Bailey v. Astrue
ORDER OF REMAND granting in part and denying in part 12 Plaintiff's Motion for Judgment on the Pleadings; denying 14 Defendant's Motion for Summary Judgment; Reversing decision of the Commissioner and Remanding this Case to Commissioner for further administrative action; approving 17 Memorandum and Recommendations. Signed by District Judge Martin Reidinger on 6/26/12. (nll)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:11cv227
MICHAEL J. ASTRUE,
Commissioner of Social Security,
ORDER OF REMAND
THIS MATTER is before the Court on the Plaintiff’s Motion for Judgment
on the Pleadings [Doc. 12] and the Defendant’s Motion for Summary
Judgment [Doc. 14].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation
of this Court, United States Magistrate Judge Dennis L. Howell was
designated to consider these motions and to submit recommendations for
On May 29, 2012, the Magistrate Judge filed a Memorandum and
Recommendation in which he recommended granting the Plaintiff’s motion,
reversing the Commissioner’s decision and remanding this matter for further
administrative action. [Doc. 17]. He recommended that the Defendant’s
Motion for Summary Judgment be denied. [Id.]. The parties were advised
recommendations were to be filed in writing within fourteen days of service of
the Recommendation and that failure to file Objections to the Memorandum
and Recommendation would preclude the parties from raising any objection
on appeal. [Id., at 15]. The period within which to file objections expired on
June 15, 2012 and no written Objections to the Memorandum and
Recommendation have been filed by either party.
Having conducted a careful review, the Court concludes that the
Magistrate Judge’s recommendation is supported by the record and the law.
recommendation that the decision be reversed and that this matter be
remanded. Although the Plaintiff did not specifically seek an order awarding
immediate benefits, such relief was sought in the Complaint. [Doc. 1]. As a
result, to the extent that such relief was implicitly requested in the Motion for
Judgment on the Pleadings, it will be denied.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for Judgment
on the Pleadings [Doc. 12] is hereby GRANTED in part to the extent that the
Plaintiff seeks reversal of the Commissioner’s decision denying him disability
benefits and remand for further proceedings. To the extent that the Plaintiff
seeks an immediate award of benefits, the Plaintiff’s Motion is hereby
IT IS FURTHER ORDERED that the Defendant’s Motion for Summary
Judgment [Doc. 14] is hereby DENIED.
IT IS FURTHER ORDERED that pursuant to this Court’s authority to
enter judgment affirming, modifying or reversing the decision of the
Commissioner pursuant to Sentence Four of 42 U.S.C. §405(g), the decision
of the Commissioner is hereby REVERSED and this case is hereby
REMANDED to the Commissioner for further administrative action as follows:
(1) upon remand, the case shall be assigned to a new Administrative Law
Judge (ALJ) who shall conduct a new hearing; (2) the ALJ shall make a
credibility determination as to the Plaintiff; (3) the ALJ shall assess the
Plaintiff’s residual functional capacity; and (4) if necessary, the ALJ shall
consider the testimony of the vocational expert.
The Clerk of Court is instructed to enter Judgment simultaneously
Signed: June 26, 2012
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