Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ELIZABETH B BARKER, 

Plaintiff,

v. CASE NO. 4:11-cv-00070-MP-CAS

MICHAEL J ASTRUE, 

Defendant.

_____________________________/

O R D E R

This matter is before the Court on Doc. 31, Report and Recommendation, of the

Magistrate Judge, recommending that the decision of the Commissioner to deny Plaintiff's

applications for Social Security benefits be reversed and this case remanded to the

Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). The time for filing objections

has passed, and none have been filed. Upon consideration, the Court agrees that this case

should be remanded for further development of the record. 

A remand under sentence four is considered a final judgment. Bergen v. Commissioner,

454 F.3d 1273 (11th Cir. 2006). Thus, absent a court order stating otherwise, a successful

plaintiff’s counsel would normally have fourteen days after the order of remand to file a motion

with the District Court requesting an award of attorney fees. Fed. R. Civ. P. 54(d)(2)(B). This

Rule has been interpreted by the Eleventh Circuit to even apply to a request for fees to be paid

from plaintiff’s past due benefits pursuant to 42 U.S.C. § 406(b)(1). Bergen, 454 F.3d at

1277-78. However, plaintiff's counsel in such a case will not know the amount of benefits - and

therefore fees - until after the Commissioner awards benefits, which typically takes longer than

Case 4:11-cv-00070-MP-CAS Document 32 Filed 09/27/12 Page 1 of 2
Page 2 of 2

fourteen days after the entry of judgment. Therefore, an extension of time to seek such fees is

warranted, and was recommended by the Bergen opinion. Id. Accordingly, it is hereby

ORDERED AND ADJUDGED:

The Report and Recommendation of the Magistrate Judge is adopted, the decision of the

Administrative Law Judge is reversed, and this matter is remanded to the Commissioner.

This Clerk is directed to enter final judgment remanding this case to the Commissioner

under sentence four of 42 U.S.C. § 405(g) for further administrative proceedings

consistent with the findings in the Report and Recommendation. Specifically, on remand

the Commissioner shall reconsider the diagnosis and severe impairment of fibromyalgia

(as found by the ALJ, Doc. 26, attach. 3, p. 17) and other impairments if applicable, and

determine the effects of these impairments upon Plaintiff's ability to do work in light of

all of the evidence presented, including the May 2009 letters from Drs. Patacxil and

Tidmore. The ALJ should contact Dr. Staud and obtain any examination and treatment

notes and opinions from Dr. Staud, and from any other sources deemed appropriate

Pursuant to Bergen, proceedings on attorney fees under the Social Security Act, 42

U.S.C. § 406(b) are stayed until the matter is fully adjudicated upon remand. The

plaintiff shall file a motion to award fees under 406(b) within 30 days after counsel

receives notice from the Commissioner as to plaintiff’s past due benefits.

This stay relates only to attorney fee proceedings under § 406(b) of the Social Security

Act, not to attorney fee proceedings under the Equal Access to Justice Act, 28 U.S.C. §

2412, the latter of which may be adjudicated at this time. 

DONE AND ORDERED this 27th day of September, 2012

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

Case No: 4:11-cv-00070-MP-CAS

Case 4:11-cv-00070-MP-CAS Document 32 Filed 09/27/12 Page 2 of 2