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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARLENE WHISNANT,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

 /

Case No. 09-10101

Honorable Patrick J. Duggan

OPINION AND ORDER

 At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on _March 15, 2010.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

 

On January 9, 2009, Plaintiff filed this lawsuit challenging a final decision of the

Commissioner denying her application for Social Security Disability Insurance Benefits. 

On the same day, this Court referred the case to Magistrate Judge R. Steven Whalen. On

June 18, 2009, Plaintiff filed a motion for summary judgment seeking an award of

benefits or, in the alternative, an order remanding the case to the Administrative Law

Judge for additional findings. On September 18, 2009, the Commissioner filed a motion

for summary judgment. Magistrate Judge Whalen considered both motions.

On December 29, 2009, Magistrate Judge Whalen filed his Report and
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Recommendation (“R&R”) recommending that this Court grant Plaintiff’s motion, deny

Defendant’s motion, and remand the case to the Social Security Administration for further

proceedings. At the conclusion of the R&R, Magistrate Judge Whalen advises the parties

that they may object and seek review of the R&R within 14 days of service upon them.

(R&R at 18.) He further specifically advises the parties that “[f]ailure to file specific

objections constitutes a waiver of any further right to appeal.” ( Id., citing Thomas v. Arn,

474 U.S. 140, 106 S. Ct. 466 (1985); Howard v. Sec'y of Health & Human Servs., 932

F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981)). Neither

party filed objections to the R&R.

The Court has carefully reviewed the R&R and concurs with the conclusions

reached by Magistrate Judge Whalen. In remanding the case, the Court notes that 42

U.S.C. § 405(g) authorizes only two types of remand: “(1) a post-judgment remand in

conjunction with a decision affirming, modifying, or reversing the decision of the

Secretary (a sentence-four remand); and (2) a pre-judgment remand for consideration of

new and material evidence that for good cause was not previously presented to the

Secretary (a sentence-six remand).” Faucher v. Sec’y of Health & Human Servs., 17 F.3d

171, 174 (6th Cir. 1994). Because this case does not require consideration of new

evidence that was not previously available, the remand must be made post-judgment

pursuant to sentence four of 42 U.S.C. § 405(g). Therefore, the Court reverses the

Commissioner’s denial of Plaintiff’s benefits insofar as the ALJ’s hypothetical question

to the vocational expert failed to account for Plaintiff’s psychological impairments and
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the ALJ’s decision failed to indicate whether the ALJ rejected, misread, or simply

overlooked the findings of a treating neurologist. The Court remands this matter to the

Commissioner for proceedings consistent with Magistrate Judge Whalen’s R&R.

Accordingly,

IT IS ORDERED that Plaintiff’s motion for summary judgment is GRANTED

IN PART.

IT IS FURTHER ORDERED that Commissioner’s motion for summary

judgment is DENIED.

IT IS FURTHER ORDERED that the Commissioner’s denial of Plaintiff’s

benefits is REVERSED.

IT IS FURTHER ORDERED that this matter is REMANDED to the

Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent

with Magistrate Judge Whalen’s R&R.

A judgment consistent with this order shall issue.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE 

Copies to:

Mikel E. Lupisella, Esq.

Vanessa M. Mays, AUSA