Keen v. Social Security Administration Commissioner ( 2022 )

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION CAROL DIANE KEEN PLAINTIFF v. CIVIL NO. 22-5115 KILOLO KIJAKAZI, Acting Commissioner DEFENDANT Social Security Administration MAGISTRATE JUDGE’S REPORT AND RECOMMENDATIONS Plaintiff, Carol Diane Keen, brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision of the Commissioner of the Social Security Administration (Commissioner) denying her claim for a period of disability, disability insurance benefits (“DIB”), and supplemental security income (“SSI”) benefits under Titles II and XVI of the Social Security Act (Act). (ECF No. 2). The Defendant filed an Answer to Plaintiff's action on October 18, 2022, asserting that the findings of the Commissioner were supported by substantial evidence and were conclusive. (ECF No. 9). On December 16, 2022, the Commissioner, having changed positions, filed an unopposed motion requesting that Plaintiff's case be remanded pursuant to "sentence four" of section 405(g) in order to conduct further administrative proceedings. (ECF Nos. 14, 15). The exclusive methods by which a district court may remand a social security case to the Commissioner are set forth in "sentence four" and "sentence six" of 42 U.S.C. § 405(g). A remand pursuant to "sentence six" is limited to two situations: where the Commissioner requests a remand before answering the complaint, or where the court orders the Commissioner to consider new, material evidence that was for good cause not presented before the agency. The fourth sentence of the statute provides that "[t]he 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.” 42 U.S.C. § 405(g); Shalala v. Schaefer, 509 U.S. 292, 296 (1993). Here, the Court finds remand for the purpose of the ALJ to further evaluate the evidence appropriate. Based on the foregoing, it is recommended that the Commissioner’s unopposed motion to reverse the decision of the ALJ be granted, and the case be remanded back to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). The parties have fourteen (14) days from receipt of this report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court. DATED this 16th day of December 2022. /s/ Meaty Cometock HON. CHRISTY COMSTOCK UNITED STATES MAGISTRATE JUDGE