Opinion
Civil Action No. 00-0085-AH-M.
October 10, 2000.
AMENDED REPORT AND RECOMMENDATION
It is recommended that the Report and Recommendation entered on September 20, 2000 (Doc. 14) be amended. Specifically, it is recommended that the last paragraph of the substantive report, which precedes the "Magistrate Judge's Explanation of procedural Rights and Responsibilities Following Recommendation and Findings concerning Need for Transcript," be eliminated and that the following paragraph be substituted:
Therefore, it is recommended, without objection from Plaintiff, that Defendant's motion to remand under sentence four be granted, that the Court enter a judgment reversing the decision of the Commissioner, and that this action be reversed and remanded to the Social Security Administration for further administrative proceedings.
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 1383(c), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for 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. 13). Defendant has stated that plaintiff's attorney has no objection to the motion (Doc. 13, p. 2).
Defendant states that the Social Security Administration needs to refer the action back to an Administrative Law Judge
to further evaluate the credibility of Plaintiff's subjective complaints of pain; including obtaining a current mental status examination and mental medical source statements from a board-certified psychiatrist. Additionally, the ALJ should provide Plaintiff with a supplemental hearing; including a psychiatrist to offer expert witness evidence at the hearing; and further obtain supplemental vocational expert testimony as needed; and further evaluate credibility consistent with Social Security Ruling 96-7p.
(Doc. 13, pp. 1-2). This is a tacit admission that Plaintiff's 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. 13), 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 Dana C. Rivers and against Defendant Kenneth S. Apfel on all claims.