Johnson v. Commissioner of Social Security, No. 2:2013cv00137 - Document 29 (M.D. Fla. 2014)

Court Description: OPINION AND ORDER adopting 26 Report and Recommendations; overruling 27 Objection; reversing and remanding the Decision of the Commissioner to the Commissioner pursuant to sentence four as set forth in the Opinion and Order. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 7/10/2014. (RKR)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION ALFRED JOHNSON, Plaintiff, v. Case No: 2:13-cv-137-FtM-29CM COMMISSIONER SECURITY, OF SOCIAL Defendant. OPINION AND ORDER This matter is before the Court on consideration of Magistrate Judge Carol Mirando s Report and Recommendation (Doc. #26) filed on June 9, 2014, recommending that the Decision of the Commissioner be reversed and remanded with instructions to the Commissioner. The Commissioner filed Objections to the Magistrate Judge s Report and Recommendation (Doc. #27) on June 18, 2014, and plaintiff filed a Response (Doc. #28) on June 30, 2014. I. 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 evidence. the decision Crawford, reached 363 F.3d is at supported 1158-59 by substantial (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. Comm r of Soc. Sec. Admin., 496 F.3d 1253, 1260 Ingram v. (11th Cir. 2007)(citing Martin, 894 F.2d at 1529). II. The Report and Recommendation finds that the Appeals Council erred in denying review and that the ALJ erred in failing to obtain the testimony of a vocational expert at Step Five of the sequential evaluation process. The Commissioner objects, asserting that there was no error by the Appeals Council because the new evidence was not material, and no error by the ALJ because testimony from a vocational expert was unnecessary. After review of the record, the Court overrules the Commissioner s objections, adopts the - 2 - Report and Recommendation, reverses, and remands the case to the Commissioner. A. Appeals Council s Denial of Review The record establishes that plaintiff presented evidence of mental impairments to the ALJ. impairment evidence. The ALJ recognized this mental (Doc. #16-2, Tr. 15.) At Step Three, the ALJ evaluated the evidence under the criteria of listings § 12.02 and § 12.04. (Id., Tr. 16.) The ALJ found that plaintiff had not satisfied the criteria for these sections, but never considered plaintiff s evidence under § 12.05 (mental retardation), which was raised at the hearing (id., Tr. 36). After the unfavorable ALJ decision, plaintiff obtained an evaluation from Dr. Nancy T. Spencer, which he submitted to the Appeals Council with a request for review in light of new evidence. (Id., Tr. 1-4, 6, 9.) The Appeals Council denied review. With or without Dr. Spencer s new report, the ALJ erred and Appeals Council erred in denial of review. evidence of plaintiff s mental The ALJ had sufficient retardation to require his consideration of § 12.05 at Step Three, but the ALJ failed to make any findings about § 12.05. Further, the new evidence by Dr. Spencer should have been considered by the Appeals Council because such review would have corrected the ALJ s error (failing to make any determination regarding § 12.05) even if the ultimate decision was that plaintiff failed to satisfy § 12.05. - 3 - B. Exclusive Use of the Grids At Step Five, the ALJ found plaintiff had significant nonexertional impairments, and could perform a wide range of light exertional work with minimal non-exertional limitations. #16-2, Tr. 19-20.) (Doc. While the ALJ stated that the non-exertional impairments did not limit his ability to work (Doc. #16-2, Tr. 6), there was no evidence in the record to support that conclusion. The Eleventh Circuit law is clear that a vocational expert was required under these circumstances. Accordingly, it is now ORDERED: 1. The Report and Recommendation (Doc. #26) is accepted and adopted by the Court. 2. The Commissioner's Objection (Doc. #27) is OVERRULED. 3. 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: (1) determine whether, in light of all the evidence, plaintiff meets Listing 12.05C of 20 C.F.R., Part 404 P, Appendix 1, and (2) if the evaluation proceeds to Step Five, obtain the services of a vocational expert as to plaintiff s ability to perform other jobs in the national economy given the limitations of his residual functional capacity. - 4 - 4. The Clerk of the Court shall enter judgment accordingly and close the file. DONE and ORDERED at Fort Myers, Florida, this of July, 2014. Copies: Hon. Carol Mirando U.S. Magistrate Judge Counsel of Record - 5 - 10th day

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