Holcomb v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER that: (1) the Commissioner's 16 Motion to Remand is granted; (2) the decision of the Commissioner is Reversed and Remanded as further set out in order; (3) upon receiving notice of any entitlement to past-due benefits, plaintiff shall have sixty (60) days in which to seek attorney's fees. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 9/11/08. (Furnished to Judge Thigpen and Bill Waxman)(sl, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION C A S E Y E. HOLCOMB, P la in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 1:08cv60-WC

M E M O R A N D U M OPINION AND ORDER P e n d in g before the Court is the Commissioner of Social Security's Motion to Remand p u rsua n t to sentence four1 of 42 U.S.C. § 405(g) (2000) and Federal Rule of Civil Procedure (F R C P ) 58. Def.'s Mot. Remand (Doc. #16). The Commissioner states remand is necessary b e c au s e the Administrative Law Judge ("ALJ") failed to "follow the `special technique' for a ss e ss in g claims of mental limitations" which is set forth in the Code of Federal Regulations a t 20 C.F.R. § 416.920a(b) through (e). See Moore v. Barnhart, 405 F.3d 1208, 1213-14

Defendant's motion erroneously characterizes the Motion for Remand as made "pursuant to sentence six of section 205(g)." (Doc. #16). Sentence six of 42 U.S.C. § 405(g) "provides a federal court the power to remand the application for benefits to the Commissioner for the taking of additional evidence upon a showing `that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." Ingram v. Comm. of Social Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)(quoting § 405(g)). Defendant's request for remand, however, appears predicated on sentence four of § 405(g), which permits the Court to reverse and remand when the record of prior proceedings reveals error in the agency's determinations. Indeed, Defendant's memorandum in support of the motion accurately requests a remand "under sentence four of 42 U.S.C. § 405(g)," (Doc. #17 at 2). Accordingly, the Court construes Defendant's motion as one requesting remand pursuant to sentence four of § 405(g).

1

(1 1 th Cir. 2005). The Commissioner asserts application of the "special technique" was re q u ire d because "Plaintiff has obtained IQ scores lower than 70, which could implicate the lis tin g for mental retardation found at 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05D (2008)." D e f . Mem. Supp. Mot. Remand (Doc. #17) at 1. The Commissioner further indicates that, u p o n this Court's remand, the Appeals Council will remand this matter to the ALJ for a d d itio n a l record development, including obtaining a "mental status examination with p s yc h o lo g ic a l testing" and other consultative examinations, and application of the required " s p e c ia l technique." Defendant's Mem. Supp. Mot. Remand (Doc. #17) at 1. This Court entered an order directing Plaintiff to show cause why the motion to re m a n d should not be granted. Order (Doc. #18). Holcomb filed a Response on September 9 , 2008, voicing no objection to Defendant's Motion to Remand. Plf.'s Response (Doc. #19) a t 1. Sentence four of 42 U.S.C. § 405(g) authorizes the district court to "enter, upon the p le a d in g s and transcript of the record, a judgement affirming, modifying, or reversing the d e c is io n of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The district court may remand a case to the Commissioner

f o r a rehearing if the court finds "either . . . the decision is not supported by substantial e v id e n c e, or . . . the Commissioner or the ALJ incorrectly applied the law relevant to the d is a b ility claim." Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996); see Carril v. B a r n h a r t, 201 F. Supp. 2d 1190, 1192 (N.D. Ala. 2002) (reversing the Commissioner's

2

d e c is io n and remanding the case for further proceedings, where the Commissioner's decision w as not supported by substantial evidence). I n this case, the Commissioner acknowledges the ALJ failed to apply the correct s ta n d a rd in evaluating Plaintiff's claim, but that this error was not recognized by the C o m m is s io n e r until the matter reached briefing in this Court. Def. Mem. Supp. Rem. (Doc. # 1 7 ) at 2. The Commissioner also states remand is required to permit additional record d e v e lo p m e n t through obtaining records, psychological testing, and consultative e x a m in a tio n s . The Court finds reversal and remand necessary here, as Defendant concedes p ro p e r application of governing law and further development of the record is required. U p o n consideration of the Motion (Doc. #16) and Holcomb's response (Doc. #19), it is O R D E R E D that: 1. 2. The Commissioner's Motion to Remand (Doc. #16) is GRANTED. T h e decision of the Commissioner is REVERSED and REMANDED for f u rth e r proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and for th e reasons set forth in Defendant's Brief in Support of its Motion to Remand (D o c. #16, #17). 3. U p o n receiving notice of any entitlement to past-due benefits, Plaintiff shall h a v e sixty (60) days in which to seek attorney's fees under 42 U.S.C. §

3

4 0 6 (b).2 A separate judgment will issue. D O N E this 11th day of September, 2008. / s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

2

See Blitch v. Astrue, 261 Fed. Appx. 241, 242 n.1 (11th Cir. 2008). 4