Carey v. Commissioner of Social Security
Filing
18
ORDER: The Report and Recommendation of Elizabeth A. Jenkins, United States Magistrate Judge 17 is ADOPTED. The decision of the Commissioner of Social Security denying benefits is REVERSED and the case is REMANDED for further proceedings consisten t with the Report and Recommendation. The Clerk of Court shall enter final judgment in favor of Plaintiff pursuant to 42 U.S.C. § 405(g) as this is a "sentence four remand" and thereafter CLOSE THIS CASE. The final judgment sha ll state that if Plaintiff 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 no later than thirty (30) days after the date of t he Social Security letter sent to the Plaintiff's counsel of record at the conclusion of the Agency's past due benefit calculation stating the amount withheld for attorney's fees. Signed by Judge Virginia M. Hernandez Covington on 3/10/2014. (KNC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN P. CAREY,
Plaintiff,
v.
Case No. 8:12-cv-2362-T-33EAJ
CAROLYN W. COLVIN, Acting
Commissioner of the United
States Social Security
Administration,1
Defendant.
____________________________/
ORDER
This matter is before the Court on consideration of the
Report and Recommendation of United States Magistrate Judge
Elizabeth A. Jenkins (Doc. # 17), filed on February 18, 2014,
recommending that the decision of the Commissioner denying
benefits be reversed and the case be remanded for further
proceedings consistent with the Report and Recommendation.
Judge Jenkins further recommended that:
The Clerk of Court shall enter final judgment in
favor of Plaintiff pursuant to 42 U.S.C. § 405(g)
as this is a “sentence four remand” and close the
file. Shalala v. Schaefer, 509 U.S. 292, 302-03
1
Carolyn W. Colvin became Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Federal Rule of
Civil Procedure 25(d), Ms. Colvin is substituted for Michael
J. Astrue as the defendant in this lawsuit.
(1993); Newsome v. Shalala, 8 F.3d 775, 779-80
(11th Cir. 1993). The final judgment shall state
that if Plaintiff 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 no later than thirty (30) days
after the date of the Social Security letter sent
to the [P]laintiff’s counsel of record at the
conclusion of the Agency’s past due benefit
calculation stating the amount withheld for
attorney[‘s] fees. See In re Procedures for
Applying for Attorney Fees under 42 U.S.C. §§
406(b) and 1383(d)(2), No. 6:12-mc-124-CRL-22 (M.D.
Fla. Nov. 13, 2012).
(Id.).
As
of
this
date,
no
objection
to
the
Report
and
Recommendation has been filed, and the time to do so has now
passed. After careful consideration, the Court adopts the
Report and Recommendation of the Magistrate Judge.
Discussion
After conducting a careful and complete review of the
findings and recommendations, a district judge may accept,
reject,
or
modify
recommendation.
28
the
magistrate
U.S.C.
§
judge’s
636(b)(1);
report
and
Williams
v.
Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459
U.S. 1112 (1983).
2
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. 28 U.S.C. §
636(b)(1)(C). The district judge reviews legal conclusions de
novo, even in the absence of an objection. See Cooper-Hous.
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).
After conducting a careful and complete review of the
findings, conclusions, and recommendations, and giving de
novo review to matters of law, the Court accepts the factual
findings and legal conclusions of the Magistrate Judge, and
adopts the recommendation of the Magistrate Judge.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
The Report and Recommendation of Elizabeth A. Jenkins,
United States Magistrate Judge (Doc. # 17) is ADOPTED.
(2)
The decision of the Commissioner of Social Security
denying benefits is REVERSED and the case is REMANDED
3
for further proceedings consistent with the Report and
Recommendation.
(3)
The Clerk of Court shall enter final judgment in favor
of Plaintiff pursuant to 42 U.S.C. § 405(g) as this is
a “sentence four remand” and thereafter CLOSE THIS CASE.
The
final
judgment
shall
state
that
if
Plaintiff
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
no later than thirty (30) days after the date of the
Social Security letter sent to the Plaintiff’s counsel
of record at the conclusion of the Agency’s past due
benefit calculation stating the amount withheld for
attorney’s fees.
DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of March, 2014.
Copies: All Counsel of Record
4
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