Burnham v. Commissioner of Social Security Administration ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA Lisa B.,1 ) C/A No.: 1:21-2203-SAL-SVH ) Plaintiff, ) ) vs. ) ) ORDER Kilolo Kijakazi,2 Acting ) Commissioner of Social Security ) Administration, ) ) Defendant. ) ) Defendant, Kilolo Kijakazi, Acting Commissioner of the Social Security Administration (“Commissioner”), by her attorneys, M. Rhett DeHart, Acting United States Attorney for the District of South Carolina, and Beth Drake, Assistant United States Attorney for said district, has moved this court, pursuant to 42 U.S.C. § 405(g), to enter a judgment with an order of reversal with remand of the cause to the Commissioner for further administrative proceedings. [ECF No. 10]. The motion represents that Plaintiff’s counsel consents to the motion. 1 The Committee on Court Administration and Case Management of the Judicial Conference of the United States has recommended that, due to significant privacy concerns in social security cases, federal courts should refer to claimants only by their first names and last initials. 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Fed. R. Civ. P. 25(d), she is substituted for former Plaintiff filed a brief alleging the Commissioner erred: (1) in denying her claim at step two of the evaluation process based on a finding that her impairments were non-severe; and (2) in discounting her subjective allegations based on a failure to obtain additional treatment, without engaging in the requisite inquiry. [ECF No. 9]. The Commissioner declines to address these issues individually, but concedes that remand is appropriate pursuant to sentence four of 42 U.S.C. § 405(g), which authorizes the court to remand the case where the Commissioner’s decision is not supported by substantial evidence or where she failed to apply the proper legal standard. [ECF No. 10]. Pursuant to the power of this court to enter a judgment affirming, modifying, or reversing the Commissioner’s decision with remand in Social Security actions under sentence four of 42 U.S.C. § 405(g),3 and given the Commissioner’s request for remand, this court hereby reverses the Commissioner’s decision under sentence four of 42 U.S.C. § 405(g) with a remand of the cause to the Commissioner for further administrative proceedings. , 509 U.S. 292 (1993). Upon remand, the Appeals Council shall vacate the Administrative Law Judge’s (“ALJ’s”) decision and refer the case to an ALJ to further evaluate the evidence, 3 Pursuant to the court’s standing order, , M-90-3-FBH, and in accord with 28 U.S.C. § 636(c), the undersigned is authorized to enter judgment in provide Plaintiff an opportunity for another hearing, and issue a new decision. The Clerk of Court is directed to enter a separate judgment pursuant to Fed. R. Civ. P. 58. IT IS SO ORDERED. PP Ut Lladger November 22, 2021 Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge