Brown v. Social Security Administration

Filing 20

REPORT AND RECOMMENDATIONS: 19 Defendant's Unopposed Rule 62.1(a)(3) Motion For Indicative Ruling On A Motion For Relief That Is Barred By A Pending Appeal be GRANTED; and the Court issue an Order indicating "that it is inclined to grant relief from its March 2, 2016 judgment entry should the court of appeals remand for that purpose." Objections to R&R due by 7/8/2016. Signed by Chief Magistrate Judge Sharon L. Ovington on 6-21-16. (mcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANITA BROWN,

:

Plaintiff,

:
Case No. 3:14cv00451

vs.

:

CAROLYN W. COLVIN,
Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

This previously dismissed social security case returns to this Court while it is pending
in the United States Court of Appeals for the Sixth Circuit.2 The case is presently pending
here on Defendant’s Unopposed Rule 62.1(a)(3) Motion For Indicative Ruling On A Motion
For Relief That Is Barred By A Pending Appeal. (Doc. #19). Defendant asks this Court to
indicate whether it is inclined to grant relief from its March 2, 2016 judgment entry, in the
event the Sixth Circuit remands the case for that purpose. The March 2, 2016 judgment
entry documented this Court’s decision to affirm the decision of the Administrative Law
Judge (ALJ) denying Plaintiff’s applications for Disability Insurance Benefits and

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.
2

Anita Brown v. Commissioner of Social Security, App. No. 16-3373, is in the briefing stage.

Supplemental Security Income. See Doc. #s 13-16.
Plaintiff’s presently pending appeal in the Sixth Circuit deprives this Court of
jurisdiction over issues involved in his appeal. See Taylor v. KeyCorp, 680 F.3d 609, 616
(6th Cir. 2012) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)
and citing United States v. Garcia–Robles, 562 F.3d 763, 767–68 (6th Cir. 2009)). This
Court, however, may take certain steps towards reviving its jurisdiction in limited
circumstances. These steps arise under Fed. R. Civ. P. 62.1, which provides in pertinent
part:
(a) Relief Pending Appeal. If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is
pending, the court may:
(1)

...

(2)

...

(3)

state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.

An indicative ruling is warranted under Rule 62.1(a)(3) because Defendant now
agrees, for the first time in this case, that a remand of this matter to the Social Security
Administration is warranted pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. #19,
PageID#s 1215-16). Although Defendant does not specify the reason or reasons why a
remand is warranted, Plaintiff does not oppose Defendant’s motion. Id. at 1216. The
Commissioner, moreover, normally opposes a high percent of requests for remand, at least in
this District. Given this and the lack of a present dispute in this Court, confidence is nearly
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absolute that, in the event the Court of Appeals remands this case, a Motion for Relief from
the judgment would be granted and a remand for further administrative proceedings would
be warranted under sentence four of 42 U.S.C. §405(g).
It should be noted that Defendant has identified particular proceedings that will occur
in the event the case is remanded to the Social Security Administration – specifically, “the
ALJ will re-evaluate appellant’s Social Security disability benefits application under the
rules and regulations, including evaluation limitations indicated in the opinion evidence
from treating and reviewing physicians and psychologists.” (Doc. #19, PageID# 1216). A
judicial order requiring such administrative proceedings on remand would be well within the
confines of sentence four of §405(g).
Accordingly, Defendant’s Unopposed Motion For Indicative Ruling is well taken.
IT IS THEREFORE RECOMMENDED THAT:
1.

Defendant’s Unopposed Rule 62.1(a)(3) Motion For Indicative Ruling On A
Motion For Relief That Is Barred By A Pending Appeal (Doc. #19) be
GRANTED; and

2.

The Court issue an Order indicating “that it is inclined to grant relief from its
March 2, 2016 judgment entry should the court of appeals remand for that
purpose.” (Doc. #9, PageID#1219).

June 21, 2016
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this
period is extended to SEVENTEEN days because this Report is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections
shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is
based in whole or in part upon matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party’s objections within
FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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