Filed: Sep. 21, 2018
Latest Update: Sep. 21, 2018
Summary: ORDER KATHERINE P. NELSON , Magistrate Judge . Plaintiff Curtis Smith brought this action under 42 U.S.C. 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security ("the Commissioner") dated April 18, 2017, denying his applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. 401, et seq., and for supplemental security income ("SSI") under Title XVI of
Summary: ORDER KATHERINE P. NELSON , Magistrate Judge . Plaintiff Curtis Smith brought this action under 42 U.S.C. 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security ("the Commissioner") dated April 18, 2017, denying his applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. 401, et seq., and for supplemental security income ("SSI") under Title XVI of ..
More
ORDER
KATHERINE P. NELSON, Magistrate Judge.
Plaintiff Curtis Smith brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the Defendant Commissioner of Social Security ("the Commissioner") dated April 18, 2017, denying his applications for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C.§ 401, et seq., and for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 73. (See Doc. 24).
In response to Smith's motion to correct, brief and fact sheet (Docs. 15, 16, 17) listing the specific errors upon which he seeks reversal of the Commissioner's decision, the Commissioner filed a motion to remand Smith's case for rehearing under sentence four of 42 U.S.C. § 405(g) ("The [district ]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."),1 representing that Smith consents to the motion.2 (Doc. 23).
Upon consideration, it is ORDERED that the Commissioner's consent motion to remand (Doc. 23) is GRANTED. The Commissioner's April 18, 2017 final decision denying Smith a period of disability, DIB benefits, and SSI benefits is REVERSED, and this cause is REMANDED for a rehearing under sentence four of § 405(g). Securing a "sentence four" remand makes Smith a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and terminates this Court's jurisdiction over this cause.
In the event Smith is awarded Social Security benefits on the subject applications following this remand, under Federal Rule of Civil Procedure 54(d)(2)(B) the Court hereby grants Smith's counsel an extension of time in which to file a motion for fees under 42 U.S.C. § 406(b) (applicable to SSI claims under 42 U.S.C. § 1383(d)(2)(A)) until thirty days after the date of receipt of a notice of award of benefits from the SSA.3 Consistent with 20 C.F.R. § 422.210(c), "the date of receipt of notice . . . shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary." If multiple award notices are issued, the time for filing a § 406(b) fee motion shall run from the date of receipt of the latest-dated notice.
Final judgment shall issue separately in accordance with this Order and Federal Rule of Civil Procedure 58.
DONE and ORDERED.
