Fisk v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 11, 2009. (lw)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION JOSHUA M. FISK v. CIVIL NO. 08-2085 PLAINTIFF MICHAEL J. ASTRUE, Commissioner Social Security Administration DEFENDANT MEMORAMDUM OPINION Joshua Fisk ("plaintiff") brings this action pursuant to 42 U.S.C. 405(g) seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying his application for supplemental security income ("SSI"). (Doc. # 2). The defendant filed an answer to plaintiff's action on November 21, 2008, asserting that the findings of the Commissioner were supported by substantial evidence and were conclusive. (Doc. # 7). On March 9, 2009, the Commissioner, having changed positions, filed a motion requesting that plaintiff's case be remanded pursuant to "sentence four" of section 405(g) in order to conduct further administrative proceedings. (Doc. # 13). The Commissioner seeks remand in order that the ALJ may accord the plaintiff an opportunity to appear at a hearing if possible, or knowingly and voluntarily waive his right to do so. Plaintiff has filed a response voicing no objection. (Doc. # 14). The exclusive methods by which a district court may remand a social security case to the Commissioner are set forth in "sentence four" and "sentence six" of 42 U.S.C. 405(g). A remand pursuant to "sentence six" is limited to two situations: where the Commissioner requests a remand before answering the complaint, or where the court orders the Commissioner to consider new, material evidence that was for good cause not presented before the agency. The Fourth sentence of the statute provides that "[t]he 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." 42 U.S.C. 405(g); Shalala v. Schaefer, 509 U.S. 292, 296, 113 S.Ct. 2625 (1993). Here, we find remand for the purpose of the ALJ to further evaluate the evidence as addressed above, appropriate. Therefore, the Commissioner's motion to remand is hereby GRANTED and the case is remanded to the Commissioner for further administrative action pursuant to "sentence four" of section 405(g). DATED this 11th day of March 2009. /s/ J. Marschewski HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE 2

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