Tomey v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER adopting 20 Proposed Findings and Recommendation; granting plaintiff's 15 MOTION for Remand insofar as she requests remand to the Commissioner for consideration of new evidence and denying insofar as she reques ts that the court order the Commissioner to call a medical expert; reversing the decision of the Commissioner and remanding this case for consideration of new evidence pursuant to the sixth sentence of 42 U.S.C. § 405(g), which proceedings shall include matters set forth in the Proposed Findings and Recommendation at pages 6 to 10; denying without prejudice plaintiff's 17 MOTION for Summary Judgment; this matter is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 4/11/2011. (cc: attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

REBECCA TOMEY,
on behalf of A.F.,
Plaintiff,
v.

Civil Action No. 2:10-0873

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER

Pending are plaintiff’s motion to remand for further
proceedings before the Commissioner, filed November 17, 2010, and
plaintiff’s motion for summary judgment, filed November 19, 2010.

In her Proposed Findings and Recommendation (“PF&R”)
filed March 16, 2011, the magistrate judge recommends that the
court reverse the Commissioner’s final decision and remand the
claim for consideration of new evidence pursuant to the sixth
sentence of 42 U.S.C. § 405(g).

The magistrate judge offers a

detailed analysis respecting, inter alia, why the new evidence
identified by plaintiff is relevant and material and why there is
good cause for plaintiff’s failure to submit the evidence when
the claim was before the Commissioner.

Based on her proposed findings, the magistrate judge
recommends that the court grant plaintiff’s motion to remand
insofar as plaintiff requests remand, but deny plaintiff’s
request that the court order the Commissioner to call a medical
expert.

The magistrate further recommends that the court deny

without prejudice plaintiff’s motion for summary judgment.
Neither plaintiff nor the Commissioner have objected to the PF&R.

Having reviewed the matter de novo, it is ORDERED as
follows:
1.

That the PF&R be, and it hereby is, adopted by the
court and incorporated herein;

2.

That plaintiff’s motion for remand be, and it hereby
is, granted insofar as she requests remand to the
Commissioner for consideration of new evidence and
denied insofar as she requests that the court order the
Commissioner to call a medical expert;

3.

That the decision of the Commissioner be, and it hereby
is, reversed and this claim is remanded to the
Commissioner for consideration of new evidence pursuant
to the sixth sentence of 42 U.S.C. § 405(g), which
proceedings shall include consideration of, and
discussion by, the Administrative Law Judge of the
2

matters set forth in the PF&R at pages 6 to 10;

4.

That plaintiff’s motion for summary judgment be, and it
hereby is, denied without prejudice; and

5.

That this matter be, and it hereby is, dismissed and
stricken from the docket.

The Clerk is directed to forward copies of this written
opinion and order to all counsel of record and any unrepresented
parties.
DATED: April 11, 2011

John T. Copenhaver, Jr.
United States District Judge

3