Davis v. Astrue

Filing 56

ORDER granting in part and denying in part 47 Plaintiff's Motion for Judgment on the Pleadings, denying 49 Defendant's Motion for Judgment on the Pleadings, and adopting 52 Memorandum and Recommendations. Signed by Chief Judge James C. Dever III on 2/17/2012. (Sawyer, D.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DNISION No.7:10-CV-231-D FLETCHER DAVIS, Plaintiff, v. MICHAEL J. AS TRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ORDER On January 5, 2012, Magistrate Judge Daniel issued a Memorandum and Recommendation ("M&R"). In that M&R, Judge Daniel recommended that plaintiff s motion for judgment on the pleadings be granted in part and denied in part, that defendant's motion for judgment on the pleadings be denied, and that the action be remanded to permit the Administrative Law Judge ("ALJ") to address the NCDllliS Medicaid award in making his determination regarding claimant's alleged disability [D.E. 52]. On January 19,2012, defendant filed objections to the M&R [D.E. 53]. On February 2, 2012, plaintiff filed a response to defendant's objections [D.E. 55]. "The Federal Magistrates Act requires a district court to make a de novo determination of those portions ofthe [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (alteration in original) (emphasis and quotation omitted). Absent a timely objection, "a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face ofthe record in order to accept the recommendation." Id. (quotation omitted). The court has reviewed the M&R, the record, the briefs, defendant's objections, and plaintiffs response. In the M&R, Judge Daniel states that: In the present case, the undersigned cannot conclude that the ALJ thoroughly considered and discounted the same evidence on which the NCDHHS decision was based. Furthennore, this Court has remanded cases where the ALI failed to specifically mention a NCDHHS decision and merely cited to SSR 06-03p. M&R at 11 (citations omitted). Defendant objects and states that Judge Daniel erred in detennining that the AU did not consider a one page NCDIDIS decision. See Def. 's Obj. at 5. As Judge Daniel noted, the court cannot detennine whether the ALJ considered and discounted the same evidence on which the NCDHHS decision was based. Thus, Judge Daniel recommends that the case be remanded for further consideration. This court agrees with Judge Daniel's recommendation, and remands the case under sentence four of4 2 U. S.C. ยง 405(g). In doing so, the court expresses no opinion on how the defendant should view the evidence or what findings defendant should make. These issues are for defendant to consider and resolve. In sum, the court adopts the conclusions in the M&R [D.E. 52]. Defendant's objections [D.E. 53] are OVERRULED, plaintiffs motion for judgment on the pleadings [D.E. 47] is GRANTED IN PART and DENIED IN PART, defendant's motion for judgment on the pleadings [D.E. 49] is DENIED, and the action is REMANDED to the Commissioner for proceedings as set forth in the M&R. SO ORDERED. This n day of February 2012. 2

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