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.

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.

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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(unpublished) (“In Bergen v. Comm'r of Soc.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