Terwilliger v. Commissioner of Social Security

Filing 25

ORDER adopting Report and Recommendation re 23 Report and Recommendation; the decision of the Commissioner be Reversed and Remanded to permit plaintiff to withdraw his application for retirement benefits. Signed by Judge Michael R. Barrett on 3/22/19. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

David Thomas Terwilliger,
Plaintiff,
v.

Case No. 1:18cv11

Commissioner of Social Security

Judge Michael R. Barrett

Defendant.

OPINION & ORDER
This matter is before the Court upon the Magistrate Judge’s January 28, 2019,
Report and Recommendation (“R&R”) recommending that the decision of the
Commissioner be reversed and remanded to permit Plaintiff to withdraw his application
for retirement benefits. (Doc. 23).
When objections are received to a magistrate judge’s report and recommendation
on a dispositive matter, the district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.”

Fed. R. Civ. P.

72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1). Notice was given to the parties under
28 U.S.C. ' 636(b)(1)(c). Plaintiff filed objections to the Magistrate Judge=s R&R in the
form of a Motion to Clarify. (Doc. 24).
The Magistrate Judge completed a comprehensive review of the record and the
same will not be repeated here.

Plaintiff maintains that the Magistrate Judge’s R&R was in error because it did not
provide guidance on how reversal might be accomplished; and in order to be made whole,
Plaintiff and his spouse must be permitted to retroactively take all actions they would have
been entitled to take had Plaintiff’s withdraw request been timely approved in 2011 or
2012. In addition, Plaintiff argues that the costs of this action should be borne by the
Commissioner.
This Court’s review of the ALJ's decision is limited to “whether the ALJ applied the
correct legal standards and whether the findings of the ALJ are supported by substantial
evidence.” Blakley v. Comm'r Of Soc. Sec., 581 F.3d 399, 405-406 (6th Cir. 2009); see
also 42 U.S.C. § 405(g) (“The 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.”).
In addition, the Court cannot address any claim of Plaintiff’s spouse because those claims
are not before this Court.
Finally, Plaintiff is not entitled to costs and attorney fees. Under the Equal Access
to Justice Act (“EAJA”), “a court shall award to a prevailing party” in a civil action against
the United States “fees and other expenses . . . unless the court finds that the position of
the United States was substantially justified or that special circumstances make an award
unjust.” Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 498 (6th Cir. 2014) (quoting 28
U.S.C. § 2412(d)(1)(A)). However, attorney's fees for pro se litigants are not authorized
under the EAJA. Sheffield v. Sec'y of Health & Human Servs., 983 F.2d 1068 (6th Cir.
1992) (collecting cases). To the extent that Plaintiff is entitled to other expenses, his
request is premature. See 28 U.S.C. § 2412(d)(1)(B) (“party seeking award of fees and
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other expenses shall, within thirty days of final judgment in the action, submit to the court”
an application for reimbursement.”); and 28 U.S.C. § 2412(d)(2)(G) (defining “final
judgment” as “a judgment that is final and not appealable, and includes an order of
settlement”).
Based on the foregoing, the Court ADOPTS the Magistrate Judge’s January 28,
2019 R&R (Doc. 23). Accordingly, the decision of the Commissioner is REVERSED and
REMANDED to permit Plaintiff to withdraw his application for retirement benefits.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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