Cryder v. Commissioner of Social Security
ORDER adopting 16 REPORT AND RECOMMENDATIONS - re 15 Memorandum social security - defendant filed by Christina Cryder, Commissioner of Social Security. The Commissioner's final decision in this case is REVERSED and REMANDED for further proceedings consistent with this Order. The Clerk is directed to enter judgment accordingly and close this case. Signed by Judge Carlos E. Mendoza on 8/7/2017. (DJD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:16-cv-00605-41TBS
COMMISSIONER OF SOCIAL
THIS CAUSE is before the Court on the Complaint (Doc. 1) filed by Plaintiff Christina
Cryder pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), which seeks judicial review of the
Commission of the Social Security Administration’s (“Commissioner”) decision denying
Plaintiff’s application for social security income (“SSI”) payments. On May 1, 2017, Magistrate
Doc. 16), where he recommends that the Commissioner’s final decision be reversed and remanded
for further proceedings. The Commissioner filed an Objection to the United States Magistrate
Judge’s Report and Recommendation (“Objection,” Doc. 17), to which Plaintiff filed a Response
to Defendant’s Objections (“Response,” Doc. 18). After an independent de novo review of the
record, the R&R will be adopted.
Pursuant to 28 U.S.C. § 636(b)(1), when a party makes a timely objection, the Court shall
review de novo any portions of a magistrate judge’s report and recommendation concerning
specific proposed findings or recommendations to which an objection is made. See also Fed. R.
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Civ. P. 72(b)(3). De novo review “require[s] independent consideration of factual issues based on
the record.” Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990) (per
curiam). The district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
After a de novo review of the record, the Court agrees with Magistrate Judge Smith’s wellreasoned analysis. While “the Appeals Council is not required to make specific findings of fact
when it denies review,” it must “‘consider . . . additional evidence’ that is new, material, and
chronologically relevant.” Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847, 852 (11th
Cir. 2015) (citing 20 C.F.R. § 416.1470(b)). The subject questionnaire is indisputably “new”
evidence, as it came into existence after the ALJ issued her decision. The questionnaire is
“material” because it is a medical opinion that corroborates Plaintiff’s subjective complaints and
limitations. As such, there is a reasonable possibility that it would change the outcome of the
administrative decision. Lastly, the questionnaire is chronologically relevant because it relates
back to the period between Plaintiff’s alleged onset date of disability and the ALJ’s decision. The
Appeals Council was therefore required to consider the questionnaire.
It is apparent that the Appeals Council did not consider the questionnaire. In fact, an
examination of the Appeals Council’s decision reveals that it concluded that the questionnaire was
not chronologically relevant to Plaintiff’s application for benefits. (See R. on Appeal, Doc. 10-2,
at 3). However, this conclusion is erroneous because, in the questionnaire, Dr. Rusiecki explicitly
opines that Plaintiff’s limitations and impairments “existed since August 2012.” (See id. at 17).
The Commissioner maintains that any error the Appeals Council may have made is harmless
because “nothing in the treatment records from Outreach Community Care Network, which
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evidence examinations from May 2013 through July 2014, support the December 2014 opinion
regarding Plaintiff’s allegedly disabling limitations dating back to August 2012.” (Doc. 17 at 2).
However, the Court may not accept the Commissioner’s impermissible post hoc rationalizations
for the Appeals Council’s decision to deny Plaintiff’s request for review. See Baker v. Comm’r of
Soc. Sec., 384 F. App’x 893, 896 (11th Cir. 2010) (per curiam) (“[A] court may not accept appellate
counsel’s post hoc rationalizations for agency actions. If an action is to be upheld, it must be upheld
on the same bases articulated in the agency’s order.” (internal citation omitted)).
The Appeals Council did not articulate any evaluation of the questionnaire, therefore, to
determine whether its decision was harmless, the Court would necessarily have to engage in
prohibited activities by deciding facts anew, reweighing the evidence, and substituting its own
decision for that of the Commissioner. Accordingly, the Court finds that the case should be
reversed and remanded to the Commissioner for evaluation of the entire record. See Washington
v. Soc. Sec. Admin., Comm’r, 806 F.3d 1317, 1321 (11th Cir. 2015) (per curiam) (“[W]hen the
Appeals Council erroneously refuses to consider evidence, it commits legal error and remand is
Therefore, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 16) is ADOPTED and CONFIRMED and
made part of this Order.
2. The Commissioner’s final decision in this case is REVERSED and REMANDED
for further proceedings consistent with this Order.
3. The Clerk is directed to enter judgment accordingly and close this case.
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4. If Plaintiff ultimately prevails in this case upon remand to the Social Security
Administration, any motion for attorney’s fees under 42 U.S.C. § 406(b) must be
filed within thirty days of the date of the Commissioner’s letter is sent to Plaintiff’s
counsel of record at the conclusion of the Agency’s past due benefit calculation
stating the amount withheld for attorney’s fees. Any fee application must be filed
within the parameters set forth by the Order entered in In Re: Procedures for
Applying for Attorney’s Fees, No. 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 14, 2012).
DONE and ORDERED in Orlando, Florida on August 7, 2017.
Copies furnished to:
Counsel of Record
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