McEnteer v. Commissioner of Social Security

Filing 21

ORDER granting in part 19 Defendant's Opposed Motion for Entry of Judgment with Remand. The decision of the Commissioner is REVERSED and this action is REMANDED for further proceedings. See Order for details. The Clerk is directed to enter judgment accordingly and close the file. Signed by Magistrate Judge Carol Mirando on 12/14/2015. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTHONY MCENTEER,
Plaintiff,
v.

Case No: 2:15-cv-288-FtM-CM

COMMISSIONER
SECURITY,

OF

SOCIAL

Defendant.
ORDER
This matter comes before the Court upon review of the Opposed Motion for
Entry of Judgment with Remand filed by Defendant Commissioner of Social Security
(“Commissioner”) on December 2, 2015.

Doc. 19.

Defendant requests that the

Court remand this case to the Commissioner for further administrative proceedings
for the following reasons:
For further evaluation of Plaintiff’s mental impairments, to obtain an
updated psychological consultative examination, to consider the need for
medical expert evidence, as warranted, and to take any other action as
deemed necessary.
Doc. 19 at 1.
Although Plaintiff does not oppose the Court remanding the case to the
Commissioner nor the substantive reasons and directions proposed by Defendant,
Plaintiff seeks additional grounds for remand. Doc. 20 at 2. Specifically Plaintiff
requests that the Court remand the case to an administrative law judge (“ALJ”) other
than ALJ Larry Butler, as ALJ Butler is subject to ongoing disciplinary proceedings

by the Commissioner, some of which allegations concern cases in which Plaintiff’s
counsel was involved. Id., see also Doc. 16 at 15-16.
Pursuant to Title 42, United States Code, Section 405(g), the Court may
reverse the decision of the Commissioner with or without remanding the case for a
rehearing.

Upon due consideration, Defendant’s motion will be granted in part.

The decision of the Commissioner will be reversed, and the case will be remanded to
the Commissioner for rehearing for the reasons stated in the Commissioner’s brief
and with which Plaintiff agrees. In addition, in order to avoid any appearance or
risk of actual bias or prejudgment, the case should be reheard by a different ALJ.

See Withrow v. Larkin, 421 U.S. 35, 47 (1975).
ACCORDINGLY, it is hereby
ORDERED:
1.

Defendant’s Motion for Entry of Judgment with Remand (Doc. 26) is

GRANTED IN PART.
2.

The decision of the Commissioner is REVERSED and this action is

REMANDED under sentence four of 42 U.S.C. § 405(g) to the Commissioner for the
Commissioner to:
a. Re-evaluate Plaintiff’s mental impairments;
b. Obtain an updated psychological consultative examination;
c. Consider the need for medical expert evidence, as warranted; and
d. Take any other action as deemed necessary.

-2-

3.

The Commissioner shall re-assign the case for rehearing to an

Administrative Law Judge other than Administrative Law Judge Larry Butler.
4.

The Clerk shall enter judgment accordingly and close the file.

DONE and ORDERED in Fort Myers, Florida on this 14th day of December,
2015.

Copies:
Counsel of record

-3-