Richardson v. Commissioner of Social Security Administration

Filing 24

REPORT AND RECOMMENDATION recommending the district court grant the Commissioner's 23 Motion to Remand, the Commissioner's decision be reversed, and the case be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative action. Objections to R&R due by 11/12/13. Signed by Magistrate Judge Kevin McDonald on 10/24/13. (cnob, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
David Govan Richardson,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security,1
Defendant.

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Civil Action No. 6:12-3644-RMG-KFM
REPORT OF MAGISTRATE JUDGE

This case is before the court for a report and recommendation pursuant to
Local Civil Rule 73.02(B)(2)(a) DSC, concerning the disposition of Social Security cases in
this District, and Title 28, United States Code, Section 636(b)(1)(B).2
The plaintiff brought this action pursuant to Sections 205(g) and 1631(c)(3)
of the Social Security Act, as amended (42 U.S.C. 405(g) and 1383(c)(3)), to obtain judicial
review of a final decision of the Commissioner of Social Security denying his claims for
disability insurance benefits and supplemental security income benefits under Titles II and
XVI of the Social Security Act.
ADMINISTRATIVE PROCEEDINGS
The plaintiff filed applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) benefits on November 23, 2009, alleging that he
became unable to work on March 1, 2006. The alleged onset date was later amended to
June 30, 2010. The applications were denied initially and on reconsideration by the Social

1

Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on
February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), Colvin should be substituted for Michael J.
Astrue as the defendant in this case.
2

A report and recommendation is being filed in this case, in which one or both parties declined
to consent to disposition by the magistrate judge.

Security Administration. On January 18, 2011, the plaintiff requested a hearing. The
administrative law judge (“ALJ”), before whom the plaintiff and Kristan Cicero, an impartial
vocational expert, appeared3 on September 20, 2011, considered the case de novo, and
on October 5, 2011, found that the plaintiff was not under a disability as defined in the
Social Security Act, as amended. The ALJ's finding became the final decision of the
Commissioner of Social Security when it was approved by the Appeals Council on October
26, 2012.
The plaintiff filed this action for judicial review on December 28, 2012. On
August 10, 2013, the plaintiff filed a brief in support of his case. On October 23, 2013, the
Commissioner moved this court to enter a judgment with an order of reversal and remand
of the cause to the Commissioner for further administrative proceedings. Under sentence
four of 42 U.S.C. § 405(g), the court has power to “enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying or reversing the decision of the
Commissioner, with or without remanding the cause for a rehearing.” Shalala v. Schaefer,
509 U.S. 292, 296-98 (1993).
The Commissioner states in the motion for remand that, after further review
of the transcript in this case, the case should be remanded for further consideration of the
plaintiff’s claim. Accordingly, if the court grants the motion, the agency’s Appeals Council
will remand the case to an ALJ, and the ALJ will be instructed to:
• provide the plaintiff with an opportunity to submit additional
evidence;
• obtain medical expert testimony regarding the nature and
severity of the plaintiff’s impairments, if warranted and
available;

3

The vocational expert testified by telephone.

2

• reconsider the plaintiff’s residual functional capacity, and in so
doing, further evaluate the opinion evidence from the plaintiff’s
treating sources;
• seek supplemental vocational expert testimony, if warranted,
to determine whether there are a significant number of jobs in
the national economy the plaintiff can perform;
• give the plaintiff an opportunity for a hearing; and,
• issue a new decision.
(Doc. 23-1 at pp. 1-2).
The Commissioner, through counsel, contacted the plaintiff’s counsel,
Beatrice Whitten, who stated that the plaintiff does not oppose the motion to remand (doc.
23 at p. 1).
For the foregoing reasons, it is recommended that the district court grant the
Commissioner's motion to remand (doc. 23), the Commissioner's decision be reversed, and
the case be remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further
administrative action as set forth above.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge
October 24, 2013
Greenville, South Carolina

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