Jefferson v. Astrue, No. 4:2008cv00040 - Document 22 (E.D. Va. 2009)
Court Description: OPINION and ORDER adopting and approving in full the findings and recommendations set forth in the Magistrate Judge's 21 Report and Recommendations; vacating the final decision of the Commissioner and remanding for further administrative proce edings consistent with the Report and Recommendation. Signed by District Judge Henry C. Morgan, Jr. and filed on 5/26/09. Copies ECF to counsel; mailed to SSA Office of Disability, Adjudication and Review w/copy of R&R 5/27/09.(mwin, ) Modified on 5/27/2009 to remove "and" after "vacating." (mwin, )
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FILED UNITED STATES DISTRICT COURT MAY 2 6 2003 EASTERN DISTRICT OF VIRGINIA Newport News Division CLERK. U.S. DISTRICT COURT DONNELL JEFFERSON, NORFOLK VA Plaintiff, v. Civil Action No.: 4:08cv40 COMMISSIONER OF SOCIAL SECURITY, Defendant. OPINION AND ORDER Plaintiff brought this action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(l)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia, and by order of reference dated August 23, 2008, this matter was referred to a United States Magistrate Judge for a Report and Recommendation. The Report and Recommendation of the Magistrate Judge ("R&R"), filed on May 1, 2009, finds that the Administrative Law Judge's ("ALJ") determination that Plaintiff is not disabled is not fully supported by substantial evidence. Doc. 21. Specifically, the Magistrate Judge finds that the ALJ's determination was not fully supported by substantial evidence because the ALJ: (1) failed to have a vocational expert present to testify; (2) failed to discuss the alleged side effects in the decision; (3) ignored evidence that Plaintiffs physician observed limitations on Plaintiffs ability to sit; (4) arbitrarily weighed an early diagnosis over several consistent diagnoses later in time; (5) ignored the abundant evidence of prescription paid medication and narcotics; and (6) improperly relied on Plaintiffs justified refusal of surgery on his right knee. See id at 10-21. Accordingly, the Magistrate Judge recommended that the ALJ's finding regarding Plaintiffs credibility be vacated and remanded. Id at 21. Specifically, the Magistrate Judge recommended that the fact-finder must: (1) determine whether the side effects from the medication, considered in conjunction with the knee pain, affect Plaintiffs RFC to work; (2) involve a vocational expert in a manner consistent with Section B of the R&R; (3) reevaluate the weight attributed to the physicians' opinions pursuant to Section C of the R&R; and (4) reevaluate Plaintiffs credibility regarding the nature and intensity of his symptoms pursuant to Section D of the R&R. Id By copy of the R&R, each party was advised of the right to file written objections to the findings and recommendations made by the Magistrate Judge within ten (10) days from the date the R&R was mailed, pursuant to Rule 6(a) of the Federal Rules of Civil Procedure. The time for filing written objections has now passed, and neither party has filed objections. As indicated in the R&R, "failure to file timely objections to the findings and recommendations set forth [in the R&R] will result in a waiver of the right to appeal from a judgment of this court based on such findings and recommendations." Id at 22. This Court has reviewed the R&R of the Magistrate Judge and hereby adopts and approves in full the findings and recommendations set forth therein. Accordingly, it is hereby ORDERED that the final decision of the Commissioner be VACATED and REMANDED for further administrative proceedings consistent with the R&R. The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of record. It is so ORDERED. -2- /s/ Henry Coke Morgan, Jr. Senior United States District Judge HENRY COKE MORGAN, SENIOR UNITED STATES DISTRICT JUDGE Norfolk, Virginia May J2.£, 2009 -3-
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