Green v. Social Security Administration, Commissioner

Filing 8

MEMORANDUM OPINION AND ORDER GRANTING 6 MOTION to Remand under sentence six of 42 U.S.C. §405(g). Accordingly, the decision of the Commissioner is hereby REVERSED and this action is REMANDED to the Commissioner for further proceedings as set out herein. Signed by Judge Virginia Emerson Hopkins on 10/10/2012. (JLC)

FILED
2012 Oct-10 PM 02:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MELINDA ANN GREEN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSION,
SOCIAL SECURITY
ADMINISTRATION,
Defendant.

)
)
)
)
) Case No.: 4:12-CV-1994-VEH
)
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
Pending before the court is the Commissioner’s Motion for Remand Under
Sentence Six of § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (Doc. 6) (the
“Motion to Remand”) filed on October 4, 2010. The Commissioner contends that
reversal and remand is appropriate because “[s]ignificant portions of the recording
of the hearing held on August 10, 2010 are inaudible.” (Doc. 6-1 at 2.) The
Commissioner further points out that “the joint conference committee of Congress in
reporting upon the Social Security Disability Amendments of 1980 . . . [indicated
that] in some cases procedural difficulties, such as an inaudible hearing tape or a lost
file, necessitate a request for remand by the Commissioner.” (Doc. 6-1 at 1–2.)

On October 5, 2012, Plaintiff was ordered to show cause by October 19, 2012,
why the Commissioner’s Motion to Remand should not be granted. On October 8,
2012, Plaintiff filed her response, indicating that she “has no objection to remand.”
(Doc. 7 at 1) (emphasis added). Furthermore, Plaintiff’s attorney asserted that the
attorneys in her office will “routinely” not object to a motion to remand by the
Commissioner and will plainly tell the Commissioner their position over the phone.
(Doc. 7 at 1.) Therefore, the court points out that, if the Commissioner’s attorney had
bothered to call the Plaintiff’s attorney before filing the Motion to Remand, he could
have saved the Plaintiff and the court time and resources.
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, 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)). Under Sentence Six of 42 U.S.C. § 405(g), “[t]he court may, on motion
of the Commissioner of Social Security made for good cause shown before the
Commissioner files the Commissioner's answer, remand the case to the Commissioner
of Social Security for further action by the Commissioner of Social Security . . . .”
42 U.S.C.A. § 405(g).
In light of Plaintiff’s decision not to contest the remand and otherwise for good
2

cause shown, the Commissioner’s Motion to Remand is 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.

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

3

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 10th day of October, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

4