Clark v. Astrue

Filing 20

MEMORANDUM OPINION AND ORDER entered GRANTING 17 Motion to Remand. It is ORDERED, without objection from Plaintiff, that Defendant's Motion to Remand under sentence four be GRANTED (Doc. 17) and that this action be REVERSED and REMANDED to the Social Security Administration for further administrative proceedings not inconsistent with the orders of this Court. Judgment will be entered by separate order.. Signed by Magistrate Judge Bert W. Milling, Jr on 8/13/09. (clr)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION REGINALD CLARK, Plaintiff, vs. MICHAEL J. ASTRUE, Acting Commissioner of Social Security, Defendant. : : : : : : MEMORANDUM OPINION AND ORDER In this action under 42 U.S.C. § 405(g), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for disability insurance benefits (Docs. 1, 14). The CIVIL ACTION 09-0088-M

parties filed written consent and this action has been referred to the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 19). Defendant has filed a Motion and Memorandum for Entry of Judgment Under Sentence Four of 42 U.S.C. § 405(g) with Remand of the Cause to the Defendant (Doc. 17). Defendant has stated that

Plaintiff's attorney has no objection to the motion (Doc. 17, p. 2). Defendant states the following If the Court grants this motion, the Appeals Council would direct the [Administrative Law Judge] to discuss and analyze whether Plaintiff meets Listing 12.05C; evaluate

Plaintiff's mental retardation to rate the degree of limitation in activities of daily living, social functioning, concentration, persistence, or pace, and episodes of concentration; and evaluate the effects of Plaintiff's ability to work as required by the Commissioner's regulations and Eleventh Circuit case law. (Doc. 17, pp. 1-2). This is a tacit admission that Plaintiff's

application was not appropriately considered and that this action should be reversed. Without reviewing the substantive evidence

of record, this Court accepts Defendant's acknowledgment of error. It appears to the Court that the decision of the Secretary should be reversed and remanded. Such remand comes under See Melkonyan v. Sullivan,

sentence four of 42 U.S.C. § 405(g). 501 U.S. 89 (1991).

For further procedures not inconsistent with

this report, see Shalala v. Schaefer, 509 U.S. 292 (1993). Therefore, it is ORDERED, without objection from Plaintiff, that Defendant's Motion to Remand under sentence four be GRANTED (Doc. 17) and that this action be REVERSED and REMANDED to the Social Security Administration for further administrative proceedings not inconsistent with the orders of this Court. Judgment will be entered by separate order. DONE this 13th day of August, 2009. s/BERT W. MILLING, JR. UNITED STATES MAGISTRATE JUDGE

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