Lusk v. Colvin

Filing 18

MEMORANDUM OPINION: The Court GRANTS Plaintiff's 12 MOTION for Judgment on the Pleadings, to the extent that it requests reversal and remand; GRANTS Defendant's 15 MOTION to Remand; REVERSES the final decision of the Commissioner; REMANDS this matter for further administrative proceedings; and DISMISSES this action from the Court's docket. Signed by Magistrate Judge Cheryl A. Eifert on 8/5/2016. (cc: counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD DIVISION
JERRY AARON LUSK,
Plaintiff,
v.

Case No.: 1:16-cv-01419

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

MEMORANDUM OPINION
This is an action seeking review of the decision of the Commissioner of the Social
Security Administration (hereinafter the “Commissioner”) denying Plaintiff’s
applications for a period of disability and disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401-433, 1381-1383f. The case is presently before the court on the
plaintiff’s motion for judgment on the pleadings, seeking reversal and remand of the
Commissioner’s decision, and the defendant’s motion to remand. (ECF Nos. 12, 15).
Both parties have consented in writing to a decision by the United States Magistrate
Judge. (ECF Nos. 16, 17). The court has fully considered the representations and
arguments of counsel and GRANTS both motions. Accordingly, the court FINDS that
the decision of the Commissioner should be REVERSED and REMANDED,
pursuant to sentence four of 42 U.S.C. § 405(g), for further evaluation of Plaintiff’s

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application as stated herein.
Plaintiff, Jerry Aaron Lusk (“Claimant”), completed applications for DIB and
SSI on August 6, 2012, alleging a disability onset date of December 15, 2010, (Tr. at
211, 218), due to “Back, hip, no use of right hand, left leg and knee; Hips; No use of
right hand; Left leg, knee numbness and tingling; Right eardrum burst; Depression;
Anxiety; Low blood pressure; [and] Chronic pain.” (Tr. at 238). The Social Security
Administration (“SSA”) denied the application initially and upon reconsideration. (Tr.
at 11). Claimant filed a request for a hearing, which was held on July 29, 2014 before
the Honorable Anne V. Sprague, Administrative Law Judge (“ALJ”). (Tr. at 21-46). By
written decision dated September 23, 2014, the ALJ determined that Claimant was not
entitled to benefits. (Tr. at 11-20). The ALJ’s decision became the final decision of the
Commissioner on December 14, 2015, when the Appeals Council denied Claimant’s
request for review. (Tr. at 1-4).
On February 9, 2016, Claimant filed the present civil action seeking judicial
review of the administrative decision pursuant to 42 U.S.C. § 405(g). (ECF No. 2). The
Commissioner filed an Answer and a Transcript of the Proceedings on April 13, 2016.
(ECF Nos. 8, 9). Thereafter, Claimant filed a brief in support of his request for a
reversal and remand of the Commissioner’s decision. (ECF No. 12). Claimant asserted
that reversal and remand were appropriate, because the ALJ had committed three
errors, which prevented the Commissioner’s final decision from being supported by
substantial evidence. In particular, Claimant contended that (1) the ALJ failed to
properly evaluate and weigh the opinion of Claimant’s treating physician, or in the
alternative, failed to give good reasons for rejecting the opinion; (2) the ALJ erred by
finding Claimant’s mental impairments to be non-severe and by making no finding
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regarding the severity of Claimant’s bilateral hearing loss; and (3) the ALJ failed to
adequately assess the evidence pertaining to Claimant’s right hand impairment and
failed to discuss her findings regarding the functional limitations associated with that
impairment. (Id.). On August 1, 2016, after being given an extension for the filing of
her brief in opposition to reversal and remand, the Commissioner filed a motion for
remand, acknowledging that the ALJ’s decision denying benefits merited further
consideration. (ECF No. 15).
Title 42 U.S.C. § 405(g) authorizes the district court to remand the decision of
the Commissioner of Social Security for further consideration at different stages of the
judicial proceedings. When the Commissioner requests remand prior to filing an
answer to the plaintiff’s complaint, the presiding court may grant the request under
sentence six of § 405(g), upon a showing of good cause. In addition, a court may
remand the matter “at any time” under sentence six to allow “additional evidence to be
taken before the Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
When a court remands the Commissioner’s decision under sentence six, the court
retains jurisdiction over the matter, but “closes it and regards it as inactive” until
additional or modified findings are supplied to the court. See McPeak v. Barnhart, 388
F.Supp.2d 742, 745 n.2. (S.D.W.Va. 2005).
In contrast, under sentence four of 42 U.S.C. § 405(g), “[t]he 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.” Because a sentence four remand
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essentially “terminates the litigation with victory for the plaintiff,” the court enters a
final judgment dismissing the case and removing it from the court’s docket. Shalala v.
Schaefer, 509 U.S. 292, 299, 113 S. Ct. 2625, 2630-31, 125 L. Ed. 2d 239 (1993) (“Under
§ 405(g), ‘each final decision of the Secretary [is] reviewable by a separate piece of
litigation,” and a sentence-four remand order ‘terminate[s] the civil action’ seeking
judicial review of the Secretary's final decision.”) (quoting in Sullivan v. Hudson, 490
U.S. 877, 892, 109 S.Ct. 2248, 2258, 104 L.Ed.2d 941 (1989).
Given that Claimant moved this court to reverse and remand the decision of the
Commissioner, then filed a brief in support of that position, and the Commissioner
ultimately agreed to a remand without contesting any of the arguments raised by
Claimant, the court concludes that Claimant is entitled to reversal and remand of the
Commissioner’s decision on the grounds asserted in his brief. Moreover, the court
notes that in her motion to remand, the Commissioner asks for a sentence four
remand; thereby, implicitly conceding termination of the judicial proceeding in
Claimant’s favor.1
Accordingly, the court hereby GRANTS Plaintiff’s motion for judgment on the
pleadings, to the extent that it requests reversal and remand, (ECF No. 12); GRANTS
Defendant’s motion to remand, (ECF No. 15); REVERSES the final decision of the
Commissioner; REMANDS this matter pursuant to sentence four of 42 U.S.C. §
405(g) for further administrative proceedings consistent with this opinion; and
DISMISSES this action from the docket of the Court. A Judgment Order will be

1 Furthermore, this case does not present either of the factual scenarios that would typically support a
sentence six remand. The Commissioner’s motion was not made until after the answer was filed, and
neither party has offered new evidence that was not previously made a part of the record.

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entered accordingly.
The Clerk of Court is directed to transmit copies of this Memorandum Opinion
to counsel of record.
ENTERED: August 5, 2016

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