Pooley v. Commissioner of Social Security
Filing
29
MEMORANDUM AND OPINION reversing the Commissioner's decision and remanding with instructions. Signed by Magistrate Judge Monte C. Richardson on 3/22/2017. (MEH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KAREN POOLEY,
Plaintiff,
v.
CASE NO. 8:16-cv-399-T-MCR
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.
________________________________/
MEMORANDUM OPINION AND ORDER1
THIS CAUSE is before the Court on Plaintiff’s appeal of an administrative
decision denying her application for Supplemental Security Income (“SSI”).
Plaintiff claims that she became disabled on July 30, 2008. (Tr. 122.) The
administrative law judge held a hearing on April 2, 2012 (Tr. 26-43), and
subsequently issued a decision on June 25, 2012, finding Plaintiff not disabled.
(Tr. 10-26.)
Plaintiff then filed a civil action in the United States District Court for the
Middle District of Florida. Upon Plaintiff’s filing of an unopposed motion to
remand, the Court remanded Plaintiff’s case to the agency for consideration of
additional issues. (Tr. 517-28.) A different administrative law judge (“ALJ”) held
a second hearing on September 30, 2015 (Tr. 454-88), at which Plaintiff was
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The parties have consented to the exercise of jurisdiction by a United States
Magistrate Judge. (Doc. 16.)
represented by an attorney. The ALJ issued a final decision on November 27,
2015, finding Plaintiff not disabled. (Tr. 435-47.) The ALJ, in reaching that
decision, found that Plaintiff had the following severe impairments: “fibromyalgia,
chronic low back strain/sprain, diabetes mellitus, and diabetic retinopathy.” (Tr.
440.) The ALJ also found that Plaintiff had the residual functional capacity
(“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b) with
limitations. (Tr. 441-42.)
Plaintiff is appealing the Commissioner’s decision that she was not
disabled from July 30, 2008, the alleged onset date, through November 27, 2015,
the date of the decision. Plaintiff has exhausted her available administrative
remedies and the case is properly before the Court. The Court has reviewed the
record, the briefs, and the applicable law. For the reasons stated herein, the
Commissioner’s decision is REVERSED AND REMANDED.
I.
Standard
The scope of this Court’s review is limited to determining whether the
Commissioner applied the correct legal standards, McRoberts v. Bowen, 841
F.2d 1077, 1080 (11th Cir. 1988), and whether the Commissioner’s findings are
supported by substantial evidence, Richardson v. Perales, 402 U.S. 389, 390
(1971). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a
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conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir.
2004). Where the Commissioner’s decision is supported by substantial evidence,
the district court will affirm, even if the reviewer would have reached a contrary
result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th
Cir. 1991). The district court must view the evidence as a whole, taking into
account evidence favorable as well as unfavorable to the decision. Foote v.
Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); accord Lowery v. Sullivan, 979 F.2d
835, 837 (11th Cir. 1992) (stating the court must scrutinize the entire record to
determine the reasonableness of the Commissioner’s factual findings).
II.
Discussion
Plaintiff argues three general points on appeal. First, Plaintiff argues that
the ALJ improperly rejected the opinions of her treating physicians, Vipul Kabaria,
M.D. and Philip Corrao, M.D. Plaintiff contends that the ALJ failed to articulate
good cause for discounting their opinions. Further, Plaintiff argues that the ALJ
erred by affording great weight to the non-examining physician, Charles Plotz,
M.D. Second, Plaintiff contends that the ALJ erred by failing to properly evaluate
her credibility and subjective complaints. Third, Plaintiff argues that the ALJ
failed to pose a comprehensive hypothetical question to the vocational expert
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(“VE”) which accurately described all of Plaintiff’s impairments.
The Commissioner argues that the ALJ’s evaluation of the medical
opinions of record is clearly articulated and supported by substantial evidence.
The Commissioner further contends that the ALJ properly evaluated Plaintiff’s
subjective complaints and found Plaintiff was not entirely credible. Finally, the
Commissioner argues that the hypothetical question posed to the VE was proper.
A.
Standard for Evaluating Opinion Evidence
The ALJ is required to consider all the evidence in the record when making
a disability determination. See 20 C.F.R. § 416.920(a)(3). With regard to
medical opinion evidence, “the ALJ must state with particularity the weight given
to different medical opinions and the reasons therefor.” Winschel v. Comm’r of
Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011). However, an ALJ need not
"specifically refer to every piece of evidence in his decision, so long as the ALJ's
decision . . . is not a broad rejection which is 'not enough to enable [the reviewing
Court] to conclude that [the ALJ] considered [the Plaintiff's] medical condition as a
whole.'" Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (quoting Foote v.
Chater, 67 F.3d 1553, 1561 (11th Cir. 1995)).
Substantial weight must be given to a treating physician’s opinion unless
there is good cause to do otherwise. See Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997). “‘[G]ood cause’ exists when the: (1) treating physician’s
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opinion was not bolstered by the evidence; (2) evidence supported a contrary
finding; or (3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1240-41
(11th Cir. 2004). When a treating physician’s opinion does not warrant controlling
weight, the ALJ must nevertheless weigh the medical opinion based on: (1) the
length of the treatment relationship and the frequency of examination, (2) the
nature and extent of the treatment relationship, (3) the medical evidence
supporting the opinion, (4) consistency of the medical opinion with the record as a
whole, (5) specialization in the medical issues at issue, and (6) any other factors
that tend to support or contradict the opinion. 20 C.F.R. § 416.927(c)(2)-(6).
Although a treating physician’s opinion is generally entitled to more weight
than a consulting physician’s opinion, see Wilson v. Heckler, 734 F.2d 513, 518
(11th Cir. 1984) (per curiam); 20 C.F.R. § 416.927(c)(2), “[t]he opinions of state
agency physicians” can outweigh the contrary opinion of a treating physician if
“that opinion has been properly discounted,” Cooper v. Astrue, No. 8:06-cv-1863T-27TGW, 2008 WL 649244, at *3 (M.D. Fla. Mar. 10, 2008). Further, “the ALJ
may reject any medical opinion if the evidence supports a contrary finding.”
Wainwright v. Comm’r of Soc. Sec. Admin., No. 06-15638, 2007 WL 708971, at
*2 (11th Cir. Mar. 9, 2007) (per curiam); see also Sryock v. Heckler, 764 F.2d
834, 835 (11th Cir. 1985) (per curiam) (same).
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“The ALJ is required to consider the opinions of non-examining state
agency medical and psychological consultants because they ‘are highly qualified
physicians and psychologists, who are also experts in Social Security disability
evaluation.’” Milner v. Barnhart, 275 F. App’x 947, 948 (11th Cir. May 2, 2008)
(per curiam); see also SSR 96-6p (stating that the ALJ must treat the findings of
State agency medical consultants as expert opinion evidence of non-examining
sources). While the ALJ is not bound by the findings of non-examining
physicians, the ALJ may not ignore these opinions and must explain the weight
given to them in his decision. SSR 96-6p.
B.
The ALJ’s Decision
The ALJ found that Plaintiff had severe impairments, including
fibromyalgia, chronic low back strain/sprain, diabetes mellitus, and diabetic
retinopathy. (Tr. 440.) The ALJ then found that Plaintiff did not have any
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 441.) At step four2, the ALJ found, in relevant part, that Plaintiff
had the RFC to:
lift and carry 20 pounds occasionally and 10 pounds frequently;
2
A five-step sequential evaluation process has been established by the Social
Security Administration in the Social Security Act, which is used to determine whether
an individual is disabled or not (20 C.F.R. § 416.920(a)).
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stand and walk for 6 hours in an 8 hour day up to thirty minutes
at a time and sit for a total of 6 hours in an 8 hour day, up to 30
minutes at a time. The claimant can frequently climb ramps and
stairs and can never climb ladders, ropes, or scaffolds. The
claimant can frequently balance, stoop, kneel, crouch, and crawl.
The claimant cannot read fine print. The claimant must avoid
concentrated exposure to temperature extremes and hazards
such as unprotected heights and dangerous or moving
machinery.
(T. 441-42.) In making this finding, the ALJ discussed Plaintiff’s treatment notes,
medical records, the vocational expert’s testimony, medical opinions, and
testimony from Plaintiff. (Tr. 440-47.)
C.
Analysis
Plaintiff initially argues that the ALJ erred by improperly discounting the
opinions of Dr. Kabaria, Plaintiff’s treating physician. Specifically, Plaintiff
contends that the ALJ failed to articulate good cause for discounting the treating
opinions.
On November 6, 2005, Vipul Kabaria, M.D., began treating Plaintiff. Dr.
Kabaria treated Plaintiff for almost ten years, with the last noted treatment
occurring on September 28, 2015. (Tr. 413-14.) On November 11, 2011, Dr.
Kabaria completed a Physical Residual Functional Capacity Questionnaire (the
“First Questionnaire”), diagnosing Plaintiff with fibromyalgia. (Tr. 395-99.) The
initial question in the First Questionnaire requested the Plaintiff’s “date of onset,”
to which Dr. Kabaria responded, “May 1999.” (Tr. 395.) Further, Dr. Kabaria
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opined that Plaintiff can stand/walk for less than two hours in an eight-hour
workday (Tr. 397), will need to take unscheduled breaks during an eight-hour
workday “[a]s needed per intense pain” (id.), is likely to have “good days” and
“bad days” (Tr. 399), and is likely to be absent from work “more than four times a
month” (id).
On September 2, 2015, Dr. Kabaria completed a Fibromyalgia Impairment
Questionnaire (the “Second Questionnaire”), diagnosing Plaintiff with, inter alia,
fibromyalgia. (Tr. 675.) Dr. Kabaria’s prognosis for Plaintiff was “fair to poor.”
(Id.) The positive clinical findings which supported his diagnosis were:
(1) painful activity range of motion at lumbar, cervical and
multiple joints; (2) paraspinal spasm and trigger points at
multiple sites along lumbar, cervical and thoracic spine; and (3)
multiple trigger points with tenderness to palpitation over
shoulder, hip, knee, and extremities.
(Tr. 675-76.) Dr. Kabaria opined that Plaintiff could sit for about 0-1 hour,
stand/walk for about 0-1 hour, and would need to get up and move around after
sitting 1-2 times per hour. (Tr. 678.) Additionally, Dr. Kabaria opined Plaintiff
would need 2-3 unscheduled breaks an hour for 10-15 minutes each, and that
she would have “good days and bad days,” which would make her absent from
work more than three times per month. (Tr. 679.) Further, he stated she could
only lift or carry 0-5 pounds frequently and up to 20 pounds occasionally. (Tr.
678.) The final question on the Second Questionnaire inquired, “[i]n your best
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medical opinion, what is the earliest date that the description of symptoms and
limitations in this questionnaire applies,” to which Dr. Kabaria responded “since
1999.” (Tr. 680.)
Upon consideration, the ALJ afforded “little weight” to the opinions of Dr.
Kabaria. (Tr. 444.) The first reason that the ALJ provided in discounting Dr.
Kabaria’s opinions was that Dr. Kabaria’s opinions as a whole were inconsistent
with his response to the final question listed in the Second Questionnaire–that
1999 was the earliest date the symptoms and limitations of Plaintiff’s fibromyalgia
applied, when Plaintiff performed substantial gainful activity (“SGA”). Specifically,
the ALJ stated:
With regard to Dr. Kabaria’s opinions, it is noted from the outset
that in [Dr. Kabaria’s Second Questionnaire] dated September 2,
2015, he suggests that the earliest date that the description of
symptoms and limitations in the [Second Questionnaire] applies
is 1999, almost a decade before the claimant alleges disability
and during a time when claimant was engaging in [SGA]. . . Thus
from the outset, this major conflict between Dr. Kabaria’s opinion
and the undisputed reality, severely weakens Dr. Kabaria’s
credibility such that the undersigned gives little weight to both of
his opinions.
(Tr. 444.)
The Court finds this reason insufficient for rejecting Dr. Kabaria’s opinions
as a whole. First, without developing or discussing the record further on this
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point, the ALJ interpreted Dr. Kabaria’s answer to mean that Plaintiff’s
fibromyalgia, in its most developed and most debilitating form, existed since
1999. However, another reasonable interpretation of Dr. Kabaria’s response is
that Dr. Kabaria viewed 1999 as the date that any of the fibromyalgia symptoms
first appeared. Under this interpretation, Dr. Kabaria’s answer would not be
inconsistent with his medical opinions, as the ALJ claims.3 See, e.g., Nash v.
Colvin, No. 15CV50019, 2016 WL 4798957, at *6 (N.D. Ill. Sep. 14, 2016) (“[T]he
Court notes that the ALJ found a contradiction by placing much weight on [the
doctor’s] answer to one, arguably ambiguous question; namely: ‘In your opinion,
given the past medical records sent, what is the earliest date that the description
of symptoms and limitations in this questionnaire applies?’ [The doctor]
answered: ‘1998.’ The ALJ interpreted this answer to mean basically that
Plaintiff’s current condition, in its most advanced and most disabling form, existed
since 1998. But another equally reasonable interpretation (in fact, a more
reasonable interpretation) is that [the doctor] was merely stating that 1998 was
the first date that any of these symptoms, even in their most nascent form, first
3
The latter interpretation may be more reasonable in light of the record indicating
that Plaintiff was diagnosed with fibromyalgia in 1999. (Tr. 388 (indicating in Dr.
Corrao’s April 1, 2011 questionnaire that Plaintiff’s date of onset was May 1999), Tr.
395 (inquiring in the First Questionnaire presented to Dr. Kabaria as to Plaintiff’s “[d]ate
of [o]nset,” to which Dr. Kabaria responded, “May 1999”), Tr. 409 (discussing Plaintiff’s
fibromyalgia and stating, “[s]ince her diagnosis in May 1999 she has seen two
rheumatologists and five neurologists and a physician in California [for fibromyalgia]”),
413 (indicating in Dr. Kabaria's treating notes that Plaintiff had been suffering from
generalized body pain since 1999 and noting that Plaintiff was diagnosed with
fibromyalgia in May 1999).)
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appeared. Under this interpretation, there would not be an inconsistency with
plaintiff being able to work for a period until the problems progressively
worsened.”) (emphasis added) (internal citations omitted). The Court finds that
Dr. Kabaria’s “brief, unexplained answer to a single question on a form is not a
legitimate reason to discount [his] medical opinion[s] stemming from a multipleyear treating relationship.” Zinner v. Astrue, No. CV 10-09112 RZ, 2011 WL
6294337, at *2 (C.D. Cal. Dec. 16, 2011) (holding that the ALJ did not provide
specific and legitimate reasons to discredit the treating physician’s opinion based
on the physician’s single response to the same question at issue here).
Moreover, the ALJ criticized Dr. Kabaria’s response to the question
presented in the Second Questionnaire because Plaintiff was engaged in SGA in
1999. However, the record reflects that Plaintiff’s earnings dropped from
$34,911.37 in 1999 to $27,467.27 in 2000, then to $875.41 in 2001, and
eventually to $0.00 in 2002. (Tr. 638.) Plaintiff testified at the hearing that she
experienced a significant drop in pay "because of [] health issues.” (Tr. 463.)
Her testimony also reflects that she did not attempt to seek employment at
anytime after 2000-2001. (Tr. 463-64.) She indicated that it was “the fatigue, the
unreliability,” and ultimately “the fibromyalgia, the aches and pains every day,”
that prohibited her from continuing normal work. (Id.) When put into proper
context, a consecutive decline in earnings each year since 1999 is not
inconsistent with Dr. Kabaria’s opinion. See, e.g., Rodriguez v. Colvin, No. 2:1411
cv-1030-EFB, 2015 WL 5814005, at *6 (E.D. Cal. Sep. 30, 2015) (rejecting ALJ’s
decision to discredit treating physician’s opinions based on the inconsistency
between the treating physician’s opinion that the plaintiff’s symptoms and
limitations applied “since 2007” and the plaintiff performing SGA in 2007, where
record revealed a “significant drop in pay beginning in 2007," and where the
plaintiff testified that she attempted to perform work after 2007, but her
impairments prevented her from doing so).
The ALJ also provided the following reason for discounting Dr. Kabaria’s
opinions:
[M]ost if not all of the treatment records note minimal
improvement overall, yet the same medications were routinely
continued. The undersigned notes that in December 2009, the
claimant was prescribed MSIR 15 mg #120 [morphine], and the
most recent record indicates that the claimant was still
prescribed MSIR 15 mg #120 with minimal improvement. The
undersigned does note a few alterations to the claimant’s
medications in the interim. However, if an individual is as limited
as the claimant alleges, the undersigned finds it questionable
that an individual would continue with the same treatment
regimen for as long as the claimant if improvement were in deed
[sic] minimal as reported by the records. Furthermore, the
undersigned notes a very long history of treatment with Dr.
Kabaria despite the allegedly minimal improvement, and the
undersigned also finds this questionable.
(Tr. 442-43.) The ALJ’s explanation is insufficient in this regard. As Plaintiff
notes, the ALJ impermissibly substituted his own lay medical opinions for those of
the doctors by rejecting the treatment regimen prescribed by Plaintiff’s doctors.
See Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (holding that an
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ALJ may not substitute his opinion for that of a doctor). The ALJ is not a medical
doctor and failed to reference any valid basis for finding that Plaintiff’s treatment
regimen was “questionable.” As the ALJ here “substituted h[er] own hunch or
intuition for the diagnosis of a medical professional,” the ALJ erred in analyzing
Dr. Kabaria’s opinions. Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir.
1992).
Finally, the ALJ discounted Dr. Kabaria’s opinions because “the records
from Dr. Kabaria solely consist mostly of [Plaintiff’s] subjective reports,” which
“severely weakens Dr. Kabaria’s credibility.” (Tr. 444.) However, the Eleventh
Circuit recognizes that fibromyalgia "often lacks medical or laboratory signs, and
is generally diagnosed mostly on an individual's described symptoms," and that
the "hallmark" of fibromyalgia is therefore "a lack of objective evidence." Moore
v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam). Because of this,
the Eleventh Circuit has held that a claimant’s subjective complaints “are often
the only means of determining the severity of a patient’s condition and the
functional limitations caused thereby.” Somogy v. Comm’r of Soc. Sec., 366 F.
App’x. 56, 63-64 (11th Cir. 2010) (per curiam). With respect to fibromyalgia, a
claimant’s subjective complaints are therefore insufficient alone to support an
ALJ’s rejection of a treating physician’s opinion as to the claimant’s functional
limitations. See Green-Younger v. Barnhart, 335 F.3d 99, 105-08 (2d Cir. 2003)
(holding that because fibromyalgia is "a disease that eludes [objective]
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measurement," an ALJ errs when that ALJ discredits a treating physician's
opinion based upon lack of objective evidence). Because the ALJ failed to
articulate other valid reasons for discounting Dr. Kabaria’s opinions, the ALJ
cannot rely on Dr. Kabaria’s reference to Plaintiff’s subjective complaints to
discount his opinions. The ALJ erred in failing to articulate good cause for
discounting Dr. Kabaria’s opinions.
It is important to note that the ALJ here compounded such error by relying
on the flawed medical opinions of Charles Plotz, M.D., a non-examining physician
who completed responses to medical interrogatories (the “Report”). (Tr. 670-73.)
Although the ALJ stated Dr. Plotz “reviewed the medical evidence in its entirety,”
Dr. Plotz did not have access to the most recent opinions of Drs. Kabaria and
Corrao, as those opinions were not rendered until after Dr. Plotz’s July 18, 2015
Report. (Tr. 674-83, 684-710, 711-17, 718-39.)
More notably, however, Dr. Plotz mischaracterized the evidence that he did
review and made findings contrary to the record evidence. In his Report, Dr.
Plotz quoted Dr. Corrao’s first fibromyalgia questionnaire and opined that Plaintiff
has no significant problems doing daily activities because Plaintiff “is able to do a
days work [sic].” (Tr. 673.) Dr. Plotz quoted Dr. Corrao’s report out of context.
Dr. Corrao’s report actually states that “[Plaintiff] is able to do a days work [sic],
but needs recovery for 1-2 days after.” (Tr. 384 (emphasis added).)
Dr. Plotz also suggests that Plaintiff has an “addiction” to morphine since
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Plaintiff has been on it “for over 10 years.” (Tr. 673.) However, Dr. Plotz ignored
the record evidence, which indicates Plaintiff has been compliant with her
medications over the course of her treatments. (Tr. 673, 718-39, 674-83, 23973.)
Finally, without examining Plaintiff, Dr. Plotz found that Plaintiff “does not
have the fibromyalgia syndrome.” (Tr. 673.) This finding contradicts the record,
which shows that Plaintiff was diagnosed multiple times with fibromyalgia. (Tr.
354-57, 388-92, 409, 415-29.)
III.
Conclusion
For the forgoing reasons, the Court concludes that the ALJ improperly
evaluated the record medical opinions. Therefore, the Court finds that the ALJ’s
decision is not supported by substantial evidence. This issue is dispositive and,
therefore, it is unnecessary for the Court to address Plaintiff’s remaining
arguments. See, e.g., Alexander v. Comm’r of Soc. Sec., No. 8:13-cv-1602-TGJK, 2014 WL 4211311, at *3 n.3 (M.D. Fla. Aug. 26, 2014) (citing Diorio v.
Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (stating that on remand the ALJ must
reassess the entire record)). However, on remand the ALJ will be directed to
reconsider the opinions of Dr. Corrao and Plaintiff’s credibility, if necessary.
Accordingly, it is hereby ORDERED:
1.
The decision of the Commissioner is REVERSED pursuant to
sentence four of 42 U.S.C. § 405(g) and REMANDED to the Commissioner, with
instructions for the ALJ to: (a) reevaluate the record medical opinions and explain
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what weight is being accorded to those opinions, and the reasons therefor; (b) if
necessary, reconsider Plaintiff's credibility; (c) reconsider the RFC assessment, if
necessary, and (d) conduct any further proceedings deemed appropriate.
2.
The Clerk of Court is directed to enter judgment consistent with this
Order, and close the file.
3.
Plaintiff’s counsel is advised that, in the event benefits are awarded
on remand, any § 406(b) or § 1383(d)(2) fee application shall be filed within the
parameters set forth by the Order entered in Case No.: 6:12-124-Orl-22 (In re:
Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) &
1383(d)(2)). This Order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.
DONE AND ORDERED in Jacksonville, Florida, on March 22, 2017.
Copies to:
Counsel of Record
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