Opinion
Case No. 3:18-CV-209
09-09-2019
BENITA R. SCHIRMER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Magistrate Judge Michael J. Newman ENTRY AND ORDER OVERRULING, IN PART, OBJECTIONS (DOC. 17), ADOPTING, IN PART, REPORT AND RECOMMENDATION (DOC. 16), REVERSING THE COMMISSIONER'S NON-DISABILITY FINDING, REMANDING THE MATTER TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION, AND TERMINATING THIS CASE
This Social Security disability benefits appeal is before the Court on the Objections (Doc. 17) filed by the Commissioner of Social Security ("Commissioner") to Magistrate Judge Michael J. Newman's Report and Recommendation ("Report") (Doc. 16). Magistrate Judge Newman recommended that (1) the Administrative Law Judge's non-disability finding be found unsupported by substantial evidence in the record and reversed; (2) this matter be remanded under the Fourth Sentence of 42 U.S.C. § 405(g) for an immediate award of benefits; and (3) this case be terminated on the Court's docket. (Doc. 16 at PAGEID # 1220.) The Commissioner filed Objections (Doc. 17) to the Report, in response to which Plaintiff Benita R. Schirmer filed a Response (Doc. 18). This matter is ripe for review.
As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), the Court has made a de novo review of the record in this case. Upon said review, the Court finds that the Commissioner's Objections (Doc. 18) to the Report (Doc. 17) are not well-taken with respect to the Report's recommendation that the Administrative Law Judge's non-disability finding be found unsupported by substantial evidence in the record and reversed; in that respect, the Objections are hereby OVERRULED. However, the Court agrees with the Objections with respect to the Report's recommendation that this matter be remanded under the Fourth Sentence of 42 U.S.C. § 405(g) for an immediate award of benefits. While the Court agrees with the Report's recommendation that the matter be remanded under the Fourth Sentence of 42 U.S.C. § 405(g), it disagrees that an immediate award of benefits should be made upon remand. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994); see also Wert v. Comm'r of Soc. Sec., No. 1:17-cv-477, 2018 U.S. Dist. LEXIS 152141, at *52-53 (S.D. Ohio Aug. 16, 2018) (Litkovitz, M.J.), adopted, 2018 U.S. Dist. LEXIS 151553 (S.D. Ohio Sept. 6, 2018) (finding ALJ erred in weighing the opinion of treating doctor, and reversing and remanding the matter for further proceedings with instructions to the ALJ to reweigh the opinion of the treating doctor and properly evaluate the evidence and assessments).
The matter shall be remanded for further proceedings consistent with this Order and with Section III of the Report (Doc. 16 at PAGEID # 1215-19)—including, but not limited to, the Report's statement on PAGEID # 1215 that "the undersigned would direct that the ALJ consider these alleged errors anew on remand." Those "alleged errors" are "(2) weighing the opinion(s) of examining physician Amita Oza, M.D.; and (3) finding [Plaintiff's] husband's testimony not credible." (Id.) Of course, the ALJ is also directed to correct the error found in the Report concerning "(1) weighing the opinion(s) of treating physician A. Patrick Jonas, M.D," i.e., the ALJ should reweigh the opinion of Dr. Jonas in accordance with the instruction set forth on PAGEID # 1215-19 in the Report. (Id.)
Therefore, the Court ADOPTS, in part, the Report (Doc. 16) and rules as follows:
1. The Administrative Law Judge's non-disability finding is unsupported by substantial evidence and REVERSED;
2. This case is REMANDED to the Commissioner under the Fourth Sentence of 42 U.S.C. § 405(g) for further proceedings consistent with this Order and with Section III of the Report (Doc. 16 at PAGEID # 1215-19); and
3. This case is TERMINATED on the docket of this Court.
DONE and ORDERED in Dayton, Ohio, this Monday, September 9, 2019.
s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE