Hawthorne v. Kijakazi ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIK HAWTHORNE,
Plaintiff,
Case No. 22-cv-00752-RMM
v.
KILOLO KIJAKAZI, Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION
Erik Hawthorne brought this case seeking judicial review of a decision of the
Commissioner to deny his Supplemental Security Income benefits. See Compl., ECF No. 1. He
moved for entry of a judgment vacating the Commissioner’s decision and remanding the matter
for further administrative proceedings, on the theory that the Commissioner’s decision lacks a
substantial evidentiary basis and is erroneous as a matter of law. See Mot. for J. of Reversal,
ECF No. 16. Rather than respond to Mr. Hawthorne’s motion, the Commissioner filed a Motion
for Entry of Judgment with Remand, requesting that the Court remand Mr. Hawthorne’s claim
“so that the Commissioner may remand the claim to an administrative law judge to offer Plaintiff
the opportunity for a new hearing and issue a new decision.” Def.’s Mot. for Remand, ECF No.
17 at 1. Mr. Hawthorne does not oppose the Commissioner’s motion. See id.
This Court has the “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” pursuant to the fourth sentence of
42 U.S.C. § 405(g). A sentence-four remand is appropriate only in conjunction with a final
judgment on the Commissioner’s decision to deny benefits. Melkonyan v. Sullivan, 501 U.S. 89,
99–100 (1991). For that reason, a “substantive ruling on the correctness of [the Commissioner’s]
decision” is a “necessary prerequisite to a sentence-four remand.” Krishnan v. Barnhart, 328
F.3d 685, 692 (D.C. Cir. 2003) (citing Melkonyan, 501 U.S. at 98–101).
The Commissioner has conceded that her decision was incorrect in this matter. Under
this Court’s local rules, when an argument is advanced in support of a motion and the opposing
party fails to counter the argument in a timely opposition brief, the court may treat the argument
as conceded, even if the result is dismissal of the entire case. See Local Rule 7(b); Stephenson v.
Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002) (collecting cases); Bancoult v. McNamara, 227 F.
Supp. 2d 144, 149 (D.D.C. 2002) (same). The Commissioner’s response to Mr. Hawthorne’s
Motion for Judgment of Reversal was due on October 31, 2022. See July 7, 2022 Min. Order.
The Commissioner did not file an opposition or seek an extension of time to do so. She has thus
conceded the arguments in Mr. Hawthorne’s motion and brief in support, and the Court
accordingly GRANTS Mr. Hawthorne’s Motion for Judgment of Reversal. Consistent with
sentence four of Section 405(g) and the Commissioner’s unopposed motion for remand, the
Court also GRANTS the Commissioner’s Motion for Remand and REMANDS this matter for
further administrative proceedings.
SO ORDERED this February 17, 2023.
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE