Faubion v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on December 27, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
GAIL L. FAUBION
Civil No. 3:12-cv-03056-JRM
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Gail L. Faubion, 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 her application for disability insurance benefits pursuant to Title II
of the Social Security Act. ECF No. 1. Defendant filed an answer to Plaintiff’s action on
September 14, 2012, asserting that the findings of the Commissioner were supported by
substantial evidence. ECF No. 7.
On December 7, 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. 11.
Commissioner seeks remand to allow the ALJ to reconsider whether Plaintiff had a severe
medically determinable impairment before her date last insured. See Def.’s Mot. Remand, 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
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).
IT IS SO ORDERED this 27th day of December 2012.
/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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