Summary
holding that "the problem with the ALJ's analysis is the failure to make any finding about whether plaintiff required additional unscheduled bathroom breaks beyond those that employers would 'normally' permit"
Summary of this case from Hooks v. ColvinOpinion
CASE NO. 11-11140
03-14-2012
DANIEL R. HUBBARD, III, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
HON. MARIANNE O. BATTANI
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND
GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND REMANDING FOR FURTHER REVIEW
Plaintiff Daniel Hubbard, III, brings this action pursuant to 42 U.S.C. § 405(g), challenging the final decision of the Commissioner denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 423. The case was referred to Magistrate Judge Michael Hluchaniuk pursuant to 28 U.S.C. § 636. Both parties filed dispositive motions, and in a Report and Recommendation ("R&R") dated February 27, 2012, Magistrate Judge Hluchaniuk recommended that Defendant's Motion for Summary Judgment be denied, that Plaintiff's Motion for Summary Judgment be granted, that the Commissioner's findings be reversed, and that the matter be remanded to the administrative law judge for further review.
In his Report and Recommendation, the Magistrate Judge informed the parties that objections to the R&R needed to be filed within fourteen days of service and that a party's failure to file objections would waive any further right of appeal. (R&R at 19). Neither party filed an objection. Because no objection has been filed in this case, the parties waived their right to de novo review and appeal.
Accordingly, the Court ADOPTS the Magistrate Judge's recommendation, DENIES Defendant's Motion for Summary Judgment, GRANTS Plaintiff's Motion for Summary Judgment, and REVERSES the Commissioner's findings. This matter is hereby REMANDED to the administrative law judge for determination of the "number of unscheduled bathroom breaks that Plaintiff needs, if any, and whether, in light of those findings, Plaintiff is able to work." (R&R at 17). Further, in accordance with the R&R, Plaintiff "should submit a specific medical opinion on any functional restrictions or limitations caused by his chronic diarrhea, including the need for, and frequency of, any unscheduled bathroom breaks during a typical eight-hour work day." (Id.) Finally, in his R&R, Magistrate Judge Hluchaniuk recommended clarification as to any "record evidence contradicting" the diagnosis of "functional bowel disorder" and the "extent to which the diagnosis, which is based on reported symptoms and patient history, along with ruling out other causes for the symptoms" affected the credibility determination.
Accordingly, the Court REMANDS this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
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HON. MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Opinion and Order were served upon counsel of record on this date by e-filing and/or ordinary mail.
Bernadette M. Thebolt
Case Manager