Redd v. Colvin

Filing 13

ORDER granting 10 Motion to Remand to Agency; the Commissioner's decision denying benefits is REVERSED and this cause is REMANDED for a rehearing. Signed by Magistrate Judge Katherine P. Nelson on 1/30/2017. (srr)

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

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Civil Action No. 16-425-N

ORDER
Social Security Claimant/Plaintiff James E. Redd (“Redd”) has brought this
action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final
decision of the Defendant Commissioner of Social Security (“the Commissioner”),
dated February 26, 2015, denying him applications for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, and
supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383c.1 By the consent of the parties (see Doc. 11), the Court has
designated the undersigned United States Magistrate Judge to conduct all
proceedings and order the entry of judgment in this civil action under 28 U.S.C. §
636(c) and Federal Rule of Civil Procedure 73. (See Doc. 12).
After Redd filed and served his Brief and Fact Sheet (Doc. 8) listing the
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record reflects that Redd resides in this judicial district. Thus, venue is proper in this
Court. See 42 U.S.C. §§ 1383(c)(3) (“The final determination of the Commissioner of Social
Security after a hearing [on a claim for supplemental security income] 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.”) and 405(g) (“Such
action shall be brought in the district court of the United States for the judicial district in
which the plaintiff resides, or has his principal place of business…”).

specific errors upon which he sought reversal of the Commissioner's decision, the
Commissioner filed a motion to remand Redd’s case under sentence four of § 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.”),2 representing that Redd does not oppose the motion. (Doc. 10).
Upon consideration, it is ORDERED that the Commissioner’s unopposed
motion to remand (Doc. 10) is GRANTED.

The Commissioner’s final decision

denying Redd DIB and SSI benefits is REVERSED, and this cause is
REMANDED for a rehearing. Securing remand pursuant to sentence four of §
405(g) makes Redd 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. Final judgment in accordance with this
Order and Federal Rule of Civil Procedure 58 shall issue by separate document.
Pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), the Court grants
Redd ’s attorney 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 days after receipt of a notice of
award of benefits from the Social Security Administration. 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)
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.”).

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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.”).
DONE and ORDERED this the 30th day of January 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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