Long v. Berryhill

Filing 22

ORDER granting 18 Motion to Remand to Agency; the Commissioner's decision is REVERSED and this action is REMANDED for a rehearing under sentence four of §405(g). Signed by Magistrate Judge Katherine P. Nelson on 9/26/17. (srr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION ODELLSIA LONG, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) CIVIL ACTION NO. 17-00099-N ORDER Plaintiff Odellsia Long 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 October 26, 2015, denying her applications for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. 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. 20, 21). In response to Long’s brief and fact sheet (Docs. 14, 15) listing the specific errors upon which she seeks reversal of the Commissioner’s decision, the Commissioner filed a motion to remand Long’s case 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 Long 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 October 26, 2015 final decision denying Long DIB benefits is REVERSED and this cause is REMANDED for a rehearing under sentence four of § 405(g). Securing a “sentence four” remand makes Long 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. In the event Long is awarded Social Security benefits on the subject applications following this remand, under Federal Rule of Civil Procedure 54(d)(2)(B) the Court hereby grants Long’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 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.”). 2 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.9) prior to requesting remand, and her motion does not set forth “good cause,” other than that Long does not oppose remand. 3 See Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam) 1 receipt of notice … shall 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 26th day of September 2017. /s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE (“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.”).

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