Mitchell v. Commissioner of Social Security

Filing 11

ORDER granting 9 motion to remand; adopting 10 report and recommendation. The decision of the Commissioner is REVERSED and REMANDED. The Clerk is directed to enter judgment in favor of Scott Mitchell. If Scott Mitchell ultimately prevails in this case upon remand to the Social Security Administration, any motion for attorney's fees under 42 U.S.C. § 406(b) must be filed within 60 days of the Commissioner's final decision. Signed by Judge Virginia M. Hernandez Covington on 3/27/2009. (MTD)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION SCOTT G. MITCHELL, Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. ___________________________/ ORDER This matter comes before the Court upon consideration of United States Magistrate Judge Thomas G. Wilson's report and recommendation recommending (Doc. the # 10), entered of on March 2, 2009, Case No. 8:08-cv-1573-T-33TGW that Commissioner Social Security's unopposed motion for entry of judgment with remand (Doc. # 9) be granted. As of this date, the parties have not filed objections to the report and recommendation, and the time for doing so has elapsed. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the 28 magistrate judge's report Williams and v. recommendation. U.S.C. 636(b)(1); Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. U.S.C. 636(b)(1)(C). 28 The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff'd, 28 F.3d 116 (11th Cir. 1994). The Court has conducted an independent examination of the file and upon due the consideration Court of the the report report and and recommendation, accepts recommendation of Judge Wilson. Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED: (1) United States Magistrate Judge Thomas G. Wilson's report and recommendation (Doc. # 10) is ACCEPTED and ADOPTED. (2) The Commissioner of Social Security's unopposed motion for entry of judgment with remand (Doc. # 9) is GRANTED. (3) The decision of the Commissioner is REVERSED and REMANDED. (4) The Clerk is directed to enter judgment in favor of Scott 2 Mitchell pursuant to 42 U.S.C. 405(g) as this is a sentence four remand, and thereafter to close the file. Shalala v. Schaefer, 509 U.S. 292, 302-03 (1993); Newsome v. Shalala, 8 F.3d 775, 779-80 (11th Cir. 1993). (5) If Scott Mitchell ultimately prevails in this case upon remand to the Social Security Administration, any motion for attorney's fees under 42 U.S.C. 406(b) must be filed within 60 days of the Commissioner's final decision. See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 n.2 (11th Cir. 2006). DONE and ORDERED in Chambers in Tampa, Florida, this 27th day of March 2009. Copies: All Counsel of Record 3

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