OWNBY v. ASTRUE

Filing 26

REPORT AND RECOMMENDATION - 1) That Dft's 24 MOTION to Remand be Granted and the Commissioner's decision denying benefits be Reversed. 2) That this case be Remanded to the Commissioner of Social Security pursuant to sen tence four of 42 U.S.C> § 405(g). 3) That the clerk be directed to enter final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure. 4) That the clerk be directed to administratively close this file. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 10/28/2009. ** Internal deadline for referral to district judge if objections are not filed earlier: 11/25/2009. (laj)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION DOUGLAS R. OWNBY, Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _______________________________/ REPORT AND RECOMMENDATION This action was initiated under the Social Security Act to obtain judicial review of Defendant's final decision denying Plaintiff's claim for disability benefits (Doc. 1). Now before the court is Defendant's Motion to Remand pursuant to sentence four of Title 42 U.S.C. § 405(g) (Doc. 24). Defendant has certified that Plaintiff has no objection to this motion (id.). Sentence four of section 405(g) states that "[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). In the instant case, the Commissioner states that remand is appropriate to enable an Administrative Law Judge to: reassess Plaintiff's mental residual functional capacity (RFC) to account for his moderate difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, and pace. In reassessing Plaintiff's RFC, the ALJ will be directed to specifically consider the Washington state board of Industrial Insurance Appeals' December 14, 2005 order. After reassessing Plaintiff's RFC, the ALJ will be directed to determine whether Plaintiff's nonexertional limitations significantly erode the occupational base of light work. If the ALJ finds that they do, the ALJ will be directed to obtain vocational expert testimony regarding Plaintiff's ability to perform other work in the economy. Case No. 5:09cv10/RS/EMT

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(Doc. 24, Memorandum in Support at 1­2). Based upon the foregoing, this court concludes that good cause has been shown for remand. Accordingly, it is respectfully RECOMMENDED: 1. 2. 3. 4. 5. That Defendant's Motion to Remand (Doc. 24) be GRANTED and the That this case be REMANDED to the Commissioner of Social Security pursuant to That Defendant be ordered to conduct proceedings in accordance with this Report That the clerk be directed to enter final judgment pursuant to Rule 58 of the Federal That the clerk be directed to administratively close this file. Commissioner's decision denying benefits be REVERSED. sentence four of 42 U.S.C. § 405(g). and Recommendation. Rules of Civil Procedure At Pensacola, Florida, this 28th day of October 2009.

/s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES Objections to these proposed findings and recommendations may be filed within ten days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon the magistrate judge and all other parties. Failure to object may limit the scope of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

Case No.: 5:09cv10/RS/EMT