HERNANDEZ v. BERRYHILL
MEMORANDUM AND ORDER THAT DEFENDANT'S MOTION FOR REMAND IS GRANTED AND THIS CASE IS REMANDED TO DEFENDANT FOR FURTHER ADMINISTRATIVE PROCEEDINGS. THIS REMAND IS ORDER PURSUANT TO THE FOURTH SENTENCE OF 42 U.S.C. 405 (g); ETC.. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 1/9/18. 1/9/18 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IRMA LUZ HERNANDEZ,
NANCY BERRYHILL, Acting
Commissioner of Social Security,
January 9, 2018
Before me is Plaintiff’s Motion in Support of Request for Review, Defendant’s
Contested Voluntary Motion to Remand, and Plaintiff’s reply in opposition to
Defendant’s motion to remand. For the following reasons, Defendant’s motion to
remand will be granted.
On June 19, 2007, Plaintiff protectively filed an application for supplemental
security income (“SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 138183f. After nearly 10 years of administrative hearings and remands by this court,
Plaintiff was deemed disabled as of June 3, 2011, and awarded benefits by the Appeals
Council.1 At issue in the current case under review is Plaintiff’s disability status for the
closed period from June 19, 2007 through June 2, 2011.
On October 20, 2014, Judge Stengel approved and adopted the Report and
Recommendation of Magistrate Judge Sitarski recommending remand of Plaintiff’s case to the
Social Security Administration for re-evaluation of Plaintiff’s obesity. Hernandez v. Colvin,
C.A. No. 12-4349 (Doc. No. 19). On November 15, 2016, Judge Stengel granted Defendant’s
uncontested motion for remand for further administrative proceedings. Hernandez v. Colvin,
C.A. No. 16-2774 (Doc. No. 11).
Defendant requests remand of the instant matter to the Social Security
Administration for additional evaluation of the Commissioner’s decision not to award
benefits for the closed period from June 19, 2007 through June 2, 2011.2 The
Commissioner states on remand, the Appeals Council would affirm the portion of the
Appeals Council’s decision that was favorable to Plaintiff and direct the administrative
law judge to obtain supplemental vocational expert testimony for the remaining period June 19, 2007 through June 2, 2011 - in compliance with the Social Security
Administration’s Acquiescence Ruling 01-1(3).
Plaintiff objects to a remand based exclusively upon supplemental vocational
expert testimony. She points out that this is the third appeal of her case to this court and
that failure to address all of the issues presented in her request for review would
squander judicial resources as it will simply result in a fourth appeal to this court.3
Comprehensive review of the issues presented by Plaintiff in her Request for
In cases reviewing final agency decisions regarding Social Security benefits, the
exclusive methods by which a district court may remand a case to the Commissioner are set forth
in sentence four and sentence six of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 296
(1993). There is jurisdictional significance to whether a remand is entered pursuant to sentence
four or six. Sentence four remands are appealable as a final judgment disposing of the action
whereas sentence six remand orders are considered interlocutory and non-appealable because the
district court retains jurisdiction over the action pending further development and consideration
by the administrative law judge. In the instant case, the remand is requested under sentence four
of 42 U.S.C. § 405(g).
In support thereof, Plaintiff notes that she consented to the November 15, 2016 remand
of this matter based on the understanding that the issues presented in her Request for Review
would be fully addressed by the Social Security Administration at that time. See Hernandez v.
Colvin, C.A. No. 16-2774.
Review is essential for complete evaluation of Plaintiff’s disability claim. The
procedural history of this case is long and tortured. It has gone on too long. As a result,
I will grant Defendant’s motion for remand and in addition to obtaining supplemental
vocational expert testimony, direct Defendant to specifically address the issues
presented in Plaintiff’s Request for Review. Hopefully, this process can be completed
within three (3) months of remand.
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