IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CYNTHIA FAIR, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 04-0775-CG-L

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

REPORT AND RECOMMENDATION

This matter is before the court on defendant’s motion and memorandum for entry of judgment

pursuant to sentence four of § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), with remand to

defendant for further proceedings. (Doc.12). This motion has been referred to the undersigned for a

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(3). 

Defendant states that the case should be remanded to an Administrative Law Judge (ALJ) for

further administrative proceedings. Defendant states that on remand the Appeals Council will vacate

the July 2003 administrative decision and direct the ALJ to conduct a hearing in accordance with 20

C.F.R. §§ 404.944, 416.1429 (2004) in which plaintiff has the opportunity to testify. Further,

defendant states that the ALJ will properly develop the mental requirements of plaintiff’s past relevant

work and redetermine whether plaintiff can perform her past relevant work as a cook in light of her

residual functional capacity. Defendant also states that if plaintiff cannot perform her past relevant

work, the ALJ will receive testimony from a vocational expert to determine the impact of her nonexertional limitations on her ability to perform other work. 

Case 1:04-cv-00775-CG-D Document 13 Filed 06/07/05 Page 1 of 3
1Although this court’s review of the denial of an application for supplemental security income

falls under 42 U.S.C. § 1383(c)(3), remand is proper under 42 U.S.C. § 405(g) (which applies to

disability insurance benefits as opposed to supplemental security income) because Section 1383(c)(3)

provides that “[t]he final determination of the Commissioner of Social Security after a hearing under

paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same

extent as the Commissioner’s final determinations under section 405 of this title.”

Plaintiff’s counsel was contacted and does not oppose the motion to remand. 

Upon consideration of the foregoing, and the language of sentence four of 42 U.S.C. § 405(g)

empowering this 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”, the undersigned recommends that judgment be entered reversing and

remanding this cause pursuant to sentence four1 of section 205(g) of the Social Security Act for further

proceedings. 42 U.S.C. § 405(g); see Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157 (1991). 

This remand pursuant to sentence four of section 205(g) of the Social Security Act makes plaintiff a

prevailing party for purposes of the Equal Access to Justice Act. 28 U.S.C. § 2412; see Shalala v.

Schaefer, 509 U.S. 292, 113 S.Ct. 2625 (1993) and terminates this court’s jurisdiction over this matter

except the court may consider issues related to fees and costs due and owing to the plaintiff because

plaintiff is a prevailing party under the EAJA, and in the future such fees and costs which plaintiff’s

counsel may be entitled to recover pursuant to the Social Security Act if plaintiff is awarded benefits. 

The attached sheet contains important information regarding objections to the report and

recommendation of the Magistrate Judge. 

DONE this the 7th day of June, 2005. 

s / Kristi D. Lee

KRISTI D. LEE

UNITED STATES MAGISTRATE JUDGE 

Case 1:04-cv-00775-CG-D Document 13 Filed 06/07/05 Page 2 of 3
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within ten days

of the date of service of this document, file specific written objections with the clerk of court. Failure to

do so will bar a de novo determinationbythe district judge of anything inthe recommendationand willbar

anattack, onappeal, of the factualfindings ofthe magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Lewis

v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997),

which provides, in part, that:

A party may object to a recommendation entered by a magistrate judge in a dispositive

matter, that is, a matter excepted by28 U.S.C. § 636(b)(1)(A), by filing a “Statement of

Objectionto Magistrate Judge’sRecommendation” within tendays afterbeingservedwith

a copy of the recommendation, unless a different time is established by order. The

statement of objection shall specify those portions of the recommendation to which

objection is made and the basis forthe objection. The objecting party shall submit to the

district judge, at the time of filing the objection, a brief setting forth the party’s arguments

that the magistrate judge’s recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a copy of the original brief submitted to

the magistrate judge, although a copyofthe original brief may be submitted or referred to

and incorporated into the brief in support of the objection. Failure to submit a brief in

support of the objection may be deemed an abandonment of the objection.

Amagistrate judge’srecommendation cannot be appealed to aCourt ofAppeals; only the district

judge’s order or judgment can be appealed.

2. Opposing party’s response to the objection. Any opposing party may submit a brief opposing

the objection within ten (10) days of being served witha copyofthe statement ofobjection. Fed. R. Civ.

P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedingstape recorded). Pursuant to 28 U.S.C. § 1915 and

Fed.R.Civ.P. 72(b), the magistrate judge findsthatthe tapes and originalrecordsinthis actionare adequate

for purposes of review. Any party planning to object to this recommendation, but unable to pay the fee

for a transcript, is advised that a judicial determination that transcription is necessaryisrequired before the

United States will pay the cost of the transcript.

S / KRISTI D. LEE 

UNITED STATES MAGISTRATE JUDGE

Case 1:04-cv-00775-CG-D Document 13 Filed 06/07/05 Page 3 of 3