Garland v. Commissioner of Social Security

Filing 16

ORDER granting in part and denying in part 11 Plaintiff's Motion for Summary Judgment; denying 12 Defendant's Motion for Summary Judgment. It is further ordered that the decision of the Commissioner of Social Security is hereby REVERSED and the case is hereby REMANDED. Signed by District Judge Martin Reidinger on 02/27/2013. (thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:11cv49

LARRY DARREN GARLAND,

)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
)
Defendant.
)
_ _______________________________)

ORDER

THIS MATTER is before the Court on the Plaintiff’s Notice of Motion
and Motion for Judgment on the Pleadings [Doc.11] and the Defendant’s
Motion for Summary Judgment [Doc. 12].
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 their disposition.
On February 8, 2013, the Magistrate Judge filed a Memorandum and
Recommendation in which he recommended granting in part the Plaintiff’s
Motion for Judgment on the Pleadings and remanding the Commissioner’s
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decision for further administrative proceedings.

[Doc. 14].

The parties

were advised that any objections to the Magistrate Judge’s conclusions and
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 18]. The period within which to file
objections expired on February 25, 2013 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.

Accordingly, the Court hereby accepts the Magistrate Judge’s

recommendation and finds that remand is appropriate.1

Melkonyan v.

Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991).
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion for
Judgment on the Pleadings [Doc. 11] is hereby GRANTED in part and
DENIED in part.

1

The case is remanded for further administrative proceedings consistent with this
Order. To the extent that the Plaintiff assigned other errors to the Commissioner’s
decision, the Motion for Judgment on the Pleadings is denied.
2

IT IS FURTHER ORDERED that the decision of the Commissioner of
Social Security is hereby REVERSED and the case is hereby REMANDED
pursuant to Sentence Four of 42 U.S.C. Section 405(g) for further
administrative proceedings at which the following shall be considered:
1. The Administrative Law Judge (ALJ) shall consider and specify
the weight, including the reasoning in support thereof, to be
accorded the medical opinion of Dr. Timothy L. Johnson;
2. The ALJ shall considered the decision of the North Carolina
Department of Health and Human Services and shall set forth
his rationale for either accepting or discrediting the same; and
3. The ALJ shall complete his sequential evaluation if necessary.
IT IS FURTHER ORDERED that the Defendant’s Motion for
Summary Judgment is hereby DENIED.
The Clerk of Court shall enter separate Judgment of Remand
simultaneously herewith. The Clerk of Court is notified that this is a final
judgment closing the case.
Signed: February 27, 2013

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