Raspberry v. Kijakazi ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LESLIE RASPBERRY,
Plaintiff,
v. Case No. 22-cv-236-RMM
KILOLO KIJAKAZI, Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION
Leslie Raspberry brought this case seeking judicial review of a decision of the
Commissioner of Social Security (the “Commissioner”) to deny her Disability Insurance
Benefits. See Compl. ¶¶ 2–4, ECF No. 1. She moved for entry of a judgment reversing the
Commissioner’s decision or, in the alternative, remanding the decision for further administrative
proceedings, on the theory that the Commissioner’s decision was arbitrary and capricious and
was not supported by substantial evidence. See Mot. for J. of Reversal, ECF No. 12. Rather than
respond to Ms. Raspberry’s motion, the Commissioner filed a Motion to Remand, requesting that
the Court remand Ms. Raspberry’s claim “so that the Commissioner may remand the claim to an
administrative law judge to hold a new hearing and issue a new decision.” Def. Mot. for
Remand at 1, ECF No. 13. Ms. Raspberry 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. See 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 Civil 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
Ms. Raspberry’s Motion for Judgment of Reversal was due by January 23, 2023. See Dec. 1,
2022 Min. Order. The Commissioner has not filed an opposition. She has thus conceded the
arguments in Ms. Raspberry’s motion and brief in support.
Judge Randolph D. Moss referred this case to the undersigned for all purposes. See Nov.
3, 2022 Min Order. For the reasons set forth above, it is hereby ORDERED that Ms.
Raspberry’s Motion for Judgment of Reversal is GRANTED. Consistent with sentence four of
Section 405(g) and the Commissioner’s unopposed motion for remand, it is further ORDERED
that the Commissioner’s Motion for Remand is GRANTED, and this matter shall be
REMANDED for further administrative proceedings.
Date: February 21, 2023
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
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