Hunter et al v. Astrue

Filing 21

MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the motion of the Commissioner to reverse and remand is GRANTED. [Doc. 20] IT IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel is DENIED as moot. [Doc. 4] Signed by Magistrate Judge Thomas C. Mummert, III on 7/19/2010. (RJD)

H u n t e r et al v. Astrue

D o c . 21

U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF MISSOURI E A S T E R N DIVISION G E O R G I A ANGELA HUNTER, o /b /o A.N.H., Plaintiff, vs. MICHAEL J. ASTRUE, C o m m is s io n e r of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) )

Case number 4:10cv0161 TCM

M E M O R A N D U M AND ORDER T h is is a 42 U.S.C. § 405(g) action for judicial review of the final decision of Michael J . Astrue, the Commissioner of Social Security ("the Commissioner"), terminating the su p p lem e n tal security income benefits ("SSI") previously awarded the daughter of Georgia A n g e la Hunter ("Plaintiff") under Title XVI of the Act, 42 U.S.C. § 1381-1383b. Pending is Plaintiff's motion for appointment of counsel and the Commissioner's unopposed motion to remand. P la in tif f 's daughter (A.N.H.) was born on December 24, 1988, and had been awarded b e n e fits pursuant to an SSI application filed in November 2004. (R.1 at 11.) That

d e te rm in a tio n was revisited when A.N.H. became 18 years old. (Id.) It was then decided th a t she was no longer disabled, and her SSI was terminated. (Id.) The Administrative Law

1

"R" refers to the administrative record filed by the Commissioner.

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J u d g e ("ALJ") upheld the termination after a hearing at which A.N.H., represented by c o u n s e l, testified. (Id. at 11-18, 151-85.) The ALJ decided that A.N.H. had a bipolar d is o rd e r but did not have an impairment, or combination of impairments, that were of listingle v e l severity. (Id. at 13.) The Appeals Council denied Plaintiff's request for review, thereby a d o p tin g the ALJ's adverse decision as the final decision of the Commissioner. (Id. at 2-5.) P lain tiff then filed the instant action pro se, alleging that her daughter's benefits were im p ro p e rly terminated without testimony by a vocational expert ("VE"). After filing the tra n sc rip t of the administrative proceedings, the Commissioner moves for remand pursuant to sentence four of § 405(g). Specifically, the Commissioner requests a remand in order to d ire c t the ALJ to (a) further evaluate the severity of Plaintiff's mental impairments and their im p a c t on her residual functional capacity, (b) obtain testimony from a VE, and (c) resolve a n y conflicts between that testimony and the Dictionary of Occupational Titles. A case seeking judicial review of the Commissioner's adverse decision may be re m a n d e d 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 b y its terms, authorizes a court to enter 'a judgment affirming, modifying, or reversing the d e c is io n of the [Commissioner], with or without remanding the case for a rehearing.'" B u c k n e r v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000) (quoting § 405(g)) (footnote added).

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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T h e Commissioner's unopposed motion is properly considered a sentence four remand. See B o y le v. Halter, 165 F. Supp.2d 943, 943 n.2 (D. Minn. 2001) (noting that Commissioner's m o tio n to remand after answer has been filed was appropriately made pursuant to sentence f o u r). It will be granted. A c c o r d i n g l y, I T IS HEREBY ORDERED that the motion of the Commissioner to reverse and r e m a n d is GRANTED. [Doc. 20] I T IS FURTHER ORDERED that Plaintiff's motion for appointment of counsel is D E N I E D as moot. [Doc. 4] A n appropriate Judgment shall accompany this Memorandum and Order.

/ s / Thomas C. Mummert, III THOMAS C. MUMMERT, III U N IT E D STATES MAGISTRATE JUDGE D a te d this 19th day of July, 2010.

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