Clark v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 4, 2013. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

WESLEY CLARK
v.

PLAINTIFF
CIVIL NO. 2:12-cv-02248-JRM

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Wesley Clark, 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 21, 2012, asserting that the findings of the
Commissioner were supported by substantial evidence. ECF No. 12.
On March 1, 2013, the Commissioner, having changed positions, filed an unopposed
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. 14. Specifically, the
Commissioner seeks remand to hold a supplemental hearing and issue a new decision. See
Def.’s Mot. Remand, 1. The Commissioner states that opposing counsel has been contacted and
has no objection. Id.
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

1

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.

Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for
Commissioner Michael J. Astrue as the defendant in this suit.

AO72A
(Rev. 8/82)

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. See
42 U.S.C. § 405(g). 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." Id.; Shalala v. Schaefer, 509 U.S. 292, 296, 113 S.Ct. 2625 (1993).
Here, the undersigned finds remand to allow the Administrative Law Judge 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). Upon remand, the Administrative Law Judge
shall do the following: (1) conduct an appropriate evaluation of the 12.05 listing criteria for
mental retardation, including Plaintiff’s adaptive functioning prior to attaining age 22; (2)
conduct an appropriate evaluation of Plaintiff’s substance abuse; and (3) evaluate all medical
source opinions available in the record in accordance with relevant legal standards.
IT IS SO ORDERED this 4th day of March 2013.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

-2-

AO72A
(Rev. 8/82)