Curry v. Astrue

Filing 27

MEMORANDUM OPINION AND ORDER that: 1. The Commissioner's 23 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 se t forth in Defendant's Brief in Support of its Motion to Remand (Doc. 24 , 25 ). 3. Upon receiving notice of any entitlement to past-due benefits, Plaintiff shall have sixty (60) days in which to seek attorney's fees under 42 U.S.C. 406(b). A separate judgment will issue. Signed by Honorable Wallace Capel, Jr. on 1/13/2009. (dmn)

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 MERCEDES Y. CURRY, 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. 1:08cv382-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. #23). The Commissioner states remand is necessary f o r further development of the record and subsequent reconsideration of the Administrative L a w Judge's determination that Plaintiff can return to her past relevant work as a tra n sp o rta tio n manager. Def.'s Memorandum in Support of Mot. To Remand (Doc. #24 at 1 ). T h is Court entered an Order (Doc. #25) directing Plaintiff to show cause why the m o tio n to remand should not be granted. Plaintiff filed a Response (Doc. #26) on January 1 2 , 2009, 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 l e 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 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). In this case, the Commissioner acknowledges that further development of the record a n d reconsideration by the ALJ is required. Def. Mem. Supp. Rem. (Doc. #24) at 1. A c c o rd in g ly, the Court finds reversal and remand necessary. U p o n consideration of the Motion (Doc. #23) and Plaintiff's response (Doc. #26), it is O R D E R E D that: 1. 2. The Commissioner's Motion to Remand (Doc. #23) 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. #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. §

2

4 0 6 (b).1 A separate judgment will issue. D O N E this 13th day of January, 2009.

/ 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