IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE LEE MOORE, *

 *

Plaintiff, *

 *

vs. * Civil Action No.05-00204-BH-B

 *

JO ANNE B. BARNHART, *

Commissioner of * 

Social Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

This matter is before the Court on Defendant’s Motion To

Remand pursuant to sentence six of 42 U.S.C.S. § 405(g) and §

1383(c)(3). (Doc. 12). This motion has been referred to the

undersigned for a recommendation pursuant to 28 U.S.C. §

636(b)(1)(B) and Local Rule 72.2(c)(3). Upon consideration of

all matters presented, the undersigned recommends that

Defendant’s motion be GRANTED, and that this action be remanded

to the Commissioner of Social Security for further administrative

action. 

42 U.S.C.S. § 405(g) provides, in pertinent part, that

“[t]he court may, on motion of the Commissioner of Social

Security made for good cause shown before the Commissioner files

the Commissioner’s answer, remand the case to the Commissioner of

Social Security for further action by the Commissioner of Social

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Security[.]” 42 U.S.C.S. § 405(g). In her Motion, the

Commissioner states that a remand is requested so that the

Administrative Law Judge (“ALJ”) can further develop the record

with regard to Plaintiff’s mental impairment and obtain updated

evidence concerning his mental status. The Commissioner further

asserts that Plaintiff’s counsel has been contacted and does not

oppose the Motion to Remand. (Doc. 12 at 2).

That portion of 42 U.S.C. § 405(g) which is pertinent to

this matter has three components which must be satisfied before

this Court can consider a remand: there must be 1) a motion by

the Commissioner; 2) made for good cause shown, and 3) before the

filing of an answer. In this case, the Commissioner’s motion was

filed before answer by the Commissioner; thus, the only issue

before the Court is whether the Commissioner has demonstrated

good cause. The Commissioner’s pre-answer concession that this

case needs to be remanded for further consideration of

Plaintiff’s mental impairment establishes, in the undersigned’s

opinion, good cause to remand this case to the Commissioner for

further proceedings. Patt v. Apel, 1999 U.S. Dist. LEXIS 14102,

*2-3 (S.D. Ala. Jun. 22, 1999). In entering sentence six

remands, the courts “[do] not rule in any way as to the

correctness of the administrative determination.” Melkonyan v.

Sullivan, 501 U.S. 89, 98 (1991). Accordingly, Plaintiff is not

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a prevailing party for purposes of the Equal Access to Justice

Act (“EAJA”). 28 U.S.C. § 2412. See Shalala v. Schafer, 509

U.S. 292, 297-298 and 300-302 (1993); Melkonyan, 501 U.S. at 102

(holding that “[i]n sentence six cases, the [EAJA] filing period

does not begin until after the postremand proceedings are

completed, the [Commissioner] returns to court, the court enters

a final judgment, and the appeal period runs[]”). 

Wherefore, upon consideration of all matters presented, and

for good cause shown, the undersigned Magistrate Judge recommends

that Defendant’s Motion to Remand be GRANTED and this cause

remanded to the Commissioner pursuant to sentence six of 42

U.S.C. § 405(g) for action consistent with Defendant’s Motion to

Remand. 

The attached sheet contains important information regarding

objections to the report and recommendation of the Magistrate

Judge.

 DONE this 15th day of August 2005.

 

 /s/ SONJA F. BIVINS 

UNITED STATES MAGISTRATE JUDGE

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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 determination by the

district judge of anything in the recommendation and will bar an

attack, on appeal, of the factual findings of the magistrate

judge. See 28 U.S.C. § 636(b)(1); 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 by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s

Recommendation” within ten days after being served

with 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 for the 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 copy of the 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.

A magistrate judge’s recommendation cannot be appealed to

a Court of Appeals; 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 with a copy of the statement of objection.

FED. R. CIV. P. 72; SD ALA LR 72.4(b). 

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3. Transcript (applicable where proceedings tape recorded).

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are 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 necessary is required before the United

States will pay the cost of the transcript.

 /s / SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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