MARY S. SCRIVEN, District Judge.
In the Eleventh Circuit, a district judge may accept, reject or modify the magistrate judge's report and recommendation after conducting a careful and complete review of the findings and recommendations. 28 U.S.C. § 636(b)(1)(C);
In the instant case, the Magistrate Judge undertook a thorough analysis of the record and applicable law, making several legal and factual conclusions. Ultimately, Judge McCoun concluded, that the decision of the Commissioner of the United States Social Security Administration "is not supported by substantial evidence or is not in accordance with the correct legal standards. . . ." (Dkt. 20 at 22) The Magistrate Judge recommended that the Commissioner's decision, to deny the Plaintiff's claims for SSDI benefits and SSI payments, "be reversed and remanded for further proceedings before the Commissioner consistent with [the] Report and Recommendation." (
Just by way of example, Dr. Urso is the Plaintiff's only treating physician of record. (Dkt. 20 at 15 n.12) In February of 2005, the doctor completed a statement of Plaintiff's residual functional capacity.
The ALJ, however, gave "little weight" to Dr. Urso's opinion on the Plaintiff's physical limitations. (Dkt. 20 at 16; Dkt. 7 at 559) According to the ALJ, Dr. Urso "did not reference specific objective medical findings to support his opinion," and Dr. Urso's "hand written notes were mostly concerned with medication control and there was little to no mention of any objective findings, . . . [and there] was no evidence of a physical examination."
Even a cursory review of the record reveals that Dr. Urso did reference specific objective medical findings to support his opinions, and his medical notes are not primarily concerned with pain control. From 2001 to 2009 the record is replete with Dr. Urso's notations of objective findings as to the Plaintiff's prior injuries, resulting cervical neuritis, lumbar and peripheral neuropathy, as well as neuropathy of his lower extremities. (Dkt. 7 at 467, 472, 528-530, 534-539, 661-668) Additionally, the record reflects that Dr. Urso performed numerous physical examinations and noted that the Plaintiff suffered from chronic pain, muscle spasms, limited leg raising capacity, limited range of motion and back pain. (Dkt. 7 at 467, 529, 530, 538-539, 661-663) On its independent review of the record, the Court concurs with the findings of Judge McCoun in this regard. Therefore, the Court concludes that the ALJ's reasons for discounting the treating physician's opinions are "unpersuasive and unsupported by substantial evidence," as found by Judge McCoun. (Dkt. 20 at 20-21)
Although the Commissioner committed reversible error in discounting Dr. Urso's opinions, there is still uncertainty as to the exact onset date of Plaintiff's disability, if any, and whether he would be eligible for benefits, and, if so, what category of benefits and how much Plaintiff is owed. Accordingly, the Court
Upon consideration of the Report and Recommendation, and in conjunction with an independent examination of the file, it is hereby
The Plaintiff seeks judicial review of the denial of his claims for Social Security disability benefits and Supplemental Security Income payments. Despite the protracted history of this case, I recommend that it once again be reversed and remanded for further consideration because the decision of the Commissioner of the United States Social Security Administration is not supported by substantial evidence or is not in accordance with the correct legal standards.
Plaintiff was forty-years old at the time he filed for benefits in March 1999. He has a tenth grade education and former work as a production supervisor for a tile company. Plaintiff applied for disability benefits and Supplemental Security Income payments alleging disability as of May 15, 1998, by reason of anxiety, depression, stress, a fractured vertebra, pain in the hips and legs, and high cholesterol. Plaintiff's applications were denied originally and on reconsideration. Plaintiff received his first de novo hearing before an Administrative Law Judge ("ALJ") in April 2000. The ALJ denied the applications by decision of December 11, 2000. (R. 16-26). That decision was reversed by this court on the Commissioner's motion for remand on November 24, 2002. (R. 354).
A review of the first two administrative hearings reflects the following. At the hearing in April 2000, Plaintiff testified that he could no longer work due to pain in his head, shoulders, and extremities and because of anxiety and depression. He fractured a vertebra in 1990 when he fell off a kiln. He had years of pain that came to a head in 1998 when he just could not take it anymore. He claimed he was terminated in May 1998. He took numerous medications for his pain, anxiety, and depression. While his medications helped some, they caused him confusion, trouble with his bowels, fatigue, nervousness, and difficulty sleeping.
Plaintiff could stand for ten to fifteen minutes and sometimes for thirty minutes, but then his back and legs bothered him. He had difficulty sitting comfortably and had to change position because his back, neck, and shoulders bothered him. He could walk about a half block but he had problems walking stairs and on uneven ground, and he got dizzy and his back hurt. He could squat and bend but with pain. Lifting hurt his back and legs. He had a problem with numbness in his arms and pain in his hips. His most comfortable position was lying down with his legs propped up.
His anxiety affected him being around others. He claimed his heart races, and he feels pressure, fear, and the need to get away. His depression caused him to feel worthless and confused. He had difficulty remembering things and making decisions.
Plaintiff could take care of his personal needs, his home, and his yard, but he had to take his medications and breaks. He attended church a couple times each week and he drove, but only when he had to. (R. 51-72).
In anticipation of the administrative hearing in February 2005, the ALJ obtained updated evidence related to an orthopedic evaluation by Dr. Jesse Morgan, M.D. and a psychological assessment by Dr. Tracey Henley, Psy.D. Plaintiff testified at that hearing that his anxiety started in 1986 or 1990 or somewhere in that area. He missed a lot of work because of that condition although he worked until May 1998 when he felt he could no longer function physically or mentally. He had headaches, neck and shoulder pain, back pain, his legs ached from his knees down, and his hips felt tense. He attributed his head and neck pain to being hit in the head by a fellow employee with a wrench in 1984 or 1985. He fractured his back when he fell off a kiln. He said he had a screw in his hip but he could not explain where that came from. He again testified that he attempted to return to work in August 1998 but that lasted only two weeks. He collected unemployment benefits for a while. He also received a settlement on a claim that he was wrongfully terminated.
Plaintiff indicated that his pain was at a level of five to six back at that time and it has gotten worse, up to an eight or nine. His right leg ached and this affected his walking.
Plaintiff had emotional difficulties in May 1998 as well. His memory and concentration were poor. He had problems writing reports. He had panic attacks, cried a lot, was anxious, had no energy, and had difficulty making decisions. He had thoughts of suicide. His problems continued and have gotten worse. He also had problems sleeping, suffered nightmares, and heard voices. He took a variety of medications to help him sleep, for muscle spasms, headaches, pain, depression, nerves, and anxiety. They made him feel weak, unstable, high, groggy, dizzy, nauseous, and bloated. They also caused problems with his bowels.
Plaintiff testified that he was highly limited by his assorted aches and pains. He stated that he could not sit for six hours in an eight-hour workday due to pain and numbness. He could sit comfortably for only fifteen to twenty minutes. He could not stand or walk for two hours in an eight-hour workday because of the aches and pain. He could only stand for a minute or two comfortably. He could walk fifteen or twenty feet comfortably. He had problems walking on uneven ground. He could not lift a gallon of milk repetitively. His fingers went numb, his grip was weak, and he had difficulty writing. The numbness in his hands caused him to drop things four or five times a day. He could not stoop for long and bending hurt too bad.
During the day he lay down on the floor or in bed about three hours. He used a recliner for four or five hours. His fingers and toes went numb when he was in the recliner. He could not sleep well and alternated between the bed and the floor. His wife did most of the household chores. He had no hobbies and did not socialize. He had trouble making decisions. He had to reread things. He did not drive much because of his conditions. (R. 322-44).
At his most recent administrative hearing in February 2010, the ALJ indicated that he had read the prior hearing transcripts and counsel confirmed that Plaintiff's condition had remained the same. On limited inquiry, the Plaintiff testified his wife has been on disability since 1995 because of a back injury suffered in a motor vehicle accident. He was able to pay off his mobile home in 2003 with funds from his retirement account. He claimed to have suffered a nervous breakdown in 1998. He took a leave of absence and he received some disability benefits and later some unemployment benefits. He tried to return to work for a couple of weeks but that ended unsuccessfully. (R. 684-92).
Richard Hall, a VE, classified Plaintiff's past work as medium exertional, skilled work with transferable skills related to mathematics, active listening, problem identification, reading comprehension, writing, and project inspection. On a hypothetical posed by the ALJ that assumed an individual of Plaintiff's age, education and work experience capable of light exertional work with moderate mental-related limitations, the VE indicated such person could not do Plaintiff's former work but could do work as a clerk, meter reader, and mail handler. If such individual had a marked limitation in carrying out detailed instructions, no such work was available. However, the individual could still perform jobs such as mail clerk, cleaner, and marker. On questioning by Plaintiff's counsel and assuming limitations imposed by Dr. Urso (Exhibit 30F), the VE testified no work would be available. Similarly, if the assessment by Dr. Henley (Exhibit 25F) concerning mental limitations was adopted, no work would be available. (R. 692-700).
By his decision of March 17, 2010, the ALJ determined that while Plaintiff has severe impairments related to status post fracture of the T-12 vertebrae and a bipolar disorder, he nonetheless had the residual functional capacity to perform a restricted range of light exertional work. Upon this finding and the testimony of the VE, the ALJ concluded that Plaintiff could perform jobs available to him in the local and national economy. Upon this conclusion, the Plaintiff was determined to be not disabled. (R. 551-61). At the time of this decision, Plaintiff was fifty-one years old.
On or about April 14, 2010, Plaintiff requested review of the decision. Therein, Plaintiff requested a copy of the file, a transcript of the hearing, and an extension of time to file a memorandum. Among several exceptions to the decision, Plaintiff expressly complained that a report received post-hearing and referenced by the ALJ had not been forwarded to Plaintiff and evidence that had been filed by him was not mentioned. (R. 545-46). On June 30, 2010, the Appeals Council provided a copy of the transcript and granted Plaintiff an extension of time but the requested report was not provided. (R. 543-44). On September 9, 2010, the Appeals Council denied Plaintiff's request for review and the ALJ's decision became the final of the Commissioner. (R. 540-42).
In order to be entitled to Social Security disability benefits and Supplemental Security Income payments, a claimant must be unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). A "physical or mental impairment," under the terms of the Act, is one that "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." Id. at § 423(d)(3).
A determination by the Commissioner that a claimant is not disabled must be upheld if it is supported by substantial evidence and comports with applicable legal standards. See id. at § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Commissioner must apply the correct law and demonstrate that he has done so. While the court reviews the Commissioner's decision with deference to the factual findings, no such deference is given to the legal conclusions. Keeton v. Dep't of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)).
It is, moreover, the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971). Similarly, it is the responsibility of the Commissioner to draw inferences from the evidence, and those inferences are not to be overturned if they are supported by substantial evidence. Celebrezze v. O'Brient, 323 F.2d 989 (5th Cir. 1963). Therefore, in determining whether the Commissioner's decision is supported by substantial evidence, the court is not to re-weigh the evidence, but is limited to determining whether the record, as a whole, contains sufficient evidence to permit a reasonable mind to conclude that the claimant is not disabled. Miles, 84 F.3d at 1400; Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983).
The scope of review is limited to determining whether the findings of the Commissioner are supported by substantial evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002); McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988).
The Plaintiff demands a "remand and reversal with an immediate award of benefits" on a number of grounds including that he was denied due process and equal protection and because the ALJ failed to give proper weight to the opinions of certain doctors, recognize impairments, apply SSR 96-8p, find that Plaintiff's condition met a listing, and employ a hypothetical question that was supported by substantial evidence. (Doc. 15). For the reasons set forth below, I conclude that Plaintiff is entitled to relief on his first two claims such that a remand for further consideration is warranted.
By his first claim, Plaintiff urges the denial of due process and equal protection
In response, the Commissioner concedes that the ALJ and Appeals Council erred in not providing Plaintiff with Dr. Pasach's report but urges that a remand is not warranted because he was not prejudiced by this error. More particularly, the Commissioner urges that because the doctor's opinion supported Plaintiff's claim of disability, it is unlikely that Plaintiff would have subpoenaed the doctor or cross-examined him, and even though Plaintiff was unable to address the ALJ's decision to give the doctor's opinion little weight, Plaintiff has the opportunity to do so before this court. In support, the Commissioner cites Graham v. Apfel, 129 F.3d 1420 (11th Cir. 1997) and National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759 (1969). (Doc. 16 at 5-6).
In this circuit, "[d]ue process is violated when a claimant is denied the opportunity to subpoena and cross-examine those who submit medical reports." Hudson, 755 F.2d at 784 (citations omitted); see Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981). Thus, where the ALJ has relied upon written reports submitted after the administrative hearing and the claimant is not afforded the opportunity to examine or challenge the reports and cross-examine the doctor prior to the ALJ's decision, there is a denial of due process which requires the decision be invalidated. Cowart, 662 F.2d at 737 (citing Gullo v. Califano, 609 F.2d 649, 650 (2d Cir.1979)). In Graham, the court stated that, "there must be a showing of prejudice before it is found that the claimant's right to due process has been violated to such a degree that the case must be remanded to the [Commissioner] for further development of the record." Graham, 129 F.3d at 1423. In considering whether a remand is required, the court should be guided by whether there are evidentiary gaps in the record that result in unfairness or clear prejudice. Id.
Upon consideration of the record and arguments presented, I conclude that there is a denial of due process that renders the decision invalid because the ALJ relied upon the post-hearing written report of Dr. Pasach and the Plaintiff was not afforded the opportunity to examine the report prior to the ALJ's decision. See Cowart, 662 F.2d at 737; but see James v. Barnhart, No. 05-16238, 2006 WL 995363, at *1 (11th Cir. Apr. 17, 2006). Undoubtedly, Dr. Pasach's report should have been provided to Plaintiff in the first instance by the ALJ and subsequently by the Appeals Council, and the Commissioner does not contend otherwise. As for resulting prejudice, I recognize that this case is not illustrative of typical prejudice, i.e., where the ALJ relies on a post-hearing report that directly contradicts the medical evidence that supports the plaintiff's claim and the plaintiff is not given an opportunity to examine the report or subpoena or cross examine the doctor. Nevertheless, and despite Plaintiff's vague demonstration of prejudice, I conclude there is clear prejudice and unfairness in that the Plaintiff was not given an opportunity to examine the report before the ALJ's decision.
Plaintiff next argues that the ALJ erred by failing to state the weight given to the opinions of Drs. Freid, Dee, McGregor and Cervantes and those from Mr. Conti, a mental health counselor. And, although some indication was given by the ALJ for the weight afforded the evidence from Drs. Morgan, Urso, Henley, and Pasach, as well as the state agency doctors, Plaintiff contends that evidence was not properly assessed. Thus, as for Dr. Morgan, Plaintiff urges that the ALJ's statement of according his opinion "some weight" is insufficient. As for Dr. Urso, Plaintiff maintains that, contrary to the ALJ's finding, the doctor's opinion is supported by objective medical findings by the doctor that Plaintiff had a history of a fractured T-12 vertebra that resulted in chronic back pain and peripheral neuropathy in the legs. Plaintiff also urges that there is no conclusive evidence to counter Dr. Urso's opinion. Because the ALJ did not properly refute this opinion, Plaintiff urges that Dr. Urso's opinions must be accepted as true and thus benefits should be awarded. As for Dr. Henley's opinion, Plaintiff urges it too was not properly considered, and as for Dr. Pasach's opinion, the ALJ failed to provide adequate reasons to discount it. Additionally, Plaintiff contends that the ALJ did not develop a full and fair record given Dr. Henley's opinion that Plaintiff should have further psychiatric evaluation and Dr. Pasach's opinion that it would be appropriate to have Plaintiff reevaluated to rule out spinal cord injury or spinal stenosis. (Doc. 15 at 3-7).
In response, the Commissioner urges that given the ALJ's discussion of the evidence from Drs. Freid, Dee, McGregor, and Cervantes and from Mr. Conti, it is readily apparent that he implicitly gave great weight to this evidence, which was consistent with the ALJ's own findings and generally supported the ALJ's conclusions. Further, the Commissioner urges that the ALJ appropriately gave little weight to the opinion of Dr. Urso because it was unsupported by the objective medical evidence. While Plaintiff had an injury to his T-12 vertebrae in 1990 and earlier head and neck injuries in the mid-eighties, he worked until 1998 and thus his injuries could not have limited Plaintiff to the extent found by this doctor. The Commissioner also notes that Dr. Urso's opinion conflicted with the opinions of consulting examiners Drs. Morgan and McGregor. Regarding Dr. Pasach's opinion, the Commissioner urges that the ALJ appropriately accorded it little weight because it was both internally inconsistent and inconsistent with the reports from Drs. Morgan and McGregor. As for Dr. Henley, the Commissioner contends that it was reasonable for the ALJ to discount her opinions as well given that she questioned her ability to assess Plaintiff. Finally, the Commissioner urges that the record, which included evidence from at least eight doctors and a mental health counselor, was adequate to permit a decision without further development. (Doc. 16 at 7-13).
In this case the pertinent period under consideration is from Plaintiff's alleged onset date in May 1998 through the date of decision in March 2010. Although Plaintiff was only insured through December 2003, the evidence dated thereafter is pertinent to his claim for SSI payments. Despite the almost twelve-year treatment period and the lengthy procedural history of this case, the medical and psychological records are somewhat sparse. The mental health record consists of: (1) four visits to mental health counselor Anthony Conti in 1998 and a mental residual functional capacity assessment completed by him in March 2000;
In addressing the same, the ALJ discounted Dr. Urso's opinion that Plaintiff was permanently disabled because such an opinion is a finding of fact reserved to the Commissioner. As for Dr. Urso's opinion on Plaintiff's physical limitations, the ALJ gave the opinion "little weight." According to the ALJ, Dr. Urso "did not reference specific objective medical findings to support his opinion," and the doctor's "hand written notes were mostly concerned with medication control and there was little to no mention of any objective findings, . . . [and there] was no evidence of a physical examination." (R. 559). The ALJ also accorded "little weight" to Dr. Pasach's opinions on Plaintiff's employability and functional capacity. In particular, the ALJ found that Dr. Pasach's opinions were based more on Plaintiff's subjective reports than on objective findings, and his opinion on Plaintiff's functional capacity was inconsistent with his statement that Plaintiff could shop and travel without assistance, walk a block at a reasonable pace, and had a normal gait and was able to walk on his heels and toes during the examination. (R. 559). As for Dr. Henley, the ALJ accorded "little weight" to her opinion on Plaintiff's mental capacity because "she indicated that the claimant was likely exaggerating his symptoms and that the results of the evaluation were questionable and the test results were invalid." (R. 555). The ALJ accorded "some weight" to Dr. Morgan's opinion that Plaintiff had no physical limitations. The ALJ gave "great weight" to the opinions rendered in 2002 by the state agency reviewers (one a physician and the other a "single decision maker") and the state agency psychologist, as their opinions were consistent with the objective evidence of record. (R. 560).
The ALJ must state with particularity the weight given different medical opinions and the reasons for the weight given, and failure to do so is reversible error. Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987). When considering a treating physician's opinions, the ALJ must ordinarily give substantial or considerable weight to such testimony unless good cause is shown to the contrary. Phillips v. Barnhart, 357 F.3d 1232, 1240 (11th Cir. 2004); Lewis v. Callahan, 125 F.3d 1436,1440 (11th Cir. 1997). Good cause for rejecting a treating source's opinion may be found where the treating sources's opinion was not bolstered by the evidence, the evidence supported a contrary finding, or the treating source's opinion was conclusory or inconsistent with his or her own medical record. Phillips, 357 F.3d at 1240-41 (citing Lewis, 125 F.3d at 1440); Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987). As for examining doctors, their opinions typically are entitled to more weight than the opinions of nonexamining doctors. Broughton v. Heckler, 776 F.2d 960, 961-62 (11th Cir. 1985); 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). And, the reports of nonexamining, reviewing physicians, when contrary to those of examining physicians, are entitled to little weight, and standing alone do not constitute substantial evidence on which to base an administrative decision. See Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir.1988) (quoting Sharfarz, 825 F.2d at 280). However, an ALJ may rely on opinions of nonexamining sources when they do not conflict with those of examining sources. See Edwards v. Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991).
Upon thorough consideration of the medical and psychological record, I find that the ALJ erred in considering the same. First, with respect to the opinions of Drs. Freid, Dee, McGregor, and Cervantes, as well as the opinion of Mr. Conti, Plaintiff is correct that the ALJ did not specifically state the weight accorded their opinions. See (R. 553-55). The ALJ's failure to do so is reversible error. See Sharfarz, 825 F.2d at 279. I cannot agree with the Commissioner's assertion that the ALJ's decision makes clear that he gave great weight to this evidence. In particular, while the ALJ noted the mental tasks that Mr. Conti believed Plaintiff could perform (R. 553-54), he did not address the seven moderate limitations identified by Mr. Conti or the counselor's assessment of anxiety. Although the ALJ fairly recounted Dr. Freid's report (R. 553), he did not indicate why he chose not to credit the psychologist's diagnosis of generalized anxiety disorder. Similarly, while the ALJ fairly recounted Dr. Dee's evaluation (R. 554), he did not mention that the psychologist recommended further evaluation for estimation of intellectual capacity and neuropsychological screening (R. 439). Likewise, although the ALJ acknowledged Dr. Cervantes' opinion that Plaintiff's back pain had not been adequately diagnosed and treated (R. 555), he did not mention that the doctor also opined that Plaintiff needed a MRI to further evaluate his back and should see a psychiatrist (R. 506). As for Dr. Morgan, given the ALJ's determination of Plaintiff's functional capacity, it is unclear how the ALJ could have accorded "some weight" to Dr. Morgan's opinion that Plaintiff essentially had no limitations at all. And, although not addressed by Plaintiff, I note that while the ALJ accorded great weight, i.e., adopted, the opinion of one of the state agency psychologists (R. 560), he does not discuss the report from the other state agency psychologist or state the weight accorded that opinion.
I am more troubled by the ALJ's consideration of the opinions of Drs. Pasach, Urso, and Henley and conclude the ALJ's review of the findings and opinions from these doctors was insufficient such that a remand is warranted. As for Dr. Henley, her opinion may be fairly read one of two ways, one of which is that Plaintiff had extreme and marked limitations despite the indications of invalid test results and possible malingering, and the other of which is as the ALJ read it, that her functional assessment was not reliable because of the test results and possible malingering. Without a clear indication as to the appropriate reading of the opinion, I conclude that the ALJ was duty-bound to clarify this before adopting the latter reading. See 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) (directing ALJ to recontact a claimant's medical source where the evidence received from the source is inadequate, that is, if it contains a conflict or ambiguity that must be resolved).
While the ALJ clearly could discount the opinions of Drs. Urso and Pasach that Plaintiff could not work or was disabled,
Significantly, Dr. Pasach and Dr. Urso are the only doctors that examined Plaintiff from 2005 forward and their opinions are not inconsistent. And, as for Dr. Urso, he was the only treating doctor of record. Under the applicable standard, the ALJ was obliged to weigh his medical opinion based on the (1) length of the treatment relationship and the frequency of examination; (2) nature and extent of the treatment relationship;( 3) medical evidence supporting the opinion; (4) consistency with the record as a whole; (5) specialization in the medical issues at issue; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). By my consideration, given Dr. Urso's long-term care, the ALJ's statement that he gave Dr. Urso's functional assessment "little weight" because the doctor did not reference specific objective findings to support his opinion is insufficient in light of the objective evidence that was revealed in this record.
Further, while not argued by Plaintiff, I must note that the above errors are compounded by the fact that the ALJ determined Plaintiff's mental and physical functional capacity on the basis of the reports rendered by nonexamining doctors in 2002 (R. 560)
In light of the findings above, Plaintiff's remaining claims, i.e., his third, fourth, fifth, and sixth allegations of error (Doc. 15 at 8-11), need not be addressed. See Jackson v. Bowen, 801 F.2d 1291, 1294 n. 2 (11th Cir. 1986) (stating that where remand is required, it may be unnecessary to review other issues raised).
For the foregoing reasons, the decision of the Commissioner of the United States Social Security Administration is not supported by substantial evidence or is not in accordance with the correct legal standards, and I recommend that it be reversed and remanded for further proceedings before the Commissioner consistent with this Report and Recommendation. I further recommend that the Clerk be directed to enter Judgment in favor of the Plaintiff and to close the case, and the matter of fees and costs shall be addressed upon further pleadings.
