Dailey v. Colvin

Filing 18

REPORT AND RECOMMENDATION recommending that the parties' 17 Joint MOTION to Remand be GRANTED, & that this Court enter judgment reversing & remanding this cause to the Commissioner for action consistent w/the parties' motion as set out. Objections to R&R due by 7/14/2014. Signed by Magistrate Judge Sonja F. Bivins on 6/23/2014. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARILYN DAILEY,
Plaintiff,

*
*
*
vs.
*
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

Civil Action No.13-00559-CG-B

REPORT AND RECOMMENDATION
This

matter

is

before

the

Court

on

the

parties’

joint

Motion to Remand pursuant to “sentence four” of 42 U.S.C. §
405(g).

(Doc.

undersigned
U.S.C.

§

17).

for

a

This
report

636(b)(1)(B)

consideration

of

all

Motion
and

and

has

been

recommendation
Local

matters

Rule

referred
pursuant

72.2(c)(3).

presented,

the

to

the

to

28

Upon

undersigned

recommends that the cause be REMANDED to the Commissioner for a
new determination.
In the joint motion, the parties have stipulated that this
matter should be remanded to the Commissioner of Social Security
for further administrative proceedings pursuant to sentence four
of 42 U.S.C. § 405(g). (Doc. 17).

Specifically, the parties

represent that there exists two problems with this case: the
transcript of the administrative hearing is inaudible at points
and the evidentiary basis for the Administrative Law Judge’s

1

(ALJ)

finding

that

Ms.

Dailey

can

perform

exertion occupations is unclear. (Id., at 1).

certain

medium

Accordingly, the

parties request remand so that an ALJ can “hold a new hearing,
during

which

he

or

she

will

obtain

supplemental

vocational

expert testimony, and assess [Plaintiff’s] residual functional
capacity based on the record as a whole, including the evidence
gathered at the new hearing.” (Id.).
Upon consideration of the foregoing, and the 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

undersigned

RECOMMENDS

that

the

parties’ joint Motion to Remand be GRANTED, and that this Court
enter

judgment

reversing

and

remanding

this

cause

to

the

Commissioner for action consistent with the parties’ motion. 42
U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 101 111 S.
Ct. 2157, 115 L. Ed. 2d 78 (1991).1
DONE this 23rd day of June, 2014.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
1

Plaintiff has reserved the right to petition the Court for
attorney fees pursuant to the Equal Access to Justice Act
(“EAJA”), and the Commissioner has reserved the right to file a
response.
In the alternative, the parties may stipulate to an
award of EAJA fees, and may petition the Court for approval.
(Doc. 17 at 2-3).
2