Opinion
CA 00-0086-P-C.
September 15, 2000.
JUDGMENT
In accordance with the order entered on this date, it is hereby ORDERED, ADJUDGED, and DECREED that the decision of the Commissioner of Social Security denying claimant benefits be reversed and this cause is hereby remanded to the Commissioner, pursuant to sentence four of 42 U.S.C. § 405 (g), for further proceedings. The remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party under the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court's jurisdiction over this matter.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and there having been no objections filed, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(B) and dated August 22, 2000 is ADOPTED as the opinion of this Court.
REPORT AND RECOMMENDATION
The Commissioner has moved for entry of judgment under sentence four of 42 U.S.C. § 405 (g) with remand of this cause for further proceedings. (Doc. 16) The Commissioner proposes a remand for further administrative proceedings to allow the Administrative Law Judge to (1) consider and address the evidence of record regarding the diagnoses of arthritis, mild levoscohosis, lumbago with sciatica, disc bulge at L4-5, chronic low back strain, and chronic cervical, thoracic and lumbar strain with precipitating obesity, and the limitations reasonably arising from these diagnosed impairments; (2) give due consideration to Social Security Rulings 96-6p and OO-3p; (3) re-contact plaintiff's treating physicians, if necessary, to assist in credibility findings, particularly with regard to her use of a wheelchair; (4) reconsider the credibility of plaintiff's testimony regarding her inability to pay for medical treatment and medication pursuant to Social Security Ruling 96-7p; (5) address the evidence regarding limitations in plaintiff's ability to reach; (6) respond to plaintiff's objection to the use of Dr. William Crotwell as an orthopedic consultative examiner based on the appearance of Dr. Crotwell's lack of objectivity towards her; (7) consider new and potentially material evidence regarding additional medical treatment of plaintiff during the period December 3, 1998 through September 3, 1999; and (8) call upon the services of a vocational expert, if necessary. ( See id. at 1-3).
The motion to remand reveals that counsel for the defendant, Patricia N. Beyer, Esquire, notified plaintiff's counsel, R. Michael Booker, Esquire, of the contents of the motion and was advised by Mr. Booker that the plaintiff would interpose no objection to the motion to remand. ( See id. at 3)
In light of the foregoing, and the plain language of sentence four of 42 U.S.C. § 405 (g) empowering this Court "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing[,]" the Magistrate Judge recommends that this cause be reversed and remanded pursuant to sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for further proceedings. The remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court's jurisdiction over this matter.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.