Johnson v. Social Security Administation, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 10/31/2012. (JLC)

FILED
2012 Oct-31 PM 01:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MISTY JOHNSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

)
)
)
)
) Case No.: 4:12-CV-918-VEH
)
)
)
)
)
)
)

MEMORANDUM OPINION
THIS CAUSE is before the court on the Commissioner’s “Motion for Entry of
Judgment Under Sentence Four of 42 U.S.C. § 405(g) with Remand of the Cause to
Defendant.” (Doc. 9). The Commissioner contends that reversal and remand is
appropriate so that an Administrative Law Judge (“ALJ”) can further consider
medical evidence and provide additional analysis. Specifically, the ALJ will:
further consider the claimant’s maximum residual functional capacity,
assessing limitations on a function-by-function basis and citing specific
evidence supporting the assessed limitations; and . . . secure
supplemental evidence from the vocational expert to clarify the effect of
the assessed limitations on the claimant’s occupational base, and
identify examples of occupations which the claimant could perform
consistent with her assessed limitations. In doing so, the Administrative
Law Judge will pose hypotheticals to the vocational expert which clearly

articulate all of the claimant’s limitations.
(Doc. 9-1 at 2.) On October 16, 2012, Plaintiff was ordered to show cause by
October 30, 2012, why the Commissioner’s motion should not be granted. That
time has passed. Plaintiff did not file a response to the show cause order.
Plaintiff’s failure to respond is deemed to be an assent to the remand of this
action to the Commissioner. See Resolution Trust Corp. v. Dunmar Corp., 43
F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the district court to
distill every potential argument that could be made based upon the materials
before it . . . .”); Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030 (5th Cir. Unit B
Aug. 6, 1982)1 (generally noting that “[f]ailure to brief and argue an issue is
grounds for finding that the issue has been abandoned”). Clearly, “the onus is
upon the parties to formulate arguments” and Plaintiff did not do so. Resolution
Trust, 43 F.3d at 599; Bowden ex rel. Bowden v. Wal-Mart Stores, Inc., 124 F.
Supp. 2d 1228, 1236 (M.D. Ala. 2000) (“It is not for the court to manufacture
arguments on Plaintiff’s behalf.”).
Under Sentence Four of 42 U.S.C. § 405(g), the court has the power “to
enter, upon the pleadings and transcript of the record, a judgment affirming,

1

In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), the Eleventh
Circuit adopted as binding precedent all decisions of the Unit B panel of the former Fifth Circuit
handed down after September 30, 1981.
2

modifying or reversing the decision of the [Commissioner], with or without
remanding the cause for a rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 98
(1991) (quoting 42 U.S.C. § 405(g)). Therefore, the Commissioner’s motion is
hereby GRANTED. Accordingly, the decision of the Commissioner is hereby
REVERSED, and this action is REMANDED to the Commissioner for further
proceedings.
This order does not address Plaintiff’s arguments in favor of reversal of the
Commissioner’s final decision that gave rise to this appeal, and is entered without
prejudice to Plaintiff’s right to reassert those arguments in a subsequent appeal
should the Commissioner issue an unfavorable decision following remand.
Should this remand result in the award of benefits, Plaintiff’s attorney is
hereby granted, pursuant to Rule 54(d)(2)(B), an extension of time in which to file
a petition for authorization of attorney’s fees under 42 U.S.C. § 406(b), until the
LATER OF:

1)

THIRTY (30) DAYS subsequent to the resolution of the
request by Plaintiff’s attorney to the Social Security
Administration for authorization to charge a fee for
proceedings before the Commissioner; or

2)

THIRTY (30) DAYS subsequent to receipt by Plaintiff’s
attorney of the closeout letter required under the Program
Operations Manual System GN 03930.91.
3

The court expects that, in the usual case, a timely request for authorization
to charge a fee will be made to the Commissioner prior to the filing of a motion for
attorney’s fees under § 406(b) in this court. If Plaintiff’s attorney is not entitled to
recover a fee for work done at the administrative level, any motion filed with the
court should so state.
This order does not extend the time limits for filing a motion for
attorney’s fees under the Equal Access to Justice Act.
DONE and ORDERED this the 31th day of October, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

4