Giardina v. Astrue

Filing 28

ORDER granting 25 Defendant's Assented to Motion for Judgment and Remand Under Sentence Four of 42 USC sec. 405(g) and granting to the extent consistent with this Order 19 Plaintiff's Motion to Reverse the Decision of the Commissioner.T he Clerk is directed to enter a separate judgment in favor of Plaintiff in this matter under Rule 58(a), Fed. R. Civ. P., to remand this cause to the Commissioner for further administrative proceedings in accordance with this Order, and to close this case. This is not a Recommended Ruling. The parties have consented to the Magistrate Judges entering a final order in this case without the need for entry of a recommended ruling and review by a District Judge. See Fed. R. Civ. P. 73(b). Signed by Judge William I. Garfinkel on 11/23/2011. (Smith, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
VINCENT JOSEPH GIARDINA,

:

Plaintiff,

:

vs.

:

MICHAEL J. ASTRUE,
Commissioner of Social Security,

:

No. 3:10cv1511(SRU)(WIG)

:
Defendant.
------------------------------------------------------X
ORDER GRANTING DEFENDANT’S MOTION FOR ENTRY OF JUDGMENT
WITH REVERSAL AND REMAND [DOC. #25]
Defendant, Michael J. Astrue, Commissioner of the Social Security Administration, has
moved this Court to enter judgment with a reversal and remand of this cause to the
Commissioner. Counsel for Defendant represents that she has contacted Plaintiff’s counsel, who
consents to the relief sought in this motion.
Under sentence four of 42 U.S.C. § 405(g), the Court has the power to enter a judgment
with a reversal and remand of the cause to the Commissioner for further proceedings. See
Shalala v. Schaefer, 509 U.S. 292, 297 (1993); Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991).
Remand for further development of the record is appropriate when gaps exist in the
administrative record or when the administrative law judge (“ALJ”) committed legal error. See
Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980).
Here, the Commissioner has determined that remand of this case is necessary for further
development of the record and that a new decision is needed. Upon remand, the Appeals Council
will remand the case to an ALJ who will (1) reassess the medical source opinions in accordance
with 20 C.F.R. §§ 404.1527, 416.927, and SSR 96-2p and SSR 96-5p; (2) reassess the severity

and functional effects of the Plaintiff's mental impairments; (3) reassess the Plaintiff's Residual
Functional Capacity consistent with SSR 96-8p and provide rationale with specific references to
evidence of record in support of the assessed limitations; and (4) reevaluate the Plaintiff's
credibility and subjective copmlaints in accordance witih 20 C.F.R. §§ 404.1529 and 416.929
and SSR 9607p. In compliance with the above, the ALJ will offer the Plaintiff the opportunity
for a hearing de novo and will take any further action needed to complete the administrative
record and will then issue a new decision.
Accordingly, the Court hereby GRANTS the Defendant’s Assented to Motion for Entry
of Judgment and Remand Under Sentence Four of 42 U.S.C. § 405(g) [Doc. # 25]. Plaintiff's
Motion to Reverse the Decision of the Commissioner [Doc. # 19] is GRANTED to the extent set
forth in this Order.
The Clerk is directed to enter a separate judgment in favor of Plaintiff in this matter under
Rule 58(a), Fed. R. Civ. P., to remand this cause to the Commissioner for further administrative
proceedings in accordance with this Order, and to close this case.
This is not a Recommended Ruling. The parties have consented to the Magistrate
Judge’s entering a final order in this case without the need for entry of a recommended ruling and
review by a District Judge. See Fed. R. Civ. P. 73(b).
It is SO ORDERED, this

23rd

day of November, 2011, at Bridgeport,

Connecticut.

/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge
2