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)

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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

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