IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

 

SHANNA DUNKLEBARGER, §

 § 

Plaintiff, §

 §

v. § Civil Action No. 4:22-cv-00804-O-BP

 §

KILOLO KIJAKAZI, ACTING §

COMMISSIONER OF SOCIAL §

SECURITY, §

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant’s Unopposed Motion to Reverse and Remand filed March 

24, 2023. ECF No. 19. Defendant seeks a remand pursuant to the fourth sentence of 42 U.S.C. § 

405(g). For good cause shown, the undersigned recommends that United States District Judge 

Reed O’Connor GRANT the Motion, REVERSE this case, and REMAND it to the 

Commissioner for further administrative action. 

In Melkonyan v. Sullivan, 501 U.S. 89, 97–102 (1991), the Supreme Court made clear that 

there are only two types of remand orders permitted under 42 U.S.C. § 405(g). The first method 

arises under “[t]he fourth sentence of § 405(g) [that] authorizes a court to enter ‘a judgment 

affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding 

the cause for a rehearing.’” Id. at 98 (citing 42 U.S.C. § 405(g)). A sentence four remand “requires 

the district court to enter a decision on the merits before remanding a case to the Commissioner.” 

Schriner v. Comm’r, Soc. Sec. Admin., No. 3:08-CV-2042-N, 2010 WL 2941120, at *15 (N.D. 

Tex. June 22, 2010), adopted by, 2010 WL 2944782 (N.D. Tex. July 22, 2010) (citing Melkonyan, 

501 U.S. at 98).

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The second method arises under the sixth sentence of § 405(g) and “may be ordered in only 

two situations: where the [Commissioner] requests a remand before answering the complaint, or 

where new, material evidence is adduced that was for good cause not presented before the agency.” 

Shalala v. Shaefer, 509 U.S. 292, 297 (1993) (citing § 405(g); Melkonyan, 501 U.S. at 99–100). 

Under sentence six, “[t]he district court does not . . . rule in any way as to the correctness of the 

administrative determination. Rather, the court remands” the case for reconsideration if the “new 

evidence might have changed the outcome of the [ ] proceeding.” Melkonyan, 501 U.S. at 98. The 

“[i]mmediate entry of judgment (as opposed to entry of judgment after post-remand agency 

proceedings have been completed and their results filed with the court) is the principal feature that 

distinguishes a sentence-four remand from a sentence-six remand.” Chelette v. United States 

Comm’r of Soc. Sec., No. 1:11-CV-1860, 2012 WL 2870842, at *2 (W.D. La. June 12, 2012), 

adopted by, 2012 WL 2873635 (W.D. La. July 12, 2012) (citing Shaefer, 509 U.S. at 296–97 and 

Istre v. Apfel, 208 F.3d 517, 520 (5th Cir. 2000)).

Here, the Commissioner’s Motion is unopposed. ECF No. 19. Further, Defendant has 

already answered the complaint and does not argue any new, material evidence might have 

changed the outcome of the administrative proceedings. Under these circumstances, remand under 

sentence four of 42 U.S.C. § 405(g) is appropriate. Having considered Defendant’s Motion (ECF 

No. 19), and noting that it is unopposed, the undersigned RECOMMENDS that Judge O’Connor 

GRANT the Motion, REVERSE this case, and REMAND it to the Commissioner for further 

administrative action. 

A copy of these findings, conclusions, and recommendation shall be served on all parties 

in the manner provided by law. Any party who objects to any part of these findings, conclusions, 

and recommendation must file specific written objections within fourteen days after being served 

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with a copy. See 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). In order to be specific, an 

objection must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place in the magistrate judge’s findings, conclusions, 

and recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the magistrate judge is not specific. 

Failure to file specific written objections will bar the aggrieved party from appealing the factual 

findings and legal conclusions of the magistrate judge that are accepted or adopted by the district 

court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass’n, 79 F.3d 

1415, 1417 (5th Cir. 1996) (en banc).

It is so ORDERED on March 27, 2023.

______________________________________

Hal R. Ray, Jr.

UNITED STATES MAGISTRATE JUDGE

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