Baker v. Colvin

Filing 17

ORDER ADOPTING 16 REPORT AND RECOMMENDATION recommending that the Commissioner's decision denying Plf's applications for benefits be reversed & remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings as set out. Signed by Senior Judge Callie V. S. Granade on 1/6/2017. (srd) Copy to Social Security.

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ANDREW BAKER, Plaintiff, vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION 16-0198-CG-M ORDER After due and proper consideration of the issues raised, and there having been no objections filed, the Recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated December 22, 2016 is adopted as the opinion of this Court. It is ORDERED that the Commissioner’s December 24, 2014 final decision denying Plaintiff’s applications for disability benefits be REVERSED and REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g) (see Melkonyan v. Sullivan, 501 U.S. 89 (1991)) for further proceedings consistent with this memorandum opinion. This remand under sentence four of § 405(g) makes Plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412 (see Shalala v. Schaefer, 509 U.S. 292 (1993)), and terminates this Court’s jurisdiction over this matter. Should Plaintiff succeed on his applications for benefits following remand, under Fed. R. Civ. P. 54(d)(2)(B), the Court hereby grants Plaintiff’s counsel an extension of time in which to file a petition for authorization of attorney’s fees under 42 U.S.C. § 406(b) until thirty-five days after the date of the notice of award of benefits from the SSA. See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam) (“Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim.”); Blitch v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam) (unpublished) (“In Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir. 2006), we suggested the best practice for avoiding confusion about the integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural framework of a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the district court to include in the remand judgment a statement that attorneys fees may be applied for within a specified time after the determination of the plaintiff's past due benefits by the Commission. 454 F.3d at 1278 n.2.”). Final judgment shall issue separately in accordance with this Order and Fed. R. Civ. P. 58. DONE and ORDERED this 6th day of January, 2017. /s/ Callie V. S. Granade SENIOR UNITED STATES DISTRICT JUDGE

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