United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
November 2, 2017, Plaintiff Emma Jean Kinder
(“Plaintiff”), by counsel James Carey, Esq.,
filed a Complaint in this Court to obtain judicial review of
the final decision of Defendant Nancy A. Berryhill, Acting
Commissioner of Social Security (“Commissioner”
or “Defendant”), pursuant to Section 205(g) of
the Social Security Act, as amended, 42 U.S.C. § 405(g).
(Compl., ECF No. 1). On January 12, 2018, the Commissioner,
by counsel Helen Campbell Altmeyer, Assistant United States
Attorney, filed an answer and the administrative record of
the proceedings. (Answer, ECF No. 6; Admin. R., ECF No. 7).
On February 12, 2018, Plaintiff filed her Motion for Summary
Judgment. (Pl.'s Mot. for Summ. J. (“Pl.'s
Mot.”), ECF No. 9. On March 13, 2018, Defendant filed a
Motion to Remand the case to the Commissioner of Social
Security. (Def.'s Mot. to Remand (“Def.'s
Mot.”), ECF No. 10). Following review of the motions by
the parties and the administrative record, the undersigned
Magistrate Judge now issues this Report and Recommendation to
the District Judge, and respectfully
RECOMMENDS that Defendant's motion be
GRANTED and this case be
REMANDED to the Commissioner, for the
reasons set forth below.
motion, Defendant asks this Court to 1) remand this case to
the Commissioner pursuant to sentence four of 42 U.S.C.
§ 405(g) to permit additional review, and to 2) enter a
final judgment in accordance with Federal Rule of Civil
Procedure 58. (ECF No. 10 at 1). In support, Defendant
advises that the Appeals Council, upon further review, has
determined that further evaluation of Plaintiff's claim
is warranted. Id. Accordingly, Defendant desires to
have the case remanded in order to refer the claim to an
Administrative Law Judge (“ALJ”) for
reconsideration of Plaintiff's education level,
subsequent re-application of the Medical-Vocational
Guidelines using the appropriate education level, and issue a
new decision. Id. at 1-2. Defendant further
represents that Plaintiff was consulted by counsel and has no
objection to her motion being granted. Id. at 2.
district court may remand a final decision of the Secretary
only as provided in sentences four and six of 42 U.S.C.
§ 405(g).” Melkonyan v. Sullivan, 501
U.S. 89, *90, 111 S.Ct. 2157, **2159 (1991). Sentence four of
42 U.S.C. § 405(g) gives the courts the “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.” Sentence six of
42 U.S.C. § 405(g) authorizes the court to remand in two
scenarios: 1) “on motion of the Commissioner of Social
Security made for good cause shown before the Commissioner
files the Commissioner's answer, ” or 2) upon a
Plaintiff's “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.” When remanding under sentence six,
whether upon motion by the Commissioner (1) or for new
evidence shown by a Plaintiff (2), a court does not enter a
final judgment; a remand under sentence four, however,
requires a final judgment by the district court.
remand is sought now upon motion of the Commissioner - a
situation ordinarily contemplated under sentence six - the
Commissioner's answer has already been filed; moreover,
the Commissioner's motion does not assert or address good
cause. Accordingly, remand under sentence four of 42 U.S.C.
§ 405(g), and entry of a final judgment terminating the
action in Plaintiff's favor, appears to be most
appropriate in this case.
motion, the Commissioner has conceded that her decision
denying the Plaintiff's application for Disability
Insurance Benefits and Supplemental Security Income requires
further evaluation, and therefore the undersigned concludes
that the existing decision of the Commissioner is not
supported by substantial evidence. (ECF No. 10 at 1).
Accordingly, the undersigned RECOMMENDS
1. Defendant's Unopposed Motion to Remand (ECF No. 10) be
2. The decision of the Commissioner be
REVERSED, and this case be
REMANDED pursuant to sentence four of 42
U.S.C. § 405(g) for further proceedings consistent with
Defendant's motion to remand; and
3. The Clerk of Court be directed to terminate
Plaintiff's pending Motion for Summary Judgment (ECF No.
9) enter judgment accordingly in Plaintiff's favor.
addition, a “claimant who obtains a sentence-four
judgment reversing the Secretary's denial of benefits
meets the description of a ‘prevailing
party'” under 28 U.S.C. § 2412(a)(1).
Shalala v. Schaefer, 509 U.S. 292, *293 (1993). 28
U.S.C. § 2142(d)(1)(B) further specifies that a
prevailing party seeking an award of fees must submit an
application for same within thirty (30) days of final
judgment. Because a final administrative decision is not a
“final judgment” per Melkonyan,
Plaintiffs thirty-day (30) time limit for application for
attorney's fees begins to run when final judgment is
entered by the District Court; not after the
Commissioner issues a new decision following remand.
Shalala v. Schaefer, 509 U.S. 292 (1993).
party may, within fourteen (14) days after being served with
a copy of this Report and Recommendation, file with the Clerk
of the Court written objections identifying the portions of
the Report and Recommendation to which objections are made,
and the basis for such objections. A copy of such objections
should also be submitted to the Honorable Frederick P. Stamp,
Jr., United States District Judge. Failure to timely file
objections to the Report and Recommendation set forth above
will result in waiver of the right to appeal from a judgment
of this Court based upon such Report and Recommendation. 28
U.S.C. § 636(b)(1); United States v. Schronce,
727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S.
1208 (1984); Wright v. Collins, 766 F.2d 841 (4th
Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
Court DIRECTS the Clerk of the Court to
provide a copy of this Report and Recommendation to all
counsel of record, as provided in the Administrative
Procedures for Electronic Case Filing in the United States
District Court for the Northern District of West Virginia.
Additionally, as this report and recommendation concludes the
referral from the District ...