Jobe v. Astrue

Filing 21

MEMORANDUM AND ORDER :IT IS HEREBY ORDERED that the motion of the Commissioner to reverse and remand is GRANTED [Doc. 19] and that this case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings as outlined in the motion. An appropriate Order of Remand shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 8/27/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
TRACY JOBE,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case number 1:13cv0009 TCM

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the final decision of
Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying
Tracy Jobe's (Plaintiff) applications for disability insurance benefits (DIB) under Title II of
the Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security income
(SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b.1 In response to Plaintiff's brief
in support of her complaint, the Commissioner has filed a motion to remand. Plaintiff has
responded that she does not oppose the remand.
Plaintiff applied for DIB and SSI in April 2010, alleging she was disabled as of
September 1, 2009, by anxiety, a panic disorder, a bipolar disorder, and depression. Her
applications were denied initially and after an administrative hearing at which only she
testified. The Appeals Council then denied her request for review, thereby adopting the

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The case is before the undersigned United States Magistrate Judge by written consent of the
parties. See 28 U.S.C. § 636(c).

adverse decision of the Administrative Law Judge (ALJ) as the final decision of the
Commissioner.
In her supporting brief, Plaintiff argues that the ALJ erred in determining that she was
capable of performing her past relevant work, in assessing her residual functional capacity,
and in finding at step two of the Commissioner's five-step evaluation process that her hip and
back pain were not severe impairments. In her motion to remand, the Commissioner states
that on remand the ALJ will be directed to further evaluate whether Plaintiff can perform the
actual physical and mental demands of her past relevant work as she actually performed it
or as it is generally performed in the national economy and will, if necessary, elicit the
testimony of a vocational expert to determine the effect of Plaintiff's nonexertional
limitations on the occupational base.
A case seeking judicial review of the Commissioner's adverse decision may be
remanded pursuant only to sentence four or six of § 405(g). See Shalala v. Schaefer, 509
U.S. 292, 296 (1993); Melkonyan v. Sullivan, 501 U.S. 89, 97-98 (1991). "Sentence four,2
by its terms, authorizes a court to enter 'a judgment affirming, modifying, or reversing the
decision of the [Commissioner], with or without remanding the case for a rehearing.'"
Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000) (quoting § 405(g)) (footnote added).
The Commissioner's unopposed motion is properly considered a sentence four remand. See
Boyle v. Halter, 165 F. Supp.2d 943, 943 n.2 (D. Minn. 2001) (noting that Commissioner's
2

Sentence four reads: "The court shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
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motion to remand after answer has been filed was appropriately made pursuant to sentence
four). It will be granted.
Accordingly,
IT IS HEREBY ORDERED that the motion of the Commissioner to reverse and
remand is GRANTED [Doc. 19] and that this case is remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings as outlined in the motion.
An appropriate Order of Remand shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 27th day of August, 2013.

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