LEWIS v. ASTRUE, No. 1:2009cv00206 - Document 27 (N.D. Fla. 2011)

Court Description: ORDER ON 25 REPORT AND RECOMMENDATION: Decision of Administrative Law Judge is REVERSED, and this matter is REMANDED to the Commissioner. Clerk is directed to enter final judgment remanding this case to Commissioner for further administrative proceedings. Proceedings on attorney fees STAYED until matter is fully adjudicated upon remand. Signed by SENIOR JUDGE MAURICE M PAUL on 6/7/2011. (jws)

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LEWIS v. ASTRUE Doc. 27 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION RUBY LEWIS, Plaintiff, v. CASE NO. 1:09-cv-00206-MP-GRJ MICHAEL J ASTRUE, Defendant. _____________________________/ ORDER This matter is before the Court on Doc. 25, Report and Recommendation of the Magistrate Judge, recommending that the finding of the Administrative Law Judge be reversed and this matter remanded for further consideration. The plaintiff does not oppose this remand and no objections have been filed. The Court agrees with the Magistrate Judge that remand is appropriate under sentence four of 42 U.S.C. § 405(g). A remand under sentence four is considered a final judgment. Bergen v. Commissioner, 454 F.3d 1273 (11th Cir. 2006). Thus, absent a court order stating otherwise, a successful Plaintiff’s counsel would normally have fourteen days after the order of remand to file a motion with the District Court requesting an award of attorney fees. Fed. R. Civ. P. 54(d)(2)(B). This Rule has been interpreted by the Eleventh Circuit to even apply to a request for fees to be paid from Plaintiff’s past due benefits pursuant to 42 U.S.C. § 406(b)(1). Bergen, 454 F.3d at 1277-78. However, Plaintiff's counsel in such a case will not know the amount of benefits - and therefore fees - until after the Commissioner awards benefits, which typically takes longer than fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is Dockets.Justia.com Page 2 of 2 warranted, and was recommended by the Bergen opinion. Id. Accordingly, it is hereby ORDERED AND ADJUDGED: The Report and Recommendation of the Magistrate Judge is adopted, the decision of the Administrative Law Judge is reversed, and this matter is remanded to the Commissioner. The Clerk is directed to enter final judgment remanding this case to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. On remand the administrative law judge should obtain updated intelligence quotient (IQ) scores and specifically consider whether Plaintiff continues to meet the criteria of Listing 12.05(C). Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42 U.S.C. § 406(b) are stayed until the matter is fully adjudicated upon remand. The Plaintiff shall file a motion to award fees under 406(b) within 30 days after counsel receives notice from the Defendant Commissioner as to Plaintiff’s past due benefits. This stay relates only to attorney fee proceedings under § 406(b) of the Social Security Act, not to attorney fee proceedings under the Equal Access to Justice Act, 28 U.S.C. § 2412, the latter of which may be adjudicated at this time. DONE AND ORDERED this 7th day of June, 2011 s/Maurice M. Paul Maurice M. Paul, Senior District Judge Case No: 1:09-cv-00206-MP-GRJ

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