ZOBEL v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

ORDER ADOPTING 13 REPORT AND RECOMMENDATION: Decision of the Commissioner is REVERSED AND REMANDED under sentence four of 42 U.S.C. § 405(g) to the Commissioner so that the Administrative Law Judge may conduct further procee dings consistent with the R&R. Clerk directed to enter final judgment in favor of Plaintiff. 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 Plainti ff shall file a motion to award fees under § 406(b) within thirty (30) days after counsel receives notice from the Commissioner as to the Plaintiffs past due benefits. This stay relates only to attorney fee proceedings under § 406(b) of the Social Security Act, and 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. Signed by SENIOR JUDGE MAURICE M PAUL on 9/17/2015. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
JULIE REBECCA ZOBEL,
Plaintiff,
v.

CASE NO. 1:14-cv-00045-MP-GRJ

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
_____________________________/
ORDER
This cause comes on for consideration upon the Magistrate Judge's Report and
Recommendation dated August 3, 2015. (Doc. 13). The parties have been furnished a copy of
the Report and Recommendation and have been afforded an opportunity to file objections
pursuant to Title 28, United States Code, Section 636(b)(1). The time for filing objections has
passed, and none have been filed.
Having considered the Report and Recommendation, I have determined that the Report
and Recommendation should be adopted. Pursuant to the Report and Recommendation, the
denial of benefits in this case should be reversed and this matter should be remanded under
sentence four of 42 U.S.C. § 405(g). A remand under sentence four is considered a final
judgment. Bergen v. Comm’r of Soc. Sec., 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 a plaintiff’s past due benefits pursuant to 42 U.S.C. §

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406(b)(1). Bergen, 454 F.3d at 1277–78. However, the plaintiff's counsel in such a case will not
know the amount of benefits - and therefore fees - until after the Commissioner awards benefits
(if it does), which typically takes longer than 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:
1.

The Magistrate Judge’s Report and Recommendation (doc. 13) is adopted and
incorporated by reference in this order.

2.

The decision of the Commissioner is REVERSED AND REMANDED under
sentence four of 42 U.S.C. § 405(g) to the Commissioner so that the
Administrative Law Judge may conduct further proceedings consistent with the
Report and Recommendation.

3.

The Clerk is directed to enter final judgment in favor of the Plaintiff, reversing
the decision of the Commissioner and remanding this case to the Commissioner
under sentence four of 42 U.S.C. § 405(g) for further proceedings.

4.

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 thirty (30)
days after counsel receives notice from the Commissioner as to the Plaintiff’s past
due benefits.

5.

This stay relates only to attorney fee proceedings under § 406(b) of the Social
Security Act, and 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

17th day of September, 2015

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:14-cv-00045-MP-GRJ