-GRJ FRAME v. ASTRUE, No. 1:2010cv00142 - Document 23 (N.D. Fla. 2011)

Court Description: ORDER ON REPORT AND RECOMMENDATION; ADOPTING 22 Report and Recommendations re 21 Motion to Remand. Signed by SENIOR JUDGE MAURICE M PAUL on 5/23/2011. This Clerk is directed to enter final judgment remanding this case to the C ommissioner under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings in order to evaluate plaintiffs mental functioning and specifically determine whether her condition meets or equals any listed impairment at Step Three of the sequential evaluation process. Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42U.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 Plaintiffs past due benefits. (kdm)

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-GRJ FRAME v. ASTRUE Doc. 23 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION ALICE FRAME, Plaintiff, v. CASE NO. 1:10-cv-00142-MP -GRJ MICHAEL J ASTRUE, Defendant. _____________________________/ ORDER This matter is before the Court on Doc. 22, the Report and Recommendation of the Magistrate Judge, recommending that the motion to remand, filed by the defendant, and agreed to by the plaintiff, be granted. The Court agrees that a 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 Dockets.Justia.com Page 2 of 2 fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is warranted, and was recommended by the Bergen opinion. Id. Accordingly, it is hereby ORDERED AND ADJUDGED: This 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 in order to evaluate plaintiff’s mental functioning and specifically determine whether her condition meets or equals any listed impairment at Step Three of the sequential evaluation process. 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 23rd day of May, 2011 s/Maurice M. Paul Maurice M. Paul, Senior District Judge Case No: 1:10-cv-00142-MP -GRJ

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