MCCLELLAN v. ASTRUE, No. 1:2008cv00177 - Document 21 (N.D. Fla. 2009)

Court Description: REPORT AND RECOMMENDATION re 20 MOTION to Remand filed by MICHAEL J ASTRUE :It is RECOMMENDED that the court GRANT Defendant's motion for entry of judgment and remand, doc. 20 , DIRECT the Clerk to enter final judgment REVE RSING the Commissioner's decision to deny benefits, and REMAND the application to the Commissioner for rehearing pursuant to sentence four of 42 U.S.C. §405(g) for the purposes stated in the motion. Internal deadline for referral to district judge if objections are not filed earlier: 12/16/2009. R&R flag set. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 11/18/09. (dlt)
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MCCLELLAN v. ASTRUE Doc. 21 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION ANITA VERDELL McCLELLAN, Plaintiff, vs. Case No. 1:08cv177-MP/WCS MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant. _____________________________/ REPORT AND RECOMMENDATION The Defendant has moved for reversal of the decision of the Commissioner, entry of judgment pursuant to sentence four of 42 U.S.C. § 405(g), and remand of this cause to the Commissioner. Doc. 20. Plaintiff does not oppose a sentence four remand and the motion should be granted. A sentence four remand is discretionary, but requires that the court enter "a judgment affirming, modifying, or reversing the decision of the Commissioner." The proper option in this case is to reverse the Commissioner's decision and remand. Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991). Dockets.Justia.com Page 2 of 2 Accordingly, it is RECOMMENDED that the court GRANT Defendant's motion for entry of judgment and remand, doc. 20, DIRECT the Clerk to enter final judgment REVERSING the Commissioner's decision to deny benefits, and REMAND the application to the Commissioner for rehearing pursuant to sentence four of 42 U.S.C. § 405(g) for the purposes stated in the motion. IN CHAMBERS at Tallahassee, Florida, on November 18, 2009. s/ William C. Sherrill, Jr. WILLIAM C. SHERRILL, JR. UNITED STATES MAGISTRATE JUDGE NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations. Case No. 1:08cv177-MP/WCS