Lusher v. Berryhill, No. 3:2017cv04115 - Document 12 (S.D.W. Va. 2018)
Court Description: MEMORANDUM OPINION granting Claimant's 9 Motion for Judgment on the Pleadings, to the extent that it requests reversal and remand; granting Defendant's 10 Motion to Remand; reversing the final decision of the Commissioner; remanding thi s matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion; and dismissing this action from the docket of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 3/28/2018. (cc: counsel of record) (jsa)
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Lusher v. Berryhill Doc. 12 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA H U N TIN GTON D IVISION AMY KATH LEEN LU SH ER, Plain tiff, v. Cas e N o .: 3 :17-cv-0 4 115 N AN CY A. BERRYH ILL, Actin g Co m m is s io n e r o f th e So cial Se cu rity Ad m in is tratio n , D e fe n d an t. MEMORAN D U M OPIN ION This is an action seeking review of the decision of the Com m issioner of the Social Security Adm inistration (hereinafter the “Com m issioner”) denying Plaintiff’s application for supplem ental security incom e (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The case is presently before the court on the plaintiff’s m otion for judgm ent on the pleadings, seeking, inter alia, reversal and rem and of the Com m issioner’s decision, and on the defendant’s m otion to rem and. (ECF Nos. 9, 10 ). Both parties have consented in writing to a decision by the United States Magistrate J udge. (ECF No. 11). The court has fully considered the issues and GRAN TS both m otions. Accordingly, the court FIN D S that the decision of the Com m issioner should be REVERSED and REMAN D ED , pursuant to sentence four of 42 U.S.C. § 40 5(g), for further evaluation of Plaintiff’s application as stated herein. Plaintiff, Am y Kathleen Lusher (“Claim ant”), com pleted an application for SSI on April 2, 20 14, alleging a disability onset date of Novem ber 9, 20 0 9, (Tr. at 194), due to 1 Dockets.Justia.com atrophying spleen, underweight-m alnourished, back pain, pain in legs, anxiety, depression, m yocardial infarction, arthritis, and bilateral knee pain. (Tr. at 252). The Social Security Adm inistration (“SSA”) denied the application initially and upon reconsideration. (Tr. at 28). Claim ant filed a request for a hearing, which was held on March 23, 20 16 before the Honorable J ohn M. Wood, Adm inistrative Law J udge (“ALJ ”). (Tr. at 51-80 ). By written decision dated J une 1, 20 16, the ALJ determ ined that Claim ant was not entitled to benefits. (Tr. at 28-44). The ALJ ’s decision becam e the final decision of the Com m issioner on J uly 29, 20 17, when the Appeals Council denied Claim ant’s request for review. (Tr. at 9-11). On October 3, 20 17, Claim ant filed the present civil action seeking judicial review of the adm inistrative decision pursuant to 42 U.S.C. § 40 5(g). (ECF No. 2). The Com m issioner filed an Answer on February 5, 20 18, along with a Transcript of the Proceedings. (ECF Nos. 7, 8). Thereafter, Claim ant filed a brief in support of judgm ent on the pleadings, requesting rem and of the Com m issioner’s decision under sentence four 42 U.S.C. § 40 5(g). (ECF No. 9). Claim ant asserted, in relevant part, that reversal and rem and were appropriate, because the ALJ had failed to follow relevant regulations and agency rulings in evaluating Claim ant’s application for benefits. (Id.). On March 23, 20 18, the Com m issioner filed a m otion for rem and under sentence four of 42 U.S.C. § 40 5(g), acknowledging that the ALJ ’s decision denying benefits m erited further evaluation. (ECF No. 10 ). The Com m issioner represented that Claim ant agreed to a sentence four rem and. Title 42 U.S.C. § 40 5(g) authorizes the district court to rem and the decision of the Com m issioner of Social Security for further consideration at different stages of the judicial proceedings. When the Com m issioner requests rem and prior to filing an answer to the plaintiff’s com plaint, the presiding court m ay grant the request under sentence six 2 of § 40 5(g), upon a showing of good cause. In addition, a court may rem and the m atter “at any tim e” under sentence six to allow “additional evidence to be taken before the Com m issioner of Social Security, but only upon a showing that there is new evidence which is m aterial and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 40 5(g). When a court rem ands the Com m issioner’s decision under sentence six, the court retains jurisdiction over the m atter, but “closes it and regards it as inactive” until additional or m odified findings are supplied to the court. See McPeak v. Barnhart, 388 F.Supp.2d 742, 745 n.2. (S.D.W. Va. 20 0 5). In contrast, under sentence four of 42 U.S.C. § 40 5(g), “[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgm ent affirm ing, m odifying, or reversing the decision of the Com m issioner of Social Security, with or without rem anding the cause for a rehearing.” Because a sentence four rem and effectively “term inates the litigation with victory for the plaintiff,” the court enters a final judgm ent dism issing the case and rem oving it from the court’s docket. Shalala v. Schaefer, 50 9 U.S. 292, 299 (1993) (“Under § 40 5(g), ‘each final decision of the Secretary [is] reviewable by a separate piece of litigation,” and a sentence-four remand order ‘term inate[s] the civil action’ seeking judicial review of the Secretary's final decision.”) (quoting in Sullivan v. Hudson, 490 U.S. 877, 892 (1989)). Given that Claim ant m oved this court to reverse and rem and the decision of the Com m issioner, and the Com m issioner ultim ately agreed to a rem and without contesting the argum ents raised by Claim ant, the court concludes that Claim ant is entitled to reversal and rem and of the Com m issioner’s decision on the grounds asserted in her brief. Moreover, the court notes that in her m otion to rem and, the Com m issioner asks for a 3 sentence four rem and; thereby, im plicitly conceding term ination of the judicial proceeding in Claim ant’s favor. Accordingly, the court hereby GRAN TS Claim ant’s m otion for judgm ent on the pleadings, to the extent that it requests reversal and rem and under sentence four, (ECF No. 9); GRAN TS Defendant’s m otion to rem and, (ECF No. 10 ); REVERSES the final decision of the Com m issioner; REMAN D S this m atter pursuant to sentence four of 42 U.S.C. § 40 5(g) for further adm inistrative proceedings consistent with this opinion; and D ISMISSES this action from the docket of the Court. A J udgm ent Order will be entered accordingly. The Clerk of this Court is directed to transm it copies of this Mem orandum Opinion to counsel of record. EN TERED : March 28, 20 18 4
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