Miller v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on March 31, 2010. (tg)
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION
NIKKI JO MILLER
CIVIL NO. 09-5232
MICHAEL J. ASTRUE, Commissioner Social Security Administration
MEMORANDUM OPINION Plaintiff, Nikki Jo Miller, 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 supplemental security income (SSI ) benefits under the provisions of Titles XVI of the Social Security Act. (Doc. 1). The Defendant filed an answer to Plaintiff's action on January 7, 2010, asserting that the findings of the Commissioner were supported by substantial evidence and were conclusive. (Doc. 4). Plaintiff filed an appeal brief on January 27, 2010. (Doc. 5). On March 26, 2010, 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. (Doc. 8). The Defendant states that upon remand the ALJ will further evaluate the additional medical reports dated February 2009 and March 2009, and will obtain medical expert testimony. 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
AO72A (Rev. 8/82)
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. Based on the foregoing, we find remand appropriate and grant the Commissioner's motion to remand this case to the Commissioner for further administrative action pursuant to "sentence four" of section 405(g). DATED this 31st day of March 2010.
/s/ Erin L. Setser HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE
AO72A (Rev. 8/82)
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