Miller v. Commissioner of Social Security

Filing 11

ORDER granting 10 Motion to Remand. Final judgment is entered pursuant to Rule 58 of the Federal Rules of Civil Procedure reversing and remanding this case to the Commissioner under sentence four of Section 205(g) of the Act, 42 USC Section 405(g). Signed by Senior Judge Donald E OBrien on 10/31/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BOBBIE LEE MILLER,
Plaintiff,

No. 13-CV-4045-DEO

vs.

ORDER

COMMISSIONER OF SOCIAL
SECURITY, Agent of Carolyn
W. Colvin,
Defendant.
____________________
This matter is before the Court on Defendant’s “Motion To
Reverse And Remand And For Entry of Final Judgment” and
supporting brief (Docket Nos. 10, 10-1).
The history of the case is set out in Defendant’s brief
(Docket No. 10-1) stating:
On
September
28,
2010,
plaintiff
protectively filed an application for
supplemental security income under Title
XVI of the Social Security Act (“Act”), 42
U.S.C. § 1381 et seq. (Tr. 58, 119-27).
Plaintiff’s claims were denied initially
(Tr. 58, 61-66) and on reconsideration (Tr.
60, 68-71). On May 28, 2012, following a
hearing, the administrative law judge
(“ALJ”) concluded that plaintiff was not
disabled within the meaning of the Act (Tr.
10-24).
On April 24, 2013, the Appeals
Council denied plaintiff’s request for
review (Tr. 1-5), making the ALJ’s decision
the final decision of the Commissioner.
Docket No. 10-1, p. 1.

The Plaintiff filed his Complaint in this case on May 20,
2013 (Docket No. 3), and Defendants filed an Answer and Social
Security Transcript on July 19, 2013 (Docket Nos. 6 and 7).
A briefing schedule was filed on July 22, 2013 (Docket No. 8),
and the Plaintiff filed his brief on August 8, 2013 (Docket
No. 9) requesting a remand, stating in part:
Defendant failed miserably to provide
Plaintiff with a full and fair hearing of
his claim for disability benefits, from the
initial denial up to the hearing level, and
even more so at the hearing level since
Plaintiff obtained a representative who
requested consultative evaluations that
might have averted the continued failure.
The ALJ failed to grant that request,
failed to deny that request, and was forced
by that failure to come up with a decision
in a case with no competent medical
evidence regarding the actual severe
impairments,
causing
him
to
simply
speculate as to what Plaintiff’s RFC might
be. The Defendant must be reversed, and on
remand the Defendant should be expressly
instructed to obtain necessary neurological
exams and testing, and IQ testing, to
confirm
or
disprove
the
impairments
alleged, of low intellectual functioning,
Schilder’s
disease,
and
Tourette’s
syndrome.
Docket No. 9, p. 22.
Thereafter, on September 30, 2013, Defendant filed the
instant “Motion To Reverse And Remand And For Entry Of Final

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Judgment” and supporting brief (Docket Nos. 10 and 10-1),
where the Defendant states:
Defendant, by the undersigned counsel,
moves the Court to reverse the decision of
the administrative law judge and remand
this action to defendant pursuant to
sentence four of Section 205(g) of the
Social Security Act, 42 U.S.C. §405(g), for
the reasons set forth in the accompanying
memorandum.
Plaintiff’s counsel agrees
that remand is appropriate in this case.
Docket No. 10.
Defendant’s brief goes on to state:
Upon receipt of the Court’s remand order,
the Appeals Council will vacate the ALJ’s
decision and remand this case to the ALJ.
The ALJ will be directed to: (1) allow
plaintiff
the
opportunity
to
submit
additional medical evidence; (2) schedule
a
neurological
consultive
examination
regarding plaintiff’s history of Schilder’s
disease;
(3)
schedule
a
psychiatric/psychological
consultative
examination of plaintiff and obtain a
mental
residual
functional
capacity
assessment; (4) give further consideration
to and provide a rational explanation for
the weight accorded to all medical source
opinions; (5) give further consideration to
plaintiff’s maximum residual functional
capacity; (6) obtain vocational expert
testimony
to
clarify
the
impact
of
plaintiff’s impairments on his occupational
base. . . .

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For the foregoing reasons, and pursuant to
the United States Supreme Court’s decision
in Shalala v. Schaefer, 509 U.S. 292
(1993), defendant respectfully requests
that the Court enter final judgment
pursuant to Rule 58 of the Federal Rules of
Civil Procedure reversing the decision of
the ALJ and remanding this case to the
Commissioner under sentence four of Section
205(g) of the Act. Pursuant to the Eighth
Circuit Court of Appeals case of Brown v.
Barnhart, 282 F.3d 580 (8th Cir. 2002),
defendant also requests that this Court
specifically include in its order that it
is “reversing and remanding” the case.
Docket No. 10-1, p. 2-3.
Because both parties are in agreement with reversing and
remanding the ALJ’s decision, Defendant’s motion (Docket No.
10) is granted.
Pursuant to the Supreme Court’s decision in

Shalala v.

Schaefer, 509 U.S. 292 (1993), final judgment is entered
pursuant to Rule 58 of the Federal Rules of Civil Procedure
reversing and remanding this case to the Commissioner under
sentence four of Section 205(g) of the Act, 42 U.S.C. §
405(g).
As set out in Defendants brief, upon remand, the ALJ will
be directed to: (1) allow plaintiff the opportunity to submit
additional

medical

evidence;

(2)

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schedule

a

neurological

consultive

examination

regarding

plaintiff’s

history

of

Schilder’s disease; (3) schedule a psychiatric/psychological
consultative examination of plaintiff and obtain a mental
residual functional capacity assessment; (4) give further
consideration to and provide a rational explanation for the
weight accorded to all medical source opinions; (5) give
further

consideration

to

plaintiff’s

maximum

residual

functional capacity; (6) obtain vocational expert testimony to
clarify

the

impact

of

plaintiff’s

impairments

on

his

occupational base.
IT IS SO ORDERED this 31st day of October, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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