SMITH v. ASTRUE
Filing
29
ORDER ON REMAND - Granting 28 MOTION to Remand filed by CAROLYN W COLVIN. Signed by MAGISTRATE JUDGE CHARLES A STAMPELOS on 10/29/13. (Clerk to enter judgment) (deb) Modified on 10/29/2013 (deb).
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JERRY SMITH,
Plaintiff,
v.
CASE NO. 1:13cv16-CAS
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
_____________________________/
ORDER ON REMAND
The Defendant Commissioner has filed an unopposed motion for remand with a
supporting memorandum requesting reversal of the decision of the Commissioner, entry
of judgment pursuant to sentence four of 42 U.S.C. § 405(g), and remand of this cause
to the Commissioner. Doc. 28. The motion advises that Plaintiff "has no objection" and
the motion should be granted.
A sentence four remand is discretionary, but requires that the court enter "a
judgment affirming, modifying, or reversing the decision of the Commissioner." 42
U.S.C. § 405(g); Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239
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(1993). Thus, the Commissioner's decision is reversed and remand is necessary for reevaluation of the evidence, and to obtain additional testimony "on whether the claimant's
intellectual disability meets or equals the criteria in Listing 12.02 or 12.05(c)." See doc.
28. "If warranted, the ALJ should reassess the claimant's residual functional capacity
and obtain vocational expert evidence at step five." Id. The Court agrees with the
parties that it is appropriate to remand this matter to the Commissioner.
Accordingly, it is
ORDERED:
1. Defendant's motion for remand, doc. 28, is GRANTED.
2. The Commissioner's decision denying benefits is REVERSED and
REMANDED pursuant to Sentence four of § 405(g).
3. On remand, the Administrative Law Judge shall provide Plaintiff with an
opportunity to submit additional evidence; if warranted and available, obtain medical
expert testimony regarding the nature and severity of the claimant's impairments; further
evaluate the opinion evidence from the treating, examining, and non-treating sources;
and reassess Plaintiff's residual functional capacity and obtain vocational expert
evidence at step five as may be necessary to determine whether there are a significant
number of jobs in the national economy that the Plaintiff can perform; and, issue a new
decision.
4. The Clerk of Court shall enter a final judgment pursuant to Rule 58 of the
Federal Rules of Civil Procedure reversing the decision of the ALJ and remanding this
Case No. 1:13cv16-CAS
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case to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further
proceedings, terminate any pending motions, and close the file.
5. Entry of the final judgment reversing and remanding this case will begin the
appeal period which determines the 30-day period during which a timely application for
attorney fees under the Equal Access to Justice Act (EAJA).
DONE AND ORDERED on October 29, 2013.
S/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
Case No. 1:13cv16-CAS
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