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Ash v. Colvin

United States District Court, S.D. Alabama, Northern Division

January 21, 2015

DAVID ASH, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

BERT W. MILLING, Jr., Magistrate Judge.

In this action under 42 U.S.C. § 1383(c)(3), Plaintiff seeks judicial review of an adverse social security ruling which denied a claim for Supplemental Security Income (Doc. 1). The parties filed written consent and this action has been referred to the undersigned Magistrate Judge to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 ( see Doc. 17).

Defendant has filed a Motion to Reverse and Remand, seeking entry of judgment under sentence four of 42 U.S.C. § 405(g) with remand of the cause to the Defendant (Doc. 15). Defendant has stated that Plaintiff's attorney has no objection to the motion (Doc. 15). Defendant makes no statement as to why this action should be remanded other than to say that it is proper under sentence four of 42 U.S.C. § 405(g) (Doc. 15). The Court finds that Defendant's non-statement is a tacit admission that Plaintiff's application was not appropriately 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 ORDERED, without objection from Plaintiff, that Defendant's Motion to Remand under sentence four be GRANTED (Doc. 15) 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. Judgment will be entered by separate order.


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