IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Allen G. Holmes, :

Plaintiff, :

v. : Case No. 2:12-cv-680

 : JUDGE GREGORY L. FROST 

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

REPORT AND RECOMMENDATION

On July 21, 2006, plaintiff Allen G. Holmes filed an

application for social security disability benefits. An

Administrative Law Judge found that plaintiff was insured for

disability purposes through December 31, 2007, and that he had

severe impairments. However, the ALJ also found that those

impairments were not disabling and that plaintiff could do his

past work as a laminator. The Appeals Council denied review, and

plaintiff filed this case.

After plaintiff submitted his statement of specific errors,

the Commissioner moved to remand the case for purposes of

conducting further administrative proceedings and issuing a new

decision. In particular, the Commissioner requested an order

directing the Appeals Council to remand the case to the ALJ for

purposes of holding a new administrative hearing and reassessing

plaintiff’s credibility with respect to the side effects of his

medication. 

Shortly after the Commissioner moved for a remand, plaintiff

filed his own motion to remand. He agrees with the Commissioner

that remand is appropriate, but he disagrees that the scope of

the remand order should be as narrow as the Commissioner

suggests. While not specifically identifying, in his motion, any

Case: 2:12-cv-00680-GLF-TPK Doc #: 26 Filed: 06/17/13 Page: 1 of 3 PAGEID #: <pageID>
additional matters which he believes the ALJ should address on

remand, he asks the Court to include language in the remand order

directing the ALJ to “consider any other issues relating to

Plaintiff’s claim.” (Doc. 25, at 2). He cites to 20 C.F.R.

§404.983, which states that, when a case is remanded from federal

court and then further remanded by the Appeals Council, “[a]ny

issues relating to your claim may be considered by the

administrative law judge whether or not they were raised in the

administrative proceedings leading to the final decision in your

case.” Plaintiff also notes that, in addition to the credibility

issue, his statement of errors raises claims about the ALJ’s

failure to obtain testimony from a medical expert and the

thoroughness of the ALJ’s residual functional capacity

assessment. The Commissioner has not responded to plaintiff’s

motion.

The language of §404.983 suggests that in the context of a

federal court remand, an ALJ should have the freedom to consider

any issues which relate to the claim for benefits. At least one

court has observed that “there is no good reason why this Court

should need to referee the scope of a voluntary remand order when

the Commissioner retains complete decision-making discretion on

remand,” an observation consistent with not specifying any

limitations on scope in the remand order. See Thibodeau v.

Social Sec. Admin. Com'r, 2011 WL 4344561, *1, at 2 (D. Me. Sept.

13, 2011), aff’d 2011 WL 4597501 (D. Me. Oct. 3, 2011). This

Court agrees. It therefore recommends that both motions for

remand be granted, and that the order of remand simply specify

that the Commissioner shall conduct further proceedings

including, but not limited to, remanding the matter to an ALJ for

a new hearing and a new credibility assessment.

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

-2-

Case: 2:12-cv-00680-GLF-TPK Doc #: 26 Filed: 06/17/13 Page: 2 of 3 PAGEID #: <pageID>
party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

-3-

Case: 2:12-cv-00680-GLF-TPK Doc #: 26 Filed: 06/17/13 Page: 3 of 3 PAGEID #: <pageID>