opinions of . . . Chipman . . . .” (Tr. 18). It is clear from the record that the ALJ did credit
Dr. Chipman’s June 2009 questionnaire, at least in part, however it is unclear what weight,
if any, the ALJ gave to Dr. Chipman’s April 2009 letter. The ALJ fails to make any
reference to Dr. Chipman’s letter (Tr. 531) in his decision. Perhaps the ALJ considered it
inconsistent with the subsequent June 2009 questionnaire. But after the ALJ agreed to
leave the record open to receive such a letter, he should have made a finding on the weight
given the opinion expressed in the letter. Although the ALJ has wide latitude to evaluate
the weight of the evidence, he must do so in accordance with the Regulations and the
prevailing precedent.
This is not a case where the unmentioned evidence would support the ALJ’s
decision, and thus the outcome would not change regardless of the weight given to the
evidence. This is a situation where the unmentioned evidence, and the VE’s testimony on
Plaintiff’s need to elevate her legs, if given great or significant weight could conceivably
change the outcome that the Plaintiff can perform past relevant work. Since this evidence
is contrary to other evidence in the record, according to Eleventh Circuit precedent the
ALJ’s decision is not based on substantial evidence. See McCruter, 791 F.2d at 1548.
This case is not analogous to Dyer where failure to mention a piece of evidence was
found to be harmless error. In Dyer, the court found failure to mention the plaintiff was
taking Lortab for pain to be harmless. See Dyer, 395 F.3d 1206. Whereas in the instant
case, the ALJ has failed to mention a medical opinion from a treating physician stating a
requirement that, if accepted as true, could change the ALJ’s decision. The present case
12
is more analogous to the Eleventh Circuit decisions in Winschel and Wiggins.9 In those
cases the ALJs failed to mention a medical opinion of a treating physician, the opinions
were contrary to the ALJ’s decision, and the cases were remanded due to the failure of the
ALJ to specify the weight given to the treating physician’s medical opinion or due to the
failure of the ALJ to specify the reasons for rejecting or discrediting the medical opinion of
a treating physician.
Under Eleventh Circuit precedent, the ALJ’s failure to mention, discuss, credit, or
discredit the April 2009 opinion from Dr. Chipman is a reversible error. The stated
restrictions in the letter, if adopted by the ALJ, would change the VE’s recommendation that
the Plaintiff can perform her past relevant work; as such, the possibility of this restriction
needs to be examined closely. The ALJ found the Plaintiff’s pain in her right knee to be a
severe impairment (Tr. 18-19). The VE testified Plaintiff’s requirement to elevate her legs
above hip level would eliminate all possible past relevant work (Tr. 60-61). The weight
afforded to Dr. Chipman’s opinion on this issue could make a difference in the ALJ’s final
decision. As it is impossible for the Court to tell if the ALJ credited or discredited Dr.
Chipman’s April 2009 opinion this case must be remanded for further consideration.
V. CONCLUSION
Upon review of the ALJ’s decision and the underlying record, the Court finds for the
reasons stated herein, the decision of the Commissioner is REVERSED pursuant to
sentence four of 42 U.S.C. 405(g). The case is REMANDED for additional proceedings
9
The Court recognizes that the Winschel opinion was issued after Plaintiff had filed her
brief in this case, yet before Defendant had filed its brief. However, it is a published opinion
and therefore controlling law in the Eleventh Circuit.
13
consistent with this Order and Opinion.
On remand, the ALJ must consider all medical opinions of Dr. Chipman and give the
proper weight to the opinions and statements of each as required by the law of this circuit.
See Lewis, 125 F.3d at 1440-41; Sharfarz, 825 F.2d at 279-81. If the ALJ finds reason to
disregard a medical opinion of Dr. Chipman, he must provide specific reasons for doing so
and these reasons must be supported by substantial evidence in the record. On remand,
the ALJ may reopen the record and accept any additional evidence deemed appropriate
Plaintiff Hart is cautioned, however, that this opinion does not suggest Plaintiff is
entitled to disability benefits. Rather, it speaks only to the process the ALJ must engage
in and the findings and analysis the ALJ must make before determining whether Plaintiff
is disabled within the meaning of the Social Security Act. Phillips v. Barnhart, 357 F.3d
1232, 1244 (11th Cir. 2004).
Directions as to Judgment:
The Clerk of Court is directed to enter judgment consistent with this Order and
Opinion, and thereafter to close the file. The judgment shall state that if Plaintiff were to
ultimately prevail in this case upon remand to the Social Security Administration, any
motion for attorney fees under 42 U.S.C. § 406(b) must be filed within thirty (30) days
of the Commissioner’s final decision to award benefits. See Bergen v. Comm’r of Soc.
Sec., 454 F.3d 1273, 1278 n. 2 (11th Cir. 2006) (recognizing under Fed. R. Civ. P.
54(d)(2)(B) the district court may enlarge the time for any attorney to petition for fees and
suggesting time be stated in the judgment); compare with Fed. R. Civ. P. 54(d)(2)(B) and
M.D. Fla. Loc. R. 4.18(a) (both requiring that unless a statute or court order provides
14
otherwise, any motion for attorney fees must be filed no later than fourteen (14) days after
entry of judgment) (emphasis added).
This Order and Opinion does not, however, extend the time limits for filing a motion
for attorney fees under the Equal Access to Justice Act.
DONE AND ORDERED at Jacksonville, Florida this 19th
Copies to all counsel of record
15
day of September, 2011.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?