Key v. Astrue (CONSENT)

Filing 28

MEMORANDUM OPINION AND ORDERED that: (1) The 24 Motion to Remand is GRANTED; (2) The decision of the Commissioner is REVERSED AND REMANDED for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and for the reasons set forth i n Defendants 25 Brief in Support of its Motion to Remand; and (3) Upon receiving notice of any entitlement to past-due benefits, Plaintiff have sixty days in which to seek attorney's fees as further set out. A separate judgment will issue. Signed by Honorable Wallace Capel, Jr on 12/15/2008. (cb, )

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 N A N C Y KEY, 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. 1:08cv217-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 four of 42 U.S.C. § 405(g) (2000) and Federal Rule of Civil Procedure (F R C P ) 58. Def.'s Mot. Remand (Doc. #24). The Commissioner states remand is necessary f o r further consideration in light of errors by the Administrative Law Judge in adjudicating P lain tiff 's claim of disability. The Commissioner further indicates that, upon this Court's re m a n d , the Appeals Council will remand this matter to the ALJ "who will be instructed to re e v a lu a te the evidence as it pertains to Plaintiff's [residual functional capacity] and, if w a rra n te d , obtain evidence from a vocational expert." (Doc. #25 at 2) T h is Court entered an Order (Doc. #26) directing Plaintiff to show cause why the m o tio n to remand should not be granted. Plaintiff filed a Response (Doc. #27) on December 9 , 2008, voicing no objection to the Motion to Remand. 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 i d en 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 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 properly reconcile e v id e n c e of Plaintiff's exertional and non-exertional limitations with his ultimate d e te rm in a tio n respecting her residual functional capacity, but that this error was not re c o g n iz e d by the Commissioner until the matter reached briefing in this Court. Def. Mem. S u p p . Rem. (Doc. #25) at 2. The Court finds reversal and remand necessary here, as D e f en d a n t concedes proper application of governing law and possible further development o f the record through the testimony of a vocational expert is required. U p o n consideration of the Motion (Doc. #24) and Plaintiff's response (Doc. #27), it is O R D E R E D that: 1. 2. The Commissioner's Motion to Remand (Doc. #24) is GRANTED. T h e decision of the Commissioner is REVERSED and REMANDED for

2

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. #24, #25). 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. § 4 0 6 (b).1 A separate judgment will issue. D O N E this 15th day of December, 2008.

/ s / Wallace Capel, Jr. W A L L A C E CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE

1

See Blitch v. Astrue, 261 Fed. Appx. 241, 242 n.1 (11th Cir. 2008). 3