SHAFFER v. ASTRUE
Filing
12
ORDER ADOPTING 11 REPORT AND RECOMMENDATION, reversing the decision of the Administrative Law Judge,remanding case to the Commissioner, and directing the clerk to enter a final judgment; signed by SENIOR JUDGE MAURICE M PAUL on 9/27/12. (tss)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
RALPH SHAFFER,
Plaintiff,
v.
CASE NO. 1:11-cv-00148-MP-GRJ
MICHAEL ASTRUE,
Defendant.
_____________________________/
ORDER
This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending that this matter be remanded under sentence four of 42 U.S.C. § 405(g).
The time for filing objections has passed, and none have been filed. The Court agrees that the
Administrative Law Judge failed to explain her implicit rejection of consulting doctors Dr.
Gedney and Dr. Benet's opinions in this case. Therefore, the Court will remand this case under
sentence four.
A remand under sentence four is considered a final judgment. Bergen v. Commissioner,
454 F.3d 1273 (11th Cir. 2006). Thus, absent a court order stating otherwise, a successful
plaintiff’s counsel would normally have fourteen days after the order of remand to file a motion
with the District Court requesting an award of attorney fees. Fed. R. Civ. P. 54(d)(2)(B). This
Rule has been interpreted by the Eleventh Circuit to even apply to a request for fees to be paid
from plaintiff’s past due benefits pursuant to 42 U.S.C. § 406(b)(1).
Bergen, 454 F.3d at
1277-78. However, plaintiff's counsel in such a case will not know the amount of benefits - and
therefore fees - until after the Commissioner awards benefits, which typically takes longer than
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fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is
warranted, and was recommended by the Bergen opinion. Id. Accordingly, it is hereby
ORDERED AND ADJUDGED:
The Report and Recommendation of the Magistrate Judge is adopted, the decision of the
Administrative Law Judge is reversed, and this matter is remanded to the Commissioner.
This Clerk is directed to enter final judgment remanding this case to the Commissioner
under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings in order
to fully discuss and give appropriate weight to the opinions of the consulting physicians.
Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42
U.S.C. § 406(b) are stayed until the matter is fully adjudicated upon remand. The
plaintiff shall file a motion to award fees under 406(b) within 30 days after counsel
receives notice from the Commissioner as to plaintiff’s past due benefits.
This stay relates only to attorney fee proceedings under § 406(b) of the Social Security
Act, not to attorney fee proceedings under the Equal Access to Justice Act, 28 U.S.C. §
2412, the latter of which may be adjudicated at this time.
DONE AND ORDERED this 27th day of September, 2012
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
Case No: 1:11-cv-00148-MP-GRJ
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