Irby v. Colvin

Filing 21

ORDER granting 18 Motion to Remand to Agency; the Commissioner's decision denying plaintiff benefits is REVERSED and this case is REMANDED for a rehearing under sentence four of §405(g). Signed by Magistrate Judge Katherine P. Nelson on 11/17/2016. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GWENDOLYN MARIE IRBY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 16-00204-N

ORDER
Plaintiff Gwendolyn Marie Irby has brought this action under 42 U.S.C. §
1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner
of Social Security (“the Commissioner”) dated March 22, 2016, denying her
application for supplemental security income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383c. With the consent of the parties, the Court
has designated the undersigned Magistrate Judge to conduct all proceedings and
order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c),
Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 19, 20).
In response to Irby’s Brief and Fact Sheet (Doc. 16) listing the specific errors
upon which she seeks reversal of the Commissioner’s decision, the Commissioner
filed a motion to remand Irby’s cause for rehearing (Doc. 18) under sentence four of
42 U.S.C. § 405(g) (“The [district ]court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the

cause for a rehearing.”),1 representing that Irby does not oppose the motion.2
Upon consideration, it is ORDERED that the Commissioner’s unopposed
motion to remand (Doc. 18) is GRANTED. The Commissioner’s March 22, 2016
final decision denying Irby SSI benefits is REVERSED and this cause is
REMANDED for a rehearing under sentence four of § 405(g). Securing a “sentence
four” remand makes Irby 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 cause.
Should Irby be awarded Social Security benefits on the subject application
following this remand, under Federal Rule of Civil Procedure 54(d)(2)(B) the Court
hereby grants Irby’s counsel an extension of time in which to file a motion for fees
under 42 U.S.C. § 406(b) (applicable to SSI claims under 42 U.S.C. § 1383(d)(2)(A))
until thirty days after the date of receipt of a notice of award of benefits from the
SSA.3 Consistent with 20 C.F.R. § 422.210(c), “the date of receipt of notice … shall

See also 42 U.S.C. § 1383(c)(3) (“The final determination of the Commissioner of Social
Security after a hearing [for SSI benefits] shall be subject to judicial review as provided in
section 405(g) of this title to the same extent as the Commissioner's final determinations
under section 405 of this title.”).

1

Sentence six of § 405(g) provides that “[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…” However, the Commissioner filed her
answer (Doc. 14) prior to requesting remand, and her motion does not set forth “good cause,”
other than that Irby does not oppose remand.

2

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.,

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be presumed to be 5 days after the date of such notice, unless there is a reasonable
showing to the contrary.”

If multiple award notices are issued, the time for filing a

§ 406(b) fee motion shall run from the date of receipt of the latest-dated notice.
Final judgment shall issue separately in accordance with this Order and
Federal Rule of Civil Procedure 58.
DONE and ORDERED this the 17th day of November 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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.”).