Smith v. Berryhill

Filing 26

ORDER granting 23 Motion to Remand to Agency; the Commissioner's final decision denying plaintiff's benefits is REVERSED and REMANDED for a rehearing under sentence four of 42:405(g). Signed by Magistrate Judge Katherine P. Nelson on 9/21/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CURTIS SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 18-00115-N

ORDER
Plaintiff Curtis Smith 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 April 18, 2017, denying his 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., and for supplemental security income
(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381, 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 72, and S.D. Ala.
GenLR 73. (See Doc. 24).
In response to Smith’s motion to correct, brief and fact sheet (Docs. 15, 16, 17)
listing the specific errors upon which he seeks reversal of the Commissioner’s
decision, the Commissioner filed a motion to remand Smith’s case for rehearing 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 Smith consents to the
motion.2 (Doc. 23).
Upon consideration, it is ORDERED that the Commissioner’s consent motion
to remand (Doc. 23) is GRANTED.

The Commissioner’s April 18, 2017 final

decision denying Smith a period of disability, DIB benefits, and SSI benefits is
REVERSED, and this cause is REMANDED for a rehearing under sentence four of
§ 405(g).

Securing a “sentence four” remand makes Smith 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 Smith 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 Smith’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
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. 11)
prior to requesting remand, and her motion does not set forth “good cause,” other than that
Struble consents to remand.
2

from the SSA.3 Consistent with 20 C.F.R. § 422.210(c), “the date of 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 21st day of September 2018.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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.”).
3