UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

David Thomas Terwilliger,

Plaintiff,

v. Case No. 1:18cv11

Commissioner of Social Security Judge Michael R. Barrett 

Defendant.

OPINION & ORDER

This matter is before the Court upon the Magistrate Judge’s January 28, 2019, 

Report and Recommendation (“R&R”) recommending that the decision of the 

Commissioner be reversed and remanded to permit Plaintiff to withdraw his application 

for retirement benefits. (Doc. 23).

When objections are received to a magistrate judge’s report and recommendation 

on a dispositive matter, the district judge “must determine de novo any part of the 

magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 

72(b)(3). After review, the district judge “may accept, reject, or modify the recommended 

disposition; receive further evidence; or return the matter to the magistrate judge with 

instructions.” Id.; see also 28 U.S.C. § 636(b)(1). Notice was given to the parties under 

28 U.S.C. ' 636(b)(1)(c). Plaintiff filed objections to the Magistrate Judge=s R&R in the 

form of a Motion to Clarify. (Doc. 24). 

The Magistrate Judge completed a comprehensive review of the record and the 

same will not be repeated here. 
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Plaintiff maintains that the Magistrate Judge’s R&R was in error because it did not 

provide guidance on how reversal might be accomplished; and in order to be made whole, 

Plaintiff and his spouse must be permitted to retroactively take all actions they would have 

been entitled to take had Plaintiff’s withdraw request been timely approved in 2011 or 

2012. In addition, Plaintiff argues that the costs of this action should be borne by the 

Commissioner.

This Court’s review of the ALJ's decision is limited to “whether the ALJ applied the 

correct legal standards and whether the findings of the ALJ are supported by substantial 

evidence.” Blakley v. Comm'r Of Soc. Sec., 581 F.3d 399, 405-406 (6th Cir. 2009); see 

also 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the pleadings and 

transcript of the record, a judgment affirming, modifying, or reversing the decision of the 

Commissioner of Social Security, with or without remanding the cause for a rehearing.”). 

In addition, the Court cannot address any claim of Plaintiff’s spouse because those claims 

are not before this Court.

Finally, Plaintiff is not entitled to costs and attorney fees. Under the Equal Access 

to Justice Act (“EAJA”), “a court shall award to a prevailing party” in a civil action against 

the United States “fees and other expenses . . . unless the court finds that the position of 

the United States was substantially justified or that special circumstances make an award 

unjust.” Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 498 (6th Cir. 2014) (quoting 28 

U.S.C. § 2412(d)(1)(A)). However, attorney's fees for pro se litigants are not authorized 

under the EAJA. Sheffield v. Sec'y of Health & Human Servs., 983 F.2d 1068 (6th Cir. 

1992) (collecting cases). To the extent that Plaintiff is entitled to other expenses, his 

request is premature. See 28 U.S.C. § 2412(d)(1)(B) (“party seeking award of fees and 
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other expenses shall, within thirty days of final judgment in the action, submit to the court” 

an application for reimbursement.”); and 28 U.S.C. § 2412(d)(2)(G) (defining “final 

judgment” as “a judgment that is final and not appealable, and includes an order of 

settlement”).

Based on the foregoing, the Court ADOPTS the Magistrate Judge’s January 28, 

2019 R&R (Doc. 23). Accordingly, the decision of the Commissioner is REVERSED and

REMANDED to permit Plaintiff to withdraw his application for retirement benefits. 

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett, Judge

United States District Court