Lusher v. Berryhill

Filing 12

MEMORANDUM OPINION granting Claimant's 9 Motion for Judgment on the Pleadings, to the extent that it requests reversal and remand; granting Defendant's 10 Motion to Remand; reversing the final decision of the Commissioner; remanding thi s 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 3/28/2018. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
AMY KATHLEEN LUSHER,
Plaintiff,
v.

Case No.: 3:17-cv-04115

NANCY A. BERRYHILL,
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 application
for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383f. The case is presently before the court on the plaintiff’s motion for
judgment on the pleadings, seeking, inter alia, reversal and remand of the
Commissioner’s decision, and on the defendant’s motion to remand. (ECF Nos. 9, 10).
Both parties have consented in writing to a decision by the United States Magistrate
Judge. (ECF No. 11). The court has fully considered the issues 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 application as stated herein.
Plaintiff, Amy Kathleen Lusher (“Claimant”), completed an application for SSI on
April 2, 2014, alleging a disability onset date of November 9, 2009, (Tr. at 194), due to

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atrophying spleen, underweight-malnourished, back pain, pain in legs, anxiety,
depression, myocardial infarction, arthritis, and bilateral knee pain. (Tr. at 252). The
Social Security Administration (“SSA”) denied the application initially and upon
reconsideration. (Tr. at 28). Claimant filed a request for a hearing, which was held on
March 23, 2016 before the Honorable John M. Wood, Administrative Law Judge (“ALJ”).
(Tr. at 51-80). By written decision dated June 1, 2016, the ALJ determined that Claimant
was not entitled to benefits. (Tr. at 28-44). The ALJ’s decision became the final decision
of the Commissioner on July 29, 2017, when the Appeals Council denied Claimant’s
request for review. (Tr. at 9-11).
On October 3, 2017, 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 on February 5, 2018, along with a Transcript of the
Proceedings. (ECF Nos. 7, 8). Thereafter, Claimant filed a brief in support of judgment on
the pleadings, requesting remand of the Commissioner’s decision under sentence four 42
U.S.C. § 405(g). (ECF No. 9). Claimant asserted, in relevant part, that reversal and
remand were appropriate, because the ALJ had failed to follow relevant regulations and
agency rulings in evaluating Claimant’s application for benefits. (Id.). On March 23, 2018,
the Commissioner filed a motion for remand under sentence four of 42 U.S.C. § 405(g),
acknowledging that the ALJ’s decision denying benefits merited further evaluation. (ECF
No. 10). The Commissioner represented that Claimant agreed to a sentence four remand.
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
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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 effectively
“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 Claimant moved this court to reverse and remand the decision of the
Commissioner, and the Commissioner ultimately agreed to a remand without contesting
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 her brief.
Moreover, the court notes that in her motion to remand, the Commissioner asks for a
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sentence four remand; thereby, implicitly conceding termination of the judicial
proceeding in Claimant’s favor. Accordingly, the court hereby GRANTS Claimant’s
motion for judgment on the pleadings, to the extent that it requests reversal and remand
under sentence four, (ECF No. 9); GRANTS Defendant’s motion to remand, (ECF No.
10); 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 entered accordingly.
The Clerk of this Court is directed to transmit copies of this Memorandum Opinion
to counsel of record.
ENTERED: March 28, 2018

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