POTTER v. COLVIN
ORDER adopting 20 Report and Recommendation ; granting 19 Motion to Remand. Signed by SENIOR JUDGE MAURICE M PAUL on 10/26/2015. 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. (kdm)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
CASE NO. 1:15-cv-00050-MP-GRJ
CAROLYN W COLVIN,
This matter is before the Court on Doc. 20, Report and Recommendation of the
Magistrate Judge, recommending that defendant’s unopposed motion to remand, Doc. 19, be
granted under sentence four of 42 U.S.C. § 405(g). The plaintiff consented to the motion and has
not filed objections to the Report and Recommendation. Upon consideration, the Court shall
accept the Report and Recommendation and grant the motion to remand.
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
fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is
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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
for the Administrative Law Judge to further evaluate whether medical improvement has
occurred as to the severity of Plaintiff’s impairments present at the time of the most
recent prior favorable disability determination in accordance with 20 C.F.R. § 416.994.
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 26th day of October, 2015
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
Case No: 1:15-cv-00050-MP-GRJ
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