Opinion
CASE NO. C16-1734 JCC-BAT
09-06-2017
MARIAN SHARIF ALI, Plaintiff, v. NANCY A. BERRYHILL, Defendant.
REPORT AND RECOMMENDATION
The Commissioner moves to reverse and remand. Dkt. 20. The Commissioner's attempts to ascertain plaintiff's position on this motion have been unsuccessful. Id. at 2. The Court recommends that this matter be REVERSED and REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
In resetting the date to consider Commissioner's motion, the Court noted that if plaintiff's counsel did not respond by September 5, 2017, plaintiff's consent to reverse and remand this matter would be presumed because this was precisely the relief that plaintiff sought. Dkt. 21. Plaintiff's counsel has not responded. The Court therefore presumes that plaintiff consents to the reversal and remand.
The Court has grave concerns about the diligence displayed by plaintiff's counsel, as well as whether counsel is actually communicating with his client. In May 2017, the Court ordered plaintiff to show cause why this case should be dismissed based on counsel's failure to file an opening brief or to move for an extension. In June 2017, the Court granted plaintiff a second extension of time but noted that "[n]o further extensions will be granted absent good cause, and lack of preparation by counsel does not constitute good cause." Dkt. 16, at 1. When counsel still filed plaintiff's opening brief three days late, Dkt. 17, the Court accepted the brief so that plaintiff's interests would not be prejudiced. --------
On remand, the Appeals Council will direct the Administrative Law Judge to reevaluate the opinion evidence pursuant to 20 C.F.R. §§ 404.1527 and 416.927, reconsider the nature and severity of the claimant's mental impairments and in so doing, develop the record as necessary; reassess the claimant's residual functional capacity pursuant to 20 C.F.R. §§ 404.1545 and 416.945 and Social Security Ruling 96-8p; obtain vocational expert evidence and determine whether the claimant can perform her past relevant work, and if not, other work; offer the claimant the opportunity for a hearing; take any further action needed to complete the administrative record; and issue a new decision.
A proposed order and judgment are attached. The district judge may consider this report and recommendation immediately.
DATED this 6th day of September, 2017.
/s/_________
BRIAN A. TSUCHIDA
United States Magistrate Judge