Booth v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: (1) Plaintiff's Motion to Reopen and/or Amend 10 Order is DENIED; (2) Plaintiff's motions to redocket case and affirm administrative decision and to approve fee petition are PASSED for 30 days so Defendant may file response. Signed by Judge G. Wix Unthank on 05/04/2012.(DAK)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 11-191-GWU
STEVIE DALE BOOTH,
VS.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
The plaintiff has filed three related motions in the above-styled case, which
was remanded on the defendant’s motion under Sentence Four of 42 U.S.C. 405(g),
the plaintiff having consented. Docket Entries #9, 10. The plaintiff now moves as
follows: (1) to reopen the Sentence Four remand and amend it to a Sentence Six
remand; (2) to redocket and affirm the administrative decision dated February 16,
2012 awarding him benefits; and (3) to approve his petition for an attorney fee
under the Equal Access to Justice Act (EAJA).
The plaintiff’s first motion will be denied. The Commissioner specifically
requested a Sentence Four remand and noted that he had been authorized by
counsel for the plaintiff to advise the court that the plaintiff consented to the motion.
The court, nevertheless, kept the case open for 21 days pursuant to Local Rule
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11-191 Stevie Dale Booth
7.1(c) in order to give the plaintiff a full opportunity to object. No response was
made. Therefore, any objection to the Sentence Four remand was conclusively
waived.
Moreover, a Sentence Six remand would be inapposite for the present case.
A Sentence Four remand is proper when the court is ruling on the correctness of the
Commissioner’s final decision, and issues a final judgment reversing it. Faucher v.
Secretary of Health and Human Services, 17 F.3d 171, 174 (6th Cir. 1994). A
Sentence Six remand may be granted “on motion of the Commissioner made for
good cause shown before he files his answer . . . for further action by the
Commissioner, and [the court] may at any time order additional evidence to be
taken before the Commissioner, but only upon a showing that there is new evidence
which is material and that there is good cause shown for failing to incorporate such
evidence into the record in a prior proceeding . . . .” 42 U.S.C. § 405(g). Neither of
the two circumstances appropriate for a Sentence Six remand are present here.
The other two motions will be passed for a period of thirty (30) days in order
to allow the defendant to file a response.
Accordingly,
IT IS HEREBY ORDERED that:
(1)
the plaintiff’s motion to amend the court’s order of August 30, 2011
(Docket Entry #10) is DENIED; and
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11-191 Stevie Dale Booth
(2)
the plaintiff’s motions to redocket the case and affirm the
administrative decision dated February 16, 2012 and to approve his fee petition are
PASSED for a period of thirty (30) days in order for the defendant to file a response.
This the 4th day of May, 2012.
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