REPORT AND RECOMMENDATION1

JOEL B. TOOMEY, Magistrate Judge.

THIS CAUSE is before the undersigned on Plaintiff's appeal of an administrative decision denying his applications for Period of Disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") (Tr. 11-18). A hearing was held before the assigned Administrative Law Judge ("ALJ") on January 30, 2012, at which Plaintiff was represented by an attorney. (Tr. 11.) The ALJ found that Plaintiff was not disabled from April 20, 1998,2 through March 29, 2012, the date of the ALJ's decision. (Tr. 17-18.)

In reaching his decision, the ALJ found that Plaintiff had the severe impairments of "right shoulder stenosis/rotator cuff tear; cervical stenosis/spondyliosis, post surgery; and lumbar stenosis/spondyliosis, post surgery." (Tr. 13.) The ALJ also found that Plaintiff had the residual functional capacity ("RFC") to perform:

(Tr. 14.)

Plaintiff has exhausted his available administrative remedies and the case is properly before the Court. For the reasons stated in the attached transcript of the pronouncement of recommendation on June 27, 2014 (Doc. 31),3 which is incorporated herein by reference, and as elaborated on herein, the undersigned respectfully RECOMMENDS that the Commissioner's decision be REVERSED AND REMANDED.

I. Standard of Review

As the Eleventh Circuit has stated:

Carson v. Comm'r of Soc. Sec., 440 F. App'x 863, 864 (11th Cir. 2011) (per curiam) (citations and quotation marks omitted).

II. Discussion

A. The ALJ's decision is tainted by an erroneous determination of Plaintiff's alleged disability-onset date.

Plaintiff argues that the Commissioner's decision should be reversed because "[t]he ALJ's decision is based on supporting facts that are either incorrect or [c]ited incorrectly." (Doc. 23 at 4.) Specifically, Plaintiff argues that the ALJ believed Plaintiff's alleged disability-onset date to be April 20, 1998, which is more than ten years earlier than Plaintiff's actual alleged disability-onset date of July 21, 2008. (Id.)

As stated in the attached transcript, the undersigned agrees that the ALJ committed reversible error, even though the mistake stems from Plaintiff's own SSI application (Tr. 176). On May 22, 2009, Plaintiff filed two concurrent applications for disability benefits with the Social Security Administration, one for DIB and one for SSI. (Tr. 167, 171.) On his DIB application, Plaintiff alleged a disability-onset date of July 21, 2008. (Tr. 167.) But on his SSI application, he gave his disability-onset date as April 20, 1998. (Tr. 171.) The ALJ apparently took the alleged disability-onset date from Plaintiff's SSI application.

However, "Social Security proceedings are inquisitorial rather than adversarial." Sims v. Apfel, 530 U.S. 103, 111-12 (2000); see also Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997) ("A hearing before an ALJ is not an adversary proceeding."). Consequently, "the ALJ has a basic obligation to develop a full and fair record." Graham, 129 F.3d at 1422. Here, the ALJ did not meet this obligation. The record in this case makes clear that Plaintiff's DIB application provided the correct disability-onset date. For example, Plaintiff showed substantial earnings for every year from 1997 through 2008, with the exception of 1999.4 (See Tr. 195.) At the very least, the obvious discrepancy between the two applications should have prompted the ALJ to obtain clarification. A minimal inquiry would have disclosed the error.

Moreover, this error prejudiced Plaintiff, and therefore requires reversal. See Caldwell v. Barnhart, 261 F. App'x 188, 191 (11th Cir. 2008) (applying harmless error analysis to affirm an ALJ's decision). In determining Plaintiff's RFC, the ALJ discounted Plaintiff's testimony about the extent of his impairments. "If the ALJ finds that the testimony of the claimant is not credible the ALJ must articulate the reasons for finding the lack of credibility." Castel v. Comm'r of Soc. Sec., 355 F. App'x 260, 264 (11th Cir. 2009). In supplying these reasons, the ALJ observed that Plaintiff's April 20, 1998 "alleged onset date has very little support," that Plaintiff "had no treatment from February 2008 until May 2009," and that Plaintiff "reportedly worked until July 2008." (Tr. 16.) However, as Plaintiff's proper alleged disability-onset date was July 21, 2008, one would expect there to be little support for an onset date of ten years earlier. Further, in light of the correct onset date, the fact that Plaintiff worked until July 2008 does not undermine Plaintiff's credibility, and neither does Plaintiff's lack of treatment before this date.

For this reason alone, the undersigned recommends that the Commissioner's decision be reversed and remanded, so that the ALJ can reconsider his decision, including his determination of Plaintiff's credibility, in light of Plaintiff's correct alleged disability-onset date.

B. On remand, the ALJ should state the weight he gives to the testimony of Plaintiff's girlfriend, and his reasons for giving such testimony that weight.

Next, Plaintiff argues that the ALJ erred by failing "to give proper weight to the testimony of Claimant's girlfriend," Michelle Zimmer. (Doc. 23 at 5.) In his decision, the ALJ noted that "the claimant's girlfriend testified that the claimant can walk no more than 1/2 a block." (Tr. 16.) But the ALJ never mentions Ms. Zimmer's testimony again, does not assign it any particular weight, and never explicitly discounts it. In support of his contention that this constitutes reversible error, Plaintiff offers one Eleventh Circuit case reversing the Commissioner in part because the ALJ "failed to state the weight accorded to each item of impairment evidence and the reasons for his decisions on such evidence." See Gibson v. Heckler, 779 F.2d 619, 623 (11th Cir. 1986). This "impairment evidence" included "an affidavit by [claimant's] daughter which in effect stated that [claimant] could no longer care for herself." Id. at 622.

Because it is obvious that the ALJ implicitly discounted Ms. Zimmer's testimony, his failure to specify the weight assigned to Ms. Zimmer's testimony might not support reversal on its own. See Taylor v. Comm'r of Soc. Sec., 213 F. App'x 778, 781 n.1 (11th Cir. 2009) (stating that an ALJ need not "specifically refer to every piece of evidence in his decision"). However, because the undersigned recommends reversal and remand on the first issue identified above, the undersigned also recommends that the Court order the ALJ to state the weight he gives to Ms. Zimmer's testimony, and his reasons for doing so.

C. The ALJ erred in placing great weight on a physical RFC assessment done by a state agency doctor prior to Plaintiff's spine surgeries.

Finally, Plaintiff argues that the ALJ erred in affording great weight to a physical RFC assessment done by Dr. Murthy Ravipati on October 22, 2009. (See Doc. 23 at 9-10.) As discussed in the attached transcript, Dr. Ravipati's assessment (Tr. 352-59) relied in part upon a consultative exam performed by Dr. Krishna Moorthy on July 16, 2009 (Tr. 302-07). (See Tr. 353.) But both Dr. Moorthy's exam and Dr. Ravipati's assessment were done before Plaintiff underwent two spinal fusion surgeries, in November 2009 (cervical) and 2011 (lumbar). The undersigned therefore agrees with Plaintiff that the ALJ's assignment of great weight to Dr. Ravipati's early assessment was unreasonable, and therefore not supported by substantial evidence. Reversal and remand is recommended for this reason.

Plaintiff argues that the ALJ should have ordered another examination of Plaintiff, so as to fully develop the record. (See Doc. 23 at 9.) The undersigned recommends that on remand, the Court leave this decision to the ALJ, as additional medical records may make such an examination unnecessary. That said, the ALJ should be reminded of his obligation to develop a full and fair record upon which to base his decision. Graham, 129 F.3d at 1422.

III. Conclusion

For the reasons stated herein, the undersigned recommends that the ALJ committed reversible error. Therefore, the case should be reversed and remanded for further administrative proceedings.

Accordingly, it is respectfully RECOMMENDED that this Court's order state in substance the following:

"1. The Commissioner's decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).

2. On remand, the ALJ is required to (a) reconsider Plaintiff's applications and the record in light of the correct alleged date of disability onset; (b) reevaluate Plaintiff's credibility; (c) reevaluate the testimony of Ms. Zimmer, and state the weight assigned to this testimony and why; (d) reconsider Dr. Murthy Ravipati's opinions; (e) ensure that a full and fair record is developed; (f) reconsider Plaintiff's RFC, if appropriate; and (g) conduct any further proceedings deemed appropriate.

3. Should this remand result in the award of benefits, Plaintiff's attorney is GRANTED, pursuant to Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure, an extension of time in which to file a petition for authorization of attorneys' fees under 42 U.S.C. § 406(b), until thirty (30) days after 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 fees. See In re: Procedures for Applying for Attorney's Fees Under 42 U.S.C. § 406(b) & 1383(d)(2), Case No. 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 13, 2012). The extension does not apply to the filing of a motion for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.

4. The Clerk of the Court is DIRECTED to enter judgment consistent with the Order and close the file."

DONE AND ENTERED.

IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

TRANSCRIPT OF PRONOUNCEMENT OF RECOMMENDATION BEFORE THE HONORABLE JOEL B. TOOMEY UNITED STATES MAGISTRATE JUDGE

OFFICIAL COURT REPORTER:

(Proceedings reported by stenography; transcript produced by computer.)

PROCEEDINGS

COURT SECURITY OFFICER: All rise. The United States District Court, in and for the Middle District of Florida is now in session. The Honorable Joel B. Toomey presiding..

Please be seated.

THE COURT: We are here for pronouncement of recommendation in Busho versus Colvin, Case Number 8:13-cv-2921. And I gave the parties the option of attending either in person or by phone, if they wanted to.

And let the record reflect that it's — the hearing is supposed to start at 2:00, and it's almost ten after 2:00, and neither has called in and neither party is present in the courtroom, so — which is fine, but so neither attorney has appeared.

So I'll go ahead and announce the pronouncement, and this will be part of a written Report and Recommendation to the district judge that will come at a later time, and it will incorporate the transcript of this pronouncement.

And I am going to recommend that the commissioner's decision be reversed in this case and remanded to the ALJ for further proceedings.

There were four issues raised, and I think all the issues, to one extent or the other, have merit to them.

The first issue was that the ALJ decision is based on supporting facts that are either incorrect or cited incorrectly.

And I agree with this argument to the extent at least that the ALJ made what I consider a critical error on the onset date of disability.

In the decision on page 11, the ALJ says, The claimant is alleging disability since April 20, 1998.

Well, the actual date should be July 21, 2008. So more than 10 years later.

Now, there were two applications at issue. One was the application for DIB, and the alleged onset date there was July 21, 2008, which is the correct date.

There was another application for SSI, and the alleged date there was April 20, 1998. So that is where the ALJ gets that from.

However, that date of 1998 was clearly in error, and I think it was incumbent on the ALJ to recognize that.

For example, on page 195 of the transcript is the earnings record of the claimant, and it clearly shows earnings pretty much every year from 1997 through 2008, other than 1999. And so in 2005, 2006, 2007, for example, all those years the claimant earned $20,800.

So, again, recognizing that the proceeding is not supposed to be a purely adversarial proceeding, I think the ALJ needed to recognize the correct date of onset of disability, and the failure to do that made a significant difference in the case.

For example, on page 13, the ALJ makes a finding which is incorrect, where he says in paragraph 2, The claimant has not engaged in substantial gainful activity since April 20, 1998, the alleged onset date.

Well, that's just wrong. There was — as I just went through, substantial gainful activity up through 2008.

Now, the next sentence, the ALJ says, The claimant earned $11,200 during 2008. So there the ALJ seems to be recognizing an onset date in 2008, but yet his finding says the onset date was in 1998.

So the opinion — the decision just becomes confusing and starts to not really make a lot of sense.

For example, again — and this gets to another issue that the claimant raised. On page 16, in discounting the claimant's credibility, the ALJ says that the alleged onset date has very little support. The claimant had no treatment from February of 2008 until May 2009. The lack of evidence during this period simply does not support the claimant's allegations. Further, the claimant reportedly worked until July 2008.

Well, the claimant did work until July 2008, but that was okay, given that the actual onset date should have been July 21st, 2008.

So I think on that ground alone, there's a serious problem with the decision.

And then when you add in the remainder of the issues, like I said, I'm going to recommend a reversal.

The second issue raised is that the ALJ erred in failing to give proper weight to the testimony of the claimant's girlfriend.

I don't completely agree with that statement, but I agree with it to the extent that the ALJ should have at least stated what weight he was giving to the girlfriend's testimony and why.

So the claimant's girlfriend did testify at the hearing, and at one point in the decision, the ALJ did recognize that the girlfriend testified.

And this is on page 16, where the ALJ notes that the claimant's girlfriend testified that the claimant could walk no more than half a block.

But then the ALJ never mentioned the girlfriend's testimony again. Never discounted the credibility of the girlfriend, although obviously the ALJ meant to do that.

But I think given the fact that there was testimony at the hearing that the ALJ should have at least, like I said, stated what weight he was giving it and why.

The third issue raised is that the ALJ erred in failing to make a proper credibility finding as to the claimant's testimony, and erred in improperly discrediting the claimant's complaints of pain and subjective symptoms.

Again, I agree with that to the extent that the ALJ gave as one reason to discount the claimant's credibility the fact that the onset date had little support.

And, again, that's where all the confusion of the onset date comes into play again.

And then the — because the ALJ is relying on the fact that there was no treatment from February of 2008 till May 2009.

Well, with a correct onset date of July 21st, 2008, it wouldn't matter that there was no treatment at least from February of 2008 till July 2008.

Then also when the ALJ says that the claimant reportedly worked until July of 2008, as a reason to discount the claimant's credibility, again, that doesn't make sense when the correct onset date of July 21st, 2008, is noted.

So there were other reasons that the ALJ gave to discount the claimant's credibility. But I think the — I don't think I need to get into those reasons, and I don't think the district judge does either, because I think the analysis is flawed, again, because of the problem with the onset date.

And then finally, the last issue raised is that the ALJ failed to fully and fairly develop the record by placing great weight on a physical RFC conducted essentially prior to two spinal fusion surgeries.

And I think this argument has merit as well, at least to the extent that the ALJ's decision to give great weight to the state agency doctor, I don't think, is supported by substantial evidence in this case for the following reasons.

The state agency doctor's opinion is dated October 22nd 2009. It relies in part on the consultative exam of July 16, 2009.

Well, the claimant — and I should point out that in that exam, which starts on page 302 of the transcript, and it's Exhibit B3F. And it's Dr. Moorthy, M-o-o-r-t-h-y. His final impression was that the claimant had a chronic cervical and lumbar strain.

Well, that impression is put into a lot of doubt when the claimant actually undergoes a cervical fusion in November of 2009, and then in 2011, a lumbar fusion.

So I think to rely on a state agency doctor's opinion that comes before these obviously significant spinal surgeries is not reasonable and therefore is not supported by substantial evidence.

So the claimant argues that the ALJ should have ordered another examination. On remand, I don't know whether that will be necessary or not, because I assume that there will be additional medical records getting into the record on remand, so I don't think it's necessary to order the ALJ to do anything specifically, other than noting that the ALJ does have an obligation to develop a full and fair record. And so the ALJ does have some discretion in how to do that.

But I think in terms of the record that we have here, like I said, I don't think the ALJ's decision to give great weight to the state agency doctor is supported by substantial evidence.

So those are the four issues that were raised on appeal. And, like I said, I'll be entering a written Report and Recommendation to the district judge recommending reversal and remand to the ALJ for the reasons given.

And so court will be in recess.

COURT SECURITY OFFICER: All rise. (Proceedings concluded at 2:21 p.m.)