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, )

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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

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