Busho v. Commissioner of Social Security

Filing 34

ORDER adopting 33 Report and Recommendations. The Commissioner's decision is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the Administrative Law Judge is required to (a) reconsider Plaintiff's applications and the record in light of the correct alleged date of disability onset; (b) reevaluate Plaintiff's credibility; (c) reevaluate the testimony of Ms. Zimmer, and state the weight assigned to this testimony and why; (d) reconsider Dr. Murthy Ravipati's opinions; (e) ensure that a full and fair record is developed; (f) reconsider Plaintiff's RFC, if appropriate; and (g) conduct any further proceedings deemed appropriate. Should this remand result in the award of benefit s, Plaintiff's attorney is GRANTED, pursuant to Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure, an extension of time in which to file a petition for authorization of attorneys' fees under 42U.S.C. § 406(b), until thirty (30) days after the date of the Commissioner's letter sent to Plaintiff's counsel of record at the conclusion of the Agency's past due benefit calculation stating the amount withheld for fees. The extension does not apply to the filing of a motion for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. The Clerk of the Court is DIRECTED to enter judgment consistent with the Order and close the file. Signed by Judge James S. Moody, Jr on 10/20/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

RODNEY DUANE BUSHO,
Plaintiff,
v.

Case No: 8:13-cv-2921-T-30JBT

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

ORDER
THIS CAUSE came on for consideration upon the Report and Recommendation
submitted by Magistrate Judge Joel B. Toomey (Dkt. #33). The Court notes that neither
party filed written objections to the Report and Recommendation and the time for filing
such objections has elapsed.
After careful consideration of the Report and Recommendation of the Magistrate
Judge in conjunction with an independent examination of the file, the Court is of the
opinion that the Magistrate Judge's Report and Recommendation should be adopted,
confirmed, and approved in all respects.
ACCORDINGLY, it is therefore, ORDERED AND ADJUDGED:
1.

The Report and Recommendation (Dkt. #33) of the Magistrate Judge is

adopted, confirmed, and approved in all respects and is made a part of this order for all
purposes, including appellate review.

2.

The Commissioner’s decision is REVERSED and REMANDED pursuant

to sentence four of 42 U.S.C. § 405(g).
3.

On remand, the Administrative Law Judge is required to (a) reconsider

Plaintiff’s applications and the record in light of the correct alleged date of disability onset;
(b) reevaluate Plaintiff’s credibility; (c) reevaluate the testimony of Ms. Zimmer, and state
the weight assigned to this testimony and why; (d) reconsider Dr. Murthy Ravipati’s
opinions; (e) ensure that a full and fair record is developed; (f) reconsider Plaintiff’s
RFC, if appropriate; and (g) conduct any further proceedings deemed appropriate.
4.

Should this remand result in the award of benefits, Plaintiff’s attorney is

GRANTED, pursuant to Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure, an
extension of time in which to file a petition for authorization of attorneys’ fees under 42
U.S.C. § 406(b), until thirty (30) days after the date of the Commissioner’s letter sent to
Plaintiff’s counsel of record at the conclusion of the Agency’s past due benefit calculation
stating the amount withheld for fees. See In re: Procedures for Applying for Attorney’s
Fees Under 42 U.S.C. § 406(b) & 1383(d)(2), Case No. 6:12-mc-124-Orl-22 (M.D. Fla.
Nov. 13, 2012). The extension does not apply to the filing of a motion for attorneys’ fees
under the Equal Access to Justice Act, 28 U.S.C. § 2412.

2

5.

The Clerk of the Court is DIRECTED to enter judgment consistent with

the Order and close the file.
DONE and ORDERED in Tampa, Florida, this 20th day of October, 2014.

Copies Furnished To:
Counsel/Parties of Record
Administrative Law Judge
S:\Odd\2013\13-cv-2921 adopt 33.docx

3