Thomas v. Colvin
ORDER granting 18 Motion to Remand to Agency; the Commissioner's decision denying plaintiff benefits is REVERSED and this cause is REMANDED for a rehearing. Signed by Magistrate Judge Katherine P. Nelson on 6/2/2017. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
PAUL M. THOMAS,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Civil Action No. 16-0579-N
Social Security Claimant/Plaintiff Paul M. Thomas (“Madison”) has brought
this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a
Commissioner”), dated September 22, 2016, denying his 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 (Doc. 1). By the consent of the parties (see
Doc. 19), 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. 20).
After Thomas filed and served his Brief (Doc. 15) and Fact Sheet (Doc. 14)
record reflects that Thomas 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…”).
listing the specific errors upon which he sought reversal of the Commissioner's
decision, the Commissioner filed a motion to remand Thomas’ 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 Thomas does not oppose the motion.
Upon consideration, it is ORDERED that the Commissioner’s unopposed
motion to remand (Doc. 18) is GRANTED.
The Commissioner’s September 26,
2016 final decision denying Thomas DIB and SSI benefits is REVERSED, and this
cause is REMANDED for a rehearing. Securing remand pursuant to sentence four
of § 405(g) makes Madison 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
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.”).
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. 12) prior to requesting remand, and her motion does not set forth “good
cause,” other than that Champion does not oppose remand.
Pursuant to Federal Rule of Civil Procedure 54(d)(2)(B), the Court grants
Thomas’ 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)
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 2nd day of June 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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