IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JASON T. YOUNG, :

Plaintiff, :

vs. CA 05-0400-CG-C

:

JO ANNE B. BARNHART,

Commissioner of Social Security, :

Defendant.

REPORT AND RECOMMENDATION

The Commissioner has moved for entry of judgment under sentence

four of 42 U.S.C. § 405(g) with remand of this cause for further administrative

proceedings. (Doc. 16)

The Commissioner believes that further administrative

action is warranted in this case. The Administrative Law Judge

(ALJ) failed to identify which impairments he found to be

severe, failed to include mental limitations in Plaintiff’s residual

functional capacity assessment, and exclusively relied upon the

Medical-Vocational Guidelines to direct a conclusion that

Plaintiff was not disabled.

Accordingly, upon remand by the Court, the

Commissioner will direct an ALJ to identify the impairments

that are found to be severe, determine Plaintiff’s mental

limitations, if any, and include them in the residual functional

capacity assessment, and if Plaintiff is found to have a severe

mental impairment, to obtain testimony from a vocational expert

to determine the impact of Plaintiff’s mental limitations on his

ability to perform other work.

Case 1:05-cv-00400-CG-C Document 17 Filed 03/09/06 Page 1 of 4
1 Oral argument in this case, presently scheduled for April 26, 2006 (Doc. 15), is

CANCELED.

2

(Id. at 1-2)

The motion to remand reveals that counsel for the defendant, Patricia

N. Beyer, Esquire, notified plaintiff’s counsel, Byron A. Lassiter, Esquire, of

the contents of the motion and was advised by plaintiff’s counsel that the

plaintiff would interpose no objection to the motion to remand. (Id.) 

In light of the foregoing, and the plain language of sentence four of 42

U.S.C. § 405(g) empowering this Court “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[,]” the Magistrate Judge recommends that this cause

be reversed and remanded pursuant to sentence four of § 405(g), see

Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991),

for further proceedings. The remand pursuant to sentence four of § 405(g)

makes the plaintiff a prevailing party for purposes of the Equal Access to

Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct.

2625, 125 L.Ed.2d 239 (1993), and terminates this Court’s jurisdiction over 

this matter.1

The attached sheet contains important information regarding objections

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to the report and recommendation of the Magistrate Judge.

DONE this the 8th day of March, 2006.

s/WILLIAM E. CASSADY 

 UNITED STATES MAGISTRATE JUDGE 

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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within ten days of the date of service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). The procedure for challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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