Opinion
CA 00-0660-AH-C
February 1, 2001
REPORT AND RECOMMENDATION
The Commissioner has moved for entry of judgment under sentence four of 42 U.S.C. § 405 (g) with remand of this cause for further proceedings. (Doc. 13) The Commissioner proposes a remand for further administrative proceedings to allow the Administrative Law Judge to (1) further consider the claimant's subjective complaints; and (2) further evaluate claimant's ability to return to her past relevant work. (See id. at 1)
On January 30, 2001, the undersigned's office informed the office of plaintiff's counsel, Rose A. McPhillips, Esquire, that the defendant had filed a motion to remand and on January 31, 2001, the undersigned's office received a voice-mail message from Ms. McPhillips that the plaintiff would interpose no objection to the motion to remand.
In light of the foregoing, and the plain language of sentence four of 42 U.S.C. § 405 (g) empowering this Court "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[,]" the Magistrate Judge recommends that this cause be reversed and remanded pursuant to sentence four of § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991), for further proceedings. The remand pursuant to sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, Shalala v. Schaefer, 509 U.S. 292, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), and terminates this Court's jurisdiction over this matter.
The oral argument previously scheduled in this case for February 13, 2001 (Doc. 12) is CANCELLED.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.