Nixon v. Apfel

Full title: DONNA D. NIXON, Plaintiff, v. KENNETH S. APFEL, Commissioner of Social…

Court: United States District Court, S.D. Alabama, Southern Division

Date published: Jul 27, 2000

Civil Action No. 99-1012-RV-M (S.D. Ala. Jul. 27, 2000)

Opinion

Civil Action No. 99-1012-RV-M

July 27, 2000

REPORT AND RECOMMENDATION

BERT W. MILLING, JR., United States Magistrate Judge.

In this action under 42 U.S.C. § 405(g), Plaintiff seeks judicial review of an adverse social security ruling which denied claims for disability insurance benefits and Supplemental Security Income (Doc. 1). Defendant has filed a Motion for Entry of Judgment Under Sentence Four of 42 U.S.C. § 405(g) with Remand of the Cause to the Defendant (Doc. 14). Defendant has stated that Plaintiffs attorney has no objection to the motion (Doc. 14, p. 2).

Defendant states that the Social Security Administration needs to refer the action back to an Administrative Law Judge (hereinafter ALJ)

to further develop the record regarding sleep apnea, questionable narcolepsy, recurring pilonidal cyst, and recurring congenital kneecap dislocation; to reassess the functional limitations imposed by all of these impairments in combination; and, if necessary, to obtain testimony from a vocational expert. The ALJ will be advised to reconsider the medical treatment records and to assess the credibility of the lay witness. The ALJ should conduct a new hearing and issue a new decision.

(Doc. 14, pp. 2). This is a tacit admission that Plaintiffs application was not appropriately considered and that this action should be reversed. Without reviewing the substantive evidence of record, this Court accepts Defendant's acknowledgment of error.

It appears to the Court that the decision of the Secretary should be reversed and remanded. Such remand comes under sentence four of 42 U.S.C. § 405(g). See Melkonyan v. Sullivan, 501 U.S. 89 (1991). For further procedures not inconsistent with this report, see Shalala v. Schaefer, 509 U.S. 292 (1993).

Therefore, it is recommended, without objection from Plaintiff, that the Motion for Entry of Judgment be granted (Doc. 14), that this action be reversed and remanded to the Social Security Administration for further administrative proceedings, and that judgment be entered in favor of Plaintiff Donna D. Nixon and against Defendant Kenneth S. Apfel on all claims.