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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61004-DIMITROULEAS/SNOW

MICHAEL CUMINALE,

Plaintiff,

vs.

ANDREW M. SAUL,

COMMISSIONER OF SOCIAL

SECURITY ADMINISTRATION,

Defendant.

_____________________________________/

ORDER APPROVING REPORT OF MAGISTRATE JUDGE; OVERRULING 

OBJECTIONS; REMANDING MATTER

THIS CAUSE is before the Court upon the Report and Recommendation of Magistrate 

Judge Snow (the “Report”) [DE 36], filed herein on October 15, 2021. The Court has conducted a 

de novo review of the Report [DE 36], has carefully considered Defendant’s Objections [DE 37],

Plaintiff’s Response to Defendant’s Objections [DE 38], and is otherwise fully advised in the 

premises.

I. BACKGROUND

The Plaintiff filed an application for disability benefits on September 23, 2015, alleging 

disability since September 10, 2015, as a result of back pain and other ailments. The application 

was denied initially and upon reconsideration. The Plaintiff then requested a hearing, which was 

held before Administrative Law Judge James Andres on November 6, 2017. The Administrative 

Law Judge (ALJ) found that the Plaintiff was not disabled within the meaning of the Social 

Security Act. The Appeals Council remanded the case to the ALJ for further proceedings. A 

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second administrative hearing was held before Judge Andres on April 15, 2019, after which the 

ALJ again found that the Plaintiff was not disabled. The Appeals Council denied the Plaintiff's 

request for review on March 24, 2020. Plaintiff then filed this action on May 21, 2020, seeking 

judicial review of the decision of the Commissioner. 

On June 14, 2021, Magistrate Judge Snow issued a Report and Recommendation, 

recommending that Plaintiff’s Amended Motion for Summary Judgment [DE 25] be denied and 

that Defendant’s Motion for Summary Judgment be granted. See [DE 28]. In her Report, 

Magistrate Judge Snow explained the reasons that the ALJ gave greater or lesser weight to 

different portions of the Plaintiff’s treating physicians’ opinions. See [DE 28]. Upon review of 

the record, the Court agreed with the reasoning, conclusions, and recommendations of the 

Magistrate Judge. See [DE 30]. 

However, as the Court noted in its September 7, 2021, Order, Plaintiff raised for the first 

time in this case – as Part II to his Objections to the Report and Recommendation – that Plaintiff’s

case should have been reassigned to a properly appointed ALJ under the Appointments Clause of 

the United States Constitution, relying on the recent United States Supreme Court decision in Carr 

v. Saul, 141 S. Ct. 1352 (2021), which he argues implicates his constitutional rights. See [DE’s 29, 

30]. Plaintiff contended that the interests of justice require that either this Court rule on this 

constitutional issue or that the case be recommitted to the Magistrate Judge with instructions to 

take further briefing on this issue. See [DE 29]. As this issue was not presented to the Magistrate 

Judge, had not been briefed, and had not been addressed by Defendant, the Court agreed with 

Plaintiff that the case should be recommitted to the Magistrate Judge with instructions to take 

further briefing on this issue. See [DE 30]. 

Accordingly, in its September 7, 2021 Order, the Court approved the Magistrate Judge’s 

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Report and Recommendation [DE 28]; overruled Plaintiff’s Objections [DE 29] as to Part I of the 

Objections, which addressed the Report and Recommendation and the underlying summary 

judgment motions; granted Defendant’s Motion for Summary Judgment [DE 21]; denied 

Plaintiff’s Amended Motion for Summary Judgment [DE 25]; and referred this case back to the 

Magistrate Judge with instructions to take further briefing and for a report and recommendation on 

the issue raised in Part II of Plaintiff’s Objections to the Report and Recommendation – that 

Plaintiff’s case should have been reassigned to a properly appointed ALJ under the Appointments 

Clause of the United States Constitution pursuant to Carr v. Saul, 141 S. Ct. 1352 (2021). See [DE

30]. Subsequently, Defendant filed his Response to the Plaintiff's Objections [DE 32] and 

Plaintiff filed a Reply [DE 35]. 

On October 15, 2021, Magistrate Judge Snow issued a Report and Recommendation, 

recommending that Plaintiff’s Motion for Summary Judgment be granted in part, that Defendant’s 

Motion for Summary Judgment be denied, and that this matter be remanded to the Commissioner 

for reassignment to a different ALJ. See [DE 36]. 

II. STANDARD OF REVIEW

A party seeking to challenge the findings in a report and recommendation of a United 

States Magistrate Judge must file “written objections which shall specifically identify the portions 

of the proposed findings and recommendation to which objection is made and the specific basis for 

objection.” Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (quoting Heath v. Jones, 

863 F.2d 815, 822 (11th Cir. 1989)). “It is critical that the objection be sufficiently specific and not 

a general objection to the report.” Macort, 208 F. App’x at 784 (citing Goney v. Clark, 749 F.2d 5, 

7 (3d Cir. 1984)). If a party makes a timely and specific objection to a finding in the report and 

recommendation, the district court must conduct a de novo review of the portions of the report to 

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which objection is made. Macort, 208 F. App’x at 783-84; see also 28 U.S.C. § 636(b)(1). The 

district court may accept, reject, or modify in whole or in part, the findings or recommendations 

made by the Magistrate Judge. Macort, 208 F. App’x at 784; 28 U.S.C. § 636(b)(1). Accordingly, 

the Court has undertaken a de novo review of the record and the Plaintiff’s objections.

III. DISCUSSION

The Magistrate Judge, after analyzing the parties’ arguments, recommends that the 

appropriate remedy in this case is that this matter be remanded to the Commissioner for 

reassignment to a different ALJ.. See [DE 36]. Defendant objects, arguing that the ALJ’s 

decision should be affirmed because at all times relevant to the ALJ’s July 16, 2019 decision, the 

ALJ had been properly appointed by the Commissioner of Social Security, and therefore, the fact 

that the ALJ was not properly appointed when Plaintiff previously appeared before that same ALJ 

in his 2017 original administrative hearing is not relevant, as the ALJ’s prior 2018 decision was 

vacated by the Appeals Council. See [DE 37]. The Court overrules Defendant’s Objection. The 

Court agrees with the Magistrate Judge’s analysis and conclusion that, in order to cure the 

constitutional deficiency, Plaintiff’s case had to be assigned to a different ALJ. See [DE 36] at p. 5. 

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. The Magistrate Judge’s Report and Recommendation [DE 36] is hereby APPROVED; 

2. Defendant’s Objections [DE 37] are hereby OVERRULED; 

3. Plaintiff’s Motion for Summary Judgment is hereby GRANTED;

4. Defendant’s Motion for Summary Judgment is hereby DENIED;

5. This matter is hereby REMANDED to the Commissioner for reassignment to a different 

ALJ. 

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6. The Clerk shall close this case and deny any pending motions as moot.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 

19th day of November, 2021.

Copies furnished to:

Magistrate Judge Snow

Counsel of record

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