Report & Recommendation on Plaintiff's Motion for Summary Judgement Federal Magistrate Judge: Frank J. Lynch, Jr. United States District Court: Eleventh Circut, Southern District of Florida
The Plaintiff's objection to Dr. Rabinowitz' report is that it was prepared after the hearing and without any notice to his counsel. He contends that the ALJ's reliance thereon, without an opportunity to respond, amounted to a violation of his procedural due process rights, and this Court agrees. To begin with the Commissioner does not explain why he sent the Plaintiff to the examination after the hearing nor why he left his counsel uniformed. Indeed the Commissioner does not even mention what the policy is for this situation, although case law suggests that the policy is at least to inform counsel of the newly gathered evidence with an opportunity to respond. See Leik v. Barnhart, 296 F.Supp.2d 1345, 1351, n.4 (M.D. Fla. 2003). The Commissioner does point out that the Plaintiff, himself, obviously knew of the second consultative examination, but this does not explain why no notice was given to the person representing the Plaintiff before the Commissioner.
The Commissioner argues further that no prejudice resulted. To a certain extent the Commissioner is correct that Dr. Rabinowitz's observations of mild functional loss are similar to Dr. Almahameed's and are overall consistent with the greater medical record. The ALJ did not rely on Dr. Rabinowitz' report for the credibility analysis, however. Instead he relied on Dr. Rabinowitz' RFC ratings in assessing the Plaintiff's work ability. In this regard Dr. Rabinowitz' report does present evidence that is both new and dissimilar to the greater record. Even the non-medical agency advisor rated the Plaintiff capable of lesser light exertional work. Moreover Dr. Rabinowitz' opinion of medium exertional work stands in contrast to what the medical record, e.g., the left knee MRI, reasonably might suggest. In short the ALJ based his RFC assessment entirely on the post hearing evidence, evidence which departs from the pre-hearing record in some important respects. That is not to say the Plaintiff cannot perform the demands of medium exertional work. Rather the point is that the circumstances warranted giving the Plaintiff, through his counsel, the opportunity to review the new evidence and to address it before basing the RFC assessment on it. See Demenech v. Sec'y, Dep't of H.H.S., 913 F.2d 882, 884-85 (11th Cir. 1990) and Leik, 296 F.Supp.2d at 1350-51. Continue to next page Return to Case Results Contact us for a FREE evaluation of your case
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