Dieckow v. Commissioner of Social Security

Western District of Texas, txwd-5:2019-cv-00796

ORDER GRANTING [13] Motion to Remand to Social Security Administration Signed by Judge Richard B. Farrer.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JACQUELINE MARY DIECKOW, § § Plaintiff, § 5-19-CV-00796-RBF § vs. § § ANDREW M. SAUL, COMMISSIONER § OF SOCIAL SECURITY; § § Defendant. § § ORDER Before the Court is the Motion to Remand Pursuant to Sentence Four filed by Defendant Andrew Saul, Commissioner of the Social Security Administration. See Dkt. No. 13. This Court has jurisdiction to review a decision of the Social Security Administration, see 42 U.S.C. § 405(g), and the parties in this case have consented for a U.S. Magistrate Judge to conduct all proceedings up to and including entry of judgment, see Dkt. Nos. 5, 7, & 8. Accordingly, authority to enter this Order stems from 28 U.S.C. § 636(c). The Commissioner requests the Court reverse his September 18, 2018 final administrative decision and remand this case pursuant to Sentence four of § 405(g) to permit an Administrative Law Judge to further evaluate the nature and severity of Plaintiff Jacqueline Mary Dieckow's mental impairments; as necessary, reconsider Dieckow's residual functional capacity; and if warranted, obtain vocational expert evidence. Sentence four of § 405(g) grants a court the ability to affirm, modify, or reverse the decision with or without remanding the benefits case for rehearing. Murkeldove v. Astrue, 635 F.3d 784, 786 (5th Cir. 2011). Dieckow doesn't oppose the Commissioner's request but asserts that the case must be remanded for a de novo hearing before a new ALJ because the ALJ that issued the September 18 unfavorable decision 1 was unconstitutionally appointed. See Dkt. No. 14 (citing Lucia v. S.E.C., --U.S.--, 138 S. Ct. 2044, 2051 (2018)). The Commissioner doesn't dispute that the ALJ who issued the September 18 decision was unconstitutionally appointed or that Dieckow timely and properly raised the issue. Nor does the Commissioner oppose Dieckow's request that the case be remanded to a new ALJ. In fact, the Commissioner hasn't even responded to this point. Having considered the motion, the pleadings, and the record in this case, and in light of Plaintiff Dieckow's general non-opposition to the motion, the Court is of the opinion the motion should be granted. IT IS THEREFORE ORDERED THAT the Commissioner's Motion to Remand Pursuant to Sentence Four, Dkt. No. 13, is GRANTED. The Social Security Administration's September 18, 2018, unfavorable decision denying Plaintiff Jacqueline Mary Dieckow's claim for disability insurance benefits is REVERSED, and the matter is REMANDED to the Commissioner under the fourth sentence of 42 U.S.C. § 405(g) for further administrative proceedings. Further, upon remand, this case shall be heard by a new, properly appointed ALJ.1 IT IS SO ORDERED. SIGNED this 6th day of January, 2020. RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE 1 See Lucia, 138 S. Ct. at 2055 (explaining that where an Appointments Clause violation occurs, the remedy is to vacate the prior actions of the invalidly appointed officer and remand the case for a new hearing before a new properly appointed official). 2