Overton v. Kijakazi

Filing 11

MEMORANDUM OPINION reversing the final decision of the Commissioner; granting the uncontested 9 MOTION by Kilolo Kijakazi, Acting Commissioner of Social Security, to Remand; remanding this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion; and dismissing this action from the docket of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 11/17/2022. (cc: counsel of record) (arb)

Case 1:22-cv-00340 Document 11 Filed 11/17/22 Page 1 of 4 PageID #: 1417

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD DIVISION
NANCY O.,1
Plaintiff,
v.

Case No.: 1:22-cv-00340

KILOLO KIJAKAZI,
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
Commissioner’s Uncontested Motion for Remand. (ECF No. 9). Both parties have
consented in writing to a decision by the United States Magistrate Judge. (ECF No. 10).
The Court has fully considered the Motion for Remand and GRANTS same. 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
The Court lists only the first name and last initial of any non-government parties in Social Security
opinions pursuant to the October 31, 2022 Standing Order in this District, which adopts the
recommendation of the May 2018 Judicial Conference Committee on Court Administration and Case
Management concerning privacy of personal and medical information.

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Plaintiff’s application as stated herein.
Plaintiff, Nancy O. (“Claimant”), completed applications for DIB and SSI on
August 8, 2019, alleging a disability onset date of July 22, 2019. (Tr. at 218-227). The
Social Security Administration (“SSA”) denied the applications initially and upon
reconsideration. (Tr. at 13). Claimant filed a request for a hearing, which was held on
September 29, 2021 before the Honorable Michael Dennard, Administrative Law Judge,
(“ALJ”). (Tr. at 34-74). By written decision dated November 2, 2021, the ALJ determined
that Claimant was not entitled to benefits. (Tr. at 13-26). The ALJ’s decision became the
final decision of the Commissioner on June 17, 2022, when the Appeals Council denied
Claimant’s request for review. (Tr. at 1-4).
On August 16, 2022, Claimant timely 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 October 18, 2022.
(ECF Nos. 7, 8). Prior to Claimant filing her brief, on November 16, 2022, the
Commissioner filed an uncontested motion for remand, indicating that the ALJ’s decision
denying benefits merited further evaluation. (ECF No. 9). According to the
Commissioner, Claimant concurred that further proceedings would be beneficial.
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
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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 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 (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 (1989).
Given that the Commissioner explicitly asks for a sentence four remand,2 the court
REVERSES the final decision of the Commissioner; GRANTS the motion to remand,
(ECF No. 9); 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 entered accordingly.

2 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, at this time, offered new evidence that was not previously made a part of the record.

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The Clerk of this Court is directed to transmit copies of this Memorandum Opinion
to counsel of record.
ENTERED: November 17, 2022

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