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Federal Social Security Brief: Appeals Council Disability Denial (Brief 1, p 10)

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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Arguement

The standard for review is whether the decision by the Administrative Law Judge is supported by substantial evidence and based upon proper legal standards. 42 U.S.C. §405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11^th Cir. 1982). The failure to apply correct legal standards or to provide sufficient basis for a determination that proper standards were applied is grounds for reversal. Lamb v. Bowen, 847 F.2d 698, 701 (11^th Cir. 1987).

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.

Due process is violated when a claimant is not given the opportunity to subpoena and cross-examine those who submit medical reports. Hudson v. Heckler, 755 F.2d 781, 784 (11^th Cir. 1985). The ALJ abuses his discretion and deprives a claimant of due process rights by not permitting the cross-examination of a post-hearing physician upon whose report the ALJ substantially relied upon in reaching his decision. Demenech v. Secretary of the Dep't of Health & Human Servs., 913 F.2d 882, 884-885 (11^th Cir. 1990).

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