Curlett v. Commissioner of the Social Security Administration

Filing 39

ORDER RULING ON REPORT AND RECOMMENDATIONS for 33 Report and Recommendations, with the exception of Section II(B)(4) of the Report and Recommendation, the Court adopts the Report, the decision of the Commissioner is reversed and remanded pursuant to Sentence Four of 42 USC 405(g), for further action consistent with this Order. Signed by Honorable Richard M Gergel on 7/25/2012. (ydav, )

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Emmie F. Curlett,
Plaintiff,
vs.
Michael J. Astrue, Commissioner
of Social Security,
Defendant.

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Civil Action No. I :11-765-RMG

ORDER

Plaintiff has brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of
the final decision of the Commissioner of Social Security denying her disability insurance
benefits. In accord with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., this matter was
referred to a United States Magistrate Judge for pre-trial handling. The Magistrate Judge issued a
Report and Recommendation on June 28, 2012 recommending that the Commissioner's decision
be reversed and remanded. (Dkt. No. 33). The Commissioner has advised the Court that he does
not intend to file objections to the Report and Recommendation. (Dkt. No. 35).
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions of the Report and Recommendation to which specific objection is
made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the

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Magistrate Judge. 28 U.S.C. § 636(b)(1).
The Court has reviewed the well written Report and Recommendation of the Magistrate
Judge and finds that her findings and conclusions are well supported by the record and applicable
case law. Therefore, with the exception of Section II(8)(4), of the Report and Recommendation
(Dkt. No. 33 at 24-25), the Court adopts the Report and Recommendation ofthe Magistrate
Judge. l The decision ofthe Commissioner is hereby REVERSED and REMANDED, pursuant
to Sentence Four of 42 U.S.C. 405(g), for further action consistent with this Order.
AND IT IS SO ORDERED.

Ric ard Mark Gergel
United States District Judge
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Julyll':'2012
Charleston, South Carolina

1 Plaintiff submitted certain new and material medical evidence in support of her claim to
the Appeals Council, as is authorized by Social Security regulations. 20 C.F.R. § 404.968,
404.970(b). See, Record at 361-370. This newly submitted evidence, which was made part of
the record, included treatment notes from a treating specialist physician which conflicted with
other evidence in the record and the findings of the ALJ. Under the Fourth Circuit's recent
holding in Meyer v. Astrue, 662 F.3d 700, 707 (4th Cir. 2012), where new and material evidence
is offered for the first time to the Appeals Council and conflicts with other evidence "credited by
the ALJ", then remand is necessary for the fact finder to weigh the new evidence and to reconcile
it with other conflicting and supporting evidence in the record. Id Therefore, the failure of any
fact finder to weigh and reconcile the new and material evidence submitted to the Appeals
Council in this matter establishes a separate and independent basis for reversal and remand.

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