United States District Court, S.D. Alabama, Northern Division
PAUL M. THOMAS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
Security Claimant/Plaintiff Paul M. Thomas
("Madison") has brought this action under 42 U.S.C.
§§ 405(g) and 1383(c)(3) seeking judicial review of
a final decision of the Defendant Commissioner of Social
Security ("the Commissioner"), dated September 22,
2016, denying his applications for disability insurance
benefits ("DIB") under Title II of the Social
Security Act, 42 U.S.C. §§ 401-433, and
supplemental security income ("SSI") under Title
XVI of the Social Security Act, 42 U.S.C. §§
1381-1383C. (Doc. 1). By the consent of the parties
(see Doc. 19), the Court has designated the
undersigned United States Magistrate Judge to conduct all
proceedings and order the entry of judgment in this civil
action under 28 U.S.C. § 636(c) and Federal Rule of
Civil Procedure 73. (See Doc. 20).
Thomas filed and served his Brief (Doc. 15) and Fact Sheet
(Doc. 14) listing the specific errors upon which he sought
reversal of the Commissioner's decision, the Commissioner
filed a motion to remand Thomas' case under sentence four
of § 405(g) ("The [district ]court shall have power
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."),  representing that
Thomas does not oppose the motion. (Doc. 18).
consideration, it is ORDERED that the Commissioner's
unopposed motion to remand (Doc. 18) is GRANTED. The
Commissioner's September 26, 2016 final decision denying
Thomas DIB and SSI benefits is REVERSED, and this cause is
REMANDED for a rehearing. Securing remand pursuant to
sentence four of § 405(g) makes Madison 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 (1993), and terminates this Court's jurisdiction
over this cause. Final judgment in accordance with this Order
and Federal Rule of Civil Procedure 58 shall issue by
to Federal Rule of Civil Procedure 54(d)(2)(B), the Court
grants Thomas' attorney an extension of time in which to
file a petition for authorization of attorney's fees
under 42 U.S.C. § 406(b) until thirty days after receipt
of a notice of award of benefits from the Social Security
Administration. See Bergen v. Comm 'r of Soc.
Sec, 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam)
("Fed. R. Civ. P. 54(d)(2) applies to a § 406(b)
attorney's fee claim."); Blitch v. Astrue,
261 F.App'x 241, 242 n.l (11th Cir. 2008) (per curiam)
(unpublished) ("In Bergen v. Comm'r of Soc.
Sec, 454 F.3d 1273 (11th Cir. 2006), we suggested the
best practice for avoiding confusion about the integration of
Fed.R.Civ.P. 54(d)(2)(B) into the procedural framework of a
fee award under 42 U.S.C. § 406 is for a plaintiff to
request and the district court to include in the remand
judgment a statement that attorneys fees may be applied for
within a specified time after the determination of the
plaintiffs past due benefits by the Commission. 454 F.3d at
 The record reflects that Thomas
resides in this judicial district. Thus, venue is proper in
this Court. See 42 U.S.C. §§ 1383(c)(3)
("The final determination of the Commissioner of Social
Security after a hearing [on a claim for supplemental
security income] 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.") and 405(g) ("Such action shall
be brought in the district court of the United States for the
judicial district in which the plaintiff resides, or has his
principal place of business...").
 See also 42 U.S.C.
§ 1383(c)(3) ("The final
determination of the Commissioner of Social Security after a
hearing [for SSI benefits] 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.").
 Sentence six of § 405(g) provides
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 Security..."
However, the Commissioner filed her answer (Doc. 12) prior to
requesting remand, and her motion does not ...