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Federal Social Security Brief: Appeals Council Disability Denial (Brief 1, p 3)

Disabilities: Arthritis, Diabetes, and Hypertension

Federal Social Security Brief: Appeals Council Disability Denial
Federal Magistrate Judge: Frank J. Lynch, Jr.
United States District Court: Eleventh Circut, Southern District of Florida

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Issues

1. The ALJ, in finding Claimant not disabled, gave great weight to the opinion of a consultative examiner who examined Claimant post-Hearing, yet did not provide Claimant's representative with a copy of the Report of the Consultative Examiner and did not allow Claimant's counsel an opportunity to respond to the allegations of the Consultative Examiner, violating Claimant's Due Process Rights.

2. The ALJ erred by not requiring the testimony of a Vocational Expert at the Hearing, although in his Decision finding Claimant not disabled, he relied upon the report of the post-Hearing consultative examiner who found Claimant limited in his ability to climb stairs and ramps, climb ladders or scaffolds, balance, stoop, kneel, crouch, crawl, work at unprotected heights, work around moving mechanical parts, and operate a motor vehicle.

Statement of the Facts

Claimant was treated by Dr. Ellowitz from at least July 1, 2004 when he complained of pain in the left foot and ankle, pain and swelling in the right ankle and wrist. Upon exam Dr. Ellowitz noted swelling, numbness and tingling and particularly noted the right wrist was swollen and was severely tender to palpation. Claimant had diminished ROM and also severe pain. He noted the right knee showed effusion with guarded ROM, and diagnosed migratory arthritis (T98-99). By the end of July Claimant told Dr. Ellowitz that he was having a lot of pain complaints and said he was unable to lift, carry or write with the right hand because of swelling. (T97). (Claimant is right-hand dominant (T98). Dr. Ellowitz diagnosed severe de Quervain's tendonitis and sent Claimant to hand therapy for therapy and a brace, prescribing Bextra for anti-inflammatory purposes (T97). By September 2004 Dr. Ellowitz noted Claimant's persistent problems with his right wrist and left knee, which had gotten worse. Dr. Ellowitz noted Claimant tried to work, but his left knee swelled up on him (T96). Examination showed exquisite jointline tenderness medially in the left knee. Diagnosis was internal derangement left knee and deQuervain's in the right wrist, slowly improving (T96).

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