Gandee v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER adopting and incorporating the 17 Proposed Findings and Recommendation by Magistrate Judge; Plaintiff's 14 request for a remand is granted; Defendant's 15 request to affirm the decision of the Commiss ioner is denied; the decision of the Commissioner is reversed; this action is remanded pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings which shall include consideration of the necessity of plaintiff's use of a cane and its effect on his residual functional capacity, and as more fully set forth in the magistrate judge's Proposed Findings and Recommendation. Signed by Judge John T. Copenhaver, Jr. on 4/4/2017. (cc: counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
GARRY LEE GANDEE,
Plaintiff,
v.

Civil Action No. 16-6767

NANCY A. BERRYHILL,
Acting Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
The court having received the Proposed Findings and
Recommendation of United States Magistrate Judge Omar J.
Aboulhosn, entered on February 7, 2017; and the magistrate judge
having recommended that the court reverse the final decision of
the Commissioner,1 grant plaintiff’s motion in Support of
Judgment on the Pleadings to the extent it requests remand; and
the magistrate judge having further recommended that the court
deny the Commissioner’s motion in Support of the Defendant’s
Decision, reverse the final decision of the Commissioner, remand
this case for further proceedings, and dismiss this matter from

While Carolyn W. Colvin was the Acting Commissioner of Social
Security when plaintiff commenced this action, Nancy Berryhill
became the Acting Commissioner on January 23, 2017.
1

UNITED STATES DISTRICT COURT
the court’s docket; and no objection having been filed to the
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
Proposed Findings and Recommendation, it is ORDERED that:
THOMAS PARKER,
Plaintiff,
1. The findings made in the Proposed Findings and
v.
Civil Action No. 15-14025
Recommendation of the magistrate judge be, and they hereby are,
THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
adopted by the court and incorporated herein;
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation,for a remand be, and it hereby
2. Plaintiff’s request and
DOES 1 THROUGH 10, inclusive,
is, granted;
Defendants.
3. Defendant’s request to AND NOTICE decision of the
ORDER affirm the
Commissioner be, and it hereby is, denied;
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
4. The decision of the Commissioner be, and it hereby
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
is, reversed;
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
prejudice pursuant to L.R. remanded pursuant
5. This action be, and it hereby is, Civ. P. 7.1 (a)).
02/08/2016
Last day for Rule 26(f) meeting.
to sentence four of 42 U.S.C. § 405(g), for further proceedings
02/15/2016
Last day to file Report of Parties= Planning
which shall include Meeting. See L.R.the necessity of
consideration of Civ. P. 16.1.
plaintiff’s use of a cane and its effect on his residual the Robert C.
02/22/2016
Scheduling conference at 4:30 p.m. at
Byrd United States Courthouse in Charleston, before
functional capacity, and as more fully set forth in the
the undersigned, unless canceled. Lead counsel
directed to appear.
magistrate judge’s Proposed Findings and Recommendation.
02/29/2016
Entry of scheduling order.
03/08/2016
The Clerk Lastdirected serve F.R. Civ. P 26(a)(1) disclosures.
is day to to forward copies of this
written opinion The Clerk is requested to of record this the
and order to all counsel transmit and Order and
Notice to all counsel of record and to any unrepresented
United States Magistrate Judge.
parties.
DATED: January 5, 2016
DATED: April 4, 2017
John T. Copenhaver, Jr.
United States District Judge