Opinion
CASE NO. C11-5178-RJB-JRC
10-26-2011
PATRICK O'BRIEN JR., Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON STIPULATED MOTION FOR REMAND
This matter has been referred to Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Magistrates Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261 (1976). This matter is before the Court on Defendant's stipulated motion to remand the matter to the administration for further consideration. (ECF No. 21.)
After reviewing Defendant's stipulated motion and the relevant record, the undersigned recommends that the Court grant Defendant's motion, and reverse and remand this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g).
On remand, based on the parties' stipulation, this Court recommends that the Administrative Law Judge assigned to this matter following remand (the "ALJ") hold a new hearing and issue a new decision.
The ALJ should be directed to consider the medical evidence as a whole. The ALJ should consider the severity of Plaintiff's peripheral neuropathy. The ALJ should consider Plaintiff's testimony and the statements of any lay witnesses, as well as evidence from the Veteran's Administration. The ALJ should further consider Plaintiff's residual functional capacity. Once the residual functional capacity has been established, the ALJ should obtain supplemental vocational expert testimony, if necessary based on the sequential disability evaluation process, to determine if Plaintiff could perform any jobs in the national economy. The ALJ should present a complete hypothetical to the vocational expert and should confirm consistency with the Dictionary of Occupational Titles.
This Court further recommends that the ALJ take any other actions necessary to develop the record. In addition, Plaintiff should be allowed to submit additional evidence and arguments to the ALJ on remand.
Given the facts and the parties' stipulation, the Court recommends that the District Judge immediately approve this Report and Recommendation and order that the case be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).
The parties agree and this Court recommends that reasonable attorney fees should be awarded following proper application, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
J. Richard Creatura
United States Magistrate Judge