FEDERAL REMAND: ALJ Failed to Provide Notice of New Medical Evidence to Plaintiff's Representative (Federal Case 1, p. 9)

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This omission calls the soundness of the RFC assessment into doubt. Without Dr. Rabinowitz' report, it becomes an open question whether the record still supports the RFC assessment for medium work. That, in turn, calls the soundness of the vocational analysis into doubt, namely, whether the Plaintiff is able to return to his past relevant work as an assistant auto parts store manager. Further exacerbating this shortcoming is the fact that the ALJ did not state what the exertional demands of the Plaintiff's past work are. If the job generally is performed at the medium exertional level - a reasonable possibly in light of the need to handle auto parts then Dr. Rabinowitz' report is of critical importance.

CONCLUSION

The ALJ discounted the Plaintiff's allegations that his various ailments were fully disabling, and to this extent, the ALJ's analysis enjoys record support. However, with respect to the remainder of his analysis, this Court cannot reach the same conclusion. The remainder of the analysis depends upon a consultative report that was prepared after the hearing and without notice to the Plaintiff's representative. This omission prejudiced the Plaintiff not only because the new evidence was critical to the ALJ's conclusion but because it departed from, i.e., was not simply repetitive of, the pre-hearing evidence. Therefore the decision should be reversed and remanded to the Commissioner. Upon remand the Commissioner shall complete the evidentiary record and then hold a hearing on that record.

ACCORDINGLY this Court recommends to the District Court that the Plaintiff's Motion for Summary Judgment be GRANTED and that the ALJ's decision be REVERSED and REMANDED for a new hearing, consistent with the above instructions.

The parties shall have ten (10) days from the date of this Report and Recommendation within which to file objections, if any, with the Honorable Donald M. Middlebrooks, the United States District Judge assigned to this case.

DONE AND SUBMITTED in Chambers at Fort Pierce, Florida, this 14^th day of January, 2009.

Judge Frank J. Lynch, Jr.

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