Selph v. Social Security Administration Commissioner

Filing 8

ORDER granting 7 Defendant's Motion to Remand to the Commissioner for further consideration. Signed by Honorable James R. Marschewski on March 21, 2012. (sh)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION ANDREW LEE SELPH v. PLAINTIFF CIVIL NO. 11-2176 MICHAEL J. ASTRUE, Commissioner Social Security Administration DEFENDANT ORDER ON MOTION TO REMAND Plaintiff, Andrew Lee Selph, 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 applications for disability insurance benefits and supplemental security income pursuant to Titles II and XVI of the Social Security Act. ECF No. 1. Defendant filed an answer to Plaintiff’s action on December 23, 2011, asserting that the findings of the Commissioner were supported by substantial evidence. ECF No. 4. On March 20, 2012, 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. ECF No. 7. Specifically, the Commissioner seeks remand to allow the Administrative Law Judge to further evaluate the medical report of Ted Honghiran, M.D., an orthopedic specialist, to hold an additional administrative hearing, and to reassess Plaintiff’s residual functional capacity. ECF No. 7, at 1. 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 AO72A (Rev. 8/82) 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, the undersigned finds remand to allow the ALJ to further evaluate the evidence as addressed above, appropriate. Therefore, the Commissioner’s motion is GRANTED and the case will be remanded to the Commissioner for further administrative action pursuant to sentence four of section 405(g). IT IS SO ORDERED this 21st day of March 2012. /s/ J. Marschewski HONORABLE JAMES R. MARSCHEWSKI CHIEF UNITED STATES MAGISTRATE JUDGE -2- AO72A (Rev. 8/82)

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