Vergara v. Commissioner of Social Security

Filing 25

ORDER: (1) The Report and Recommendation of the Magistrate Judge 24 is ADOPTED, CONFIRMED, and APPROVED in all respects and is made a part of this Order for all purposes, including appellate review. (2) The final decision of the Commissione r is REVERSED. This case is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings as follows: A) Reconsider all of the opinions of Dr. Hershkowitz and Dr. Jen; state with particularity the weight afforded and the reasons why; if discounted, provide good cause; (B) Adequately reflect consideration of the alleged side effects of Plaintiff's medications; and (C) Take such other action as may be necessary to resolve this matter properly. (3 ) Plaintiff's counsel is directed that, in the event benefits are awarded on remand, counsel shall ensure that any § 406(b) fee application be filed within the parameters set forth by the Order entered in Case No. 6:12-mc-124-Orl-22 (In Re : Procedures for Applying for Attorney's Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)). (4)The Clerk is directed to terminate any pending motions, enter a judgment in favor of Plaintiff, and close this case. Signed by Judge Charlene Edwards Honeywell on 8/21/2019. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DOUGLAS EDWARD VERGARA,
Plaintiff,
v.

Case No: 8:18-cv-1141-T-36JRK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
ORDER
This cause comes before the Court upon the Report and Recommendation filed by
Magistrate Judge James R. Klindt on August 5, 2019 (Doc. 24). Magistrate Judge Klindt
recommends: 1. That the Clerk of Court be directed to enter judgment pursuant to sentence four
of 42 U.S.C. § 405(g), reversing the Commissioner’s final decision and remanding this matter with
specific instructions; 2. That the Clerk be further directed to close the file; and 3. That Plaintiff’s
counsel be directed that, in the event benefits are awarded on remand, counsel shall ensure that
any § 406(b) fee application be filed within the parameters set forth by the Order entered in Case
No. 6:12-mc-124-Orl-22 (In Re: Procedures for Applying for Attorney’s Fees Under 42 U.S.C. §§
406(b) and 1383(d)(2)). Neither party has objected to the Report and Recommendation and the
time to do so has expired.
After careful consideration of the Report and Recommendation of the Magistrate Judge, in
conjunction with an independent examination of the court 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 hereby ORDERED and ADJUDGED as follows:

(1)

The Report and Recommendation of the Magistrate Judge (Doc. 24) is ADOPTED,
CONFIRMED, and APPROVED in all respects and is made a part of this Order
for all purposes, including appellate review.

(2)

The final decision of the Commissioner is REVERSED.

This case is

REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g)
for further proceedings as follows:
A) Reconsider all of the opinions of Dr. Hershkowitz and Dr. Jen; state with
particularity the weight afforded and the reasons why; if discounted, provide good
cause;
(B) Adequately reflect consideration of the alleged side effects of Plaintiff’s
medications; and
(C) Take such other action as may be necessary to resolve this matter properly.
(3)

Plaintiff’s counsel is directed that, in the event benefits are awarded on remand,
counsel shall ensure that any § 406(b) fee application be filed within the parameters
set forth by the Order entered in Case No. 6:12-mc-124-Orl-22 (In Re: Procedures
for Applying for Attorney’s Fees Under 42 U.S.C. §§ 406(b) and 1383(d)(2)).

(4)

The Clerk is directed to terminate any pending motions, enter a judgment in favor
of Plaintiff, and close this case.

DONE and ORDERED at Tampa, Florida on August 21, 2019.

Copies furnished to:
Counsel of Record
U.S. Magistrate Judge James R. Klindt

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