1 

 IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

KENNY SAM PIERCE, : 

 Plaintiff, : 

vs. : 

 CIVIL ACTION 11-0214-CG-M 

MICHAEL J. ASTRUE, : 

Acting Commissioner of 

Social Security, : 

 Defendant. : 

 

 REPORT AND RECOMMENDATION

 In this action under 42 U.S.C. § 405(g), Plaintiff seeks 

judicial review of an adverse social security ruling which 

denied claims for disability insurance benefits and Supplemental 

Security Income (Doc. 1). Defendant has filed a Motion for 

Entry of Judgment Under Sentence Four of 42 U.S.C. § 405(g) with 

Remand of the Cause to the Defendant (Doc. 16). Defendant has 

stated that Plaintiff’s attorney has no objection to the motion 

(Doc. 16, p. 2). 

 Defendant states that if “the Court grants this motion, the 

Appeals Council will direct the [Administrative Law Judge] to 

further evaluate Plaintiff’s residual functional capacity, 

obtain vocational testimony, and give further consideration to 

step five of the sequential evaluation process, i.e., further 

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consider whether Plaintiff can perform other work in the 

national economy” (Doc. 16, pp. 1-2). This is a tacit admission 

that Plaintiff’s application was not appropriate considered and 

that this action should be reversed. Without reviewing the 

substantive evidence of record, this Court accepts Defendant’s 

acknowledgment of error. 

 It appears to the Court that the decision of the Secretary 

should be reversed and remanded. Such remand comes under 

sentence four of 42 U.S.C. § 405(g). See Melkonyan v. Sullivan, 

501 U.S. 89 (1991). For further procedures not inconsistent 

with this report, see Shalala v. Schaefer, 509 U.S. 292 (1993). 

 Therefore, it is recommended, without objection from 

Plaintiff, that Defendant’s motion to remand under sentence four 

be granted, that the Court enter a judgment reversing the 

decision of the Commissioner, and that this action be reversed 

and remanded to the Social Security Administration for further 

administrative proceedings not inconsistent with the orders of 

this Court. 

 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 

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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); Nettles v. Wainwright, 677 

F.2d 404 (5th Cir. Unit B, 1982)(en banc). 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 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. 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 

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that transcription is necessary is required before the United 

States will pay the cost of the transcript. 

 DONE this 8th day of November, 2011. 

 s/BERT W. MILLING, JR. 

 UNITED STATES MAGISTRATE JUDGE

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