Birch v. Kijakazi (CONSENT), No. 2:2020cv01050 - Document 17 (M.D. Ala. 2021)
Court Description: MEMORANDUM OPINION AND ORDER: it is ORDERED that the Commissioner's 16 motion is GRANTED. The decision of the Commissioner is REVERSED and REMANDED for further proceedings under 42 U.S.C. 405(g). It is further ORDERED that, in accordance wi th Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 n.2 (11th Cir. 2006), Plf has 90 days after receipt of notice of an award of past due benefits to seek attorneys fees under 42 U.S.C. 406(b). A separate judgment will issue. Signed by Honorable Judge Kelly F. Pate on 8/18/2021. (cwl, )
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Birch v. Kijakazi (CONSENT) Doc. 17 Case 2:20-cv-01050-KFP Document 17 Filed 08/18/21 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION CHARLES BIRCH, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 2:20-CV-1050-KFP MEMORANDUM OPINION AND ORDER The Commissioner has filed an Unopposed Motion for Entry of Judgment with Reversal and Remand of the Cause to the Defendant. Doc. 16. The Commissioner also filed a supporting memorandum asserting that reversal and remand is appropriate in this matter to “fully discuss the persuasiveness, including the supportability and consistency, of each medical opinion and issue a new decision.” Id. at 1. In addition, the parties consented to entry of final judgment by the United States Magistrate Judge under 28 U.S.C. § 636(c). Docs. 12, 13. Sentence Four of 42 U.S.C. § 405(g) authorizes the district court 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). The district court may remand a case to the Commissioner for a rehearing if the court finds “the decision is not supported by substantial evidence [or the Commissioner or ALJ] incorrectly applied the law relevant to the disability claim.” Dockets.Justia.com Case 2:20-cv-01050-KFP Document 17 Filed 08/18/21 Page 2 of 2 Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996). In this case, the Court finds reversal and remand necessary, as Defendant concedes reconsideration of the record is required. See Doc. 16. Accordingly, it is ORDERED that the Commissioner’s motion is GRANTED. The decision of the Commissioner is REVERSED and REMANDED for further proceedings under 42 U.S.C. § 405(g). It is further ORDERED that, in accordance with Bergen v. Comm’r of Soc. Sec., 454 F.3d 1273, 1278 n.2 (11th Cir. 2006), Plaintiff has 90 days after receipt of notice of an award of past due benefits to seek attorney’s fees under 42 U.S.C. § 406(b). See also Blitch v. Astrue, 261 F. App’x 241, 241 n.1 (11th Cir. 2008). A separate judgment will issue. DONE this 18th day of August, 2021. /s/ Kelly Fitzgerald Pate KELLY FITZGERALD PATE UNITED STATES MAGISTRATE JUDGE
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