Summary
finding the ALJ's decision to rely on the medical-vocational guidelines instead of obtaining testimony from a VE was unsupported by substantial evidence where he had found the plaintiff to have "mild to moderate difficulties as to her concentration"
Summary of this case from Hall v. BerryhillOpinion
Civil Action No.: 08-2678-TLW-JRM.
February 10, 2010
ORDER
Plaintiff has brought this action to obtain judicial review of a final decision of the defendant, Commissioner of Social Security, denying his claims for disability benefits. This matter is before the Court for review of the Report and Recommendation ("the Report") filed by United States Magistrate Judge Joseph R. McCrorey, to whom this case had previously been assigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(a), (D.S.C.). In the Report, the Magistrate Judge recommends that this action be remanded to the Commissioner to obtain testimony from a VE and to consider Plaintiff's credibility in light of all of the evidence. (Doc. # 32). The Report was filed on August 31, 2009. The defendant filed an objection on September 8, 2009. (Doc. # 33). The plaintiff filed a response to the defendant's objections on September 15, 2009. (Doc. # 34).
In conducting this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party may file written objections . . . The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination. The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the Report and Recommendation to which no objections are addressed. While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case, the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or recommendations.Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and the objections. After careful review of the Report and objections thereto, the Court ACCEPTS the Report. (Doc. # 32). Therefore, for the reasons articulated by the Magistrate Judge, the Commissioner's decision is REVERSED pursuant to sentence four of 42 U.S.C. §§ 405(g) and 1383(c)(3) and the case is REMANDED to the Commissioner for further administrative action as set out by the Magistrate Judge.
IT IS SO ORDERED.