Opinion
Case No: 6:14-cv-1963-Orl-28TBS
09-01-2015
WILLIAM NORMAN SCHUMACHER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Pending before the Court is the Commissioner of Social Security's Unopposed Motion for Entry of Judgment with Remand (Doc. 15). The Commissioner requests that the case be remanded pursuant to sentence four of 42 U.S.C. § 405(g) so that the administrative law judge can further develop the record, consider any new, updated, or additional evidence for the relevant time period, and take further action as necessary, and issue a new decision (Id.). Pursuant to M.D. FLA. R. 3.01(g), counsel for the Commissioner represents that Plaintiff's attorney has been contacted and has no objection to the requested relief.
The two, "exclusive methods in which district courts may remand to the Secretary are set forth in sentence four and sentence six of 42 U.S.C. § 405(g) ...." Shalala v. Schaefer, 509 U.S. 292, 296,113 S.Ct. 2625, 125 L.Ed.2d 239 (1993). Under sentence four, "[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." Sentence six provides that "[t]he court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action ...." 42 U.S.C. § 405(g). "Immediate entry of judgment (as opposed to entry of judgment after postremand agency proceedings have been completed and their results filed with the court) is in fact the principal feature that distinguishes a sentence-four remand from a sentence-six remand." Id., at 297. The Eighth Circuit has observed that "[a] substantive ruling on the merits of the case is a second factor distinguishing sentence-four from sentence-six remands. Pottsmith v. Barnhart, 306 F.3d 526, 528 (8th Cir. 2002) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991)).
The Commissioner seeks remand pursuant to sentence four (Doc. 12, at 1-2). Under sentence four, the Court is empowered to reverse the decision of the Commissioner with or without remanding the cause for a rehearing. Shalala v. Schaefer, 509 U.S. 292 (1993). The failure of the administrative law judge to fully develop the record constitutes sufficient grounds for remand. Brissette v. Heckler, 730 F.2d 548 (8th Cir. 1984), appeal after remand 613 F. Supp. 722 (E.D. Mo. 1985), judgment aff'd in part, rev'd in part, 784 F.2d 864 (8th Cir. 1986). A sentence-four remand may also be appropriate to allow the Commissioner to explain the basis for her administrative decision. Falcon v. Heckler, 732 F.2d 827, 829-30 (11th Cir. 1984) (holding remand was appropriate to allow the administrative law judge to explain the basis for the determination that the claimant's depression did not significantly affect her ability to work and treating psychologist acknowledged that claimant had improved in response to treatment and could work in a supportive, noncompetitive, tailor-made work environment). Upon remand of the case under sentence-four, the administrative law judge must review the complete case record, including any new material evidence. Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (finding that it was necessary for the administrative law judge on remand to consider psychiatric report tendered to Appeals Council); Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984) (holding that the administrative law judge should consider on remand the need for an orthopedic evaluation). The Commissioner's recognition that the administrative law judge needs to further develop the record and issue a new decision is a good ground for remand under sentence four. Accordingly, I respectfully recommend the Court:
1. Grant the Commissioner's motion (Doc. 15);
2. Reverse and remand this action to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g);
3. Advise the parties that it is expected that on remand, the administrative law judge will more fully develop the record, consider any new, updated or additional evidence for the relevant time period, and issue a new decision;
4. Direct the Clerk to enter judgment accordingly, terminate any pending motions, and close the file; and
5. Advise Plaintiff that the deadline to file a motion for attorney's fees pursuant to 42 U.S.C. § 406(b) shall be thirty (30) days after Plaintiff receives notice from the Social Security Administration of the amount of past due benefits awarded. And, direct that upon receipt of the notice, counsel for Plaintiff shall promptly email Mr. Rudy and the OGC attorney who prepared the Government's brief to advise that the notice has been received.
A party failing to file written objections to a magistrate judge's findings or recommendations within fourteen (14) days of issuance of the Report and Recommendation, waives the right to challenge on appeal the district court's order based on unobjected-to factual findings and legal conclusions.
RECOMMENDED in Orlando, Florida on September 1, 2015.
/s/_________
THOMAS B. SMITH
United States Magistrate Judge
Copies furnished to
Presiding District Judge
Counsel of Record