United States District Court, E.D. Virginia, Norfolk Division
S.T., by his next friend SHONTE L. TAYLOR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK UNITED STATES MAGISTRATE JUDGE.
L. Taylor ("plaintiff”), proceeding pro
se, brought this action on behalf of her minor son,
S.T., pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3),
seeking judicial review of a decision of the Acting
Commissioner ("Commissioner") of the Social
Security Administration ("SSA") denying her
application for supplemental security income
("SSI") under Title XVI of the Social Security Act.
action was referred to the undersigned United States
Magistrate Judge pursuant to the provisions of 28 U.S.C.
§ 636(b)(1)(B), by order of reference filed December 11,
2018. ECF No. 10. It is hereby recommended that the
plaintiffs motion for summary judgement, ECF No. 13, be
GRANTED in part and DENIED in part, and the
Commissioner's motion to remand to the SSA, ECF No. 14,
plaintiff filed an application for SSI on October 18, 2013,
on behalf of her minor son, S.T., alleging that he became
disabled on June 1, 2012, due to attention deficit
hyperactivity disorder ("ADHD") and oppositional
defiant disorder ("ODD"). R. 11, 72, 134-43.
The plaintiffs claim was denied initially on April 3, 2014,
and upon reconsideration on June 18, 2014. R. 92-96, 102-10.
At the plaintiffs request, an administrative law judge
("ALJ") heard the matter on February 22, 2016, and
at that hearing evidence was received from S.T., the
plaintiff, and Eugene Leftwich, S.T.'s in-home counselor.
R. 29-71. On May 18, 2016, the ALJ denied the plaintiffs
claim, concluding that S.T. was not disabled from October 18,
2013 through the date of the decision. R. 8-24.
September 1, 2016, the Appeals Council denied the plaintiffs
request for review of the ALJ's decision. R. 1-3.
Therefore, the ALJ's decision was the final decision of
the Commissioner for purposes of judicial review.
See 42 U.S.C. §§ 405(g), 1383(c)(3); 20
C.F.R. §416.1481. Having exhausted all administrative
remedies, the plaintiff filed a pro se complaint
with this Court on December 20, 2016, seeking judicial review
of the Commissioner's decision to deny the plaintiffs
application for SSI under Title XVI of the Social Security
Act. R. 464-65; S.T. v. Berryhill, `No. 2:16cv717
(E.D. Va. Dec. 20, 2016).
January 12, 2018, the decision of the Commissioner was
vacated and remanded to the Commissioner for further
proceedings. R. 460-62. Specifically, the Commissioner was
asked to give support for her conclusion that S.T. had a less
than marked limitation in the "attending and completing
tasks" domain by considering: (1) a doctor's report
from 2013 and another from 2014, (2) two teachers'
opinions from 2016, (3) S.T.'s 504 plan, and (4) a
doctor's report from 2016. R. 486-90.
October 5, 2017, the plaintiff filed a subsequent application
for SSI benefits. R. 540. On December 12, 2017, the state
agency issued a favorable determination, granting the
plaintiff disability benefits for S.T. starting on October 5,
2017. R. 528-36. As to the issue of S.T.'s disability
before October 5, 2017, the ALJ conducted another hearing on
May 23, 2018, according to this Court's remand
instructions. R. 425-59, 540. On August 30, 2018, the ALJ
returned a decision partially favorable, finding that S.T.
became disabled on January 1, 2017. R. 537-59.
October 5, 2018, the plaintiff filed a pro se
complaint seeking judicial review of the Commissioner's
August 2018 decision denying S.T. disability benefits prior
to January 1, 2017, and asking this Court to grant damages
for pain and suffering. ECF No. 3 at 3. On December 10, 2018,
the Commissioner filed an answer. ECF No. 8. In response to
this Court's order, the plaintiff filed a motion for
summary judgment on January 11, 2019. ECF No. 13.
February 11, 2019, the Commissioner filed a motion to remand
to the SSA. ECF No. 14. In the supporting memorandum filed on
the same date, the Commissioner asked that the ALJ's most
recent decision be reversed and remanded to an administrative
law judge pursuant to sentence four of Section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g). ECF No. 15 at
are two types of remands under 42 U.S.C. § 405(g):
sentence four and sentence six. Melkonyan v.
Sullivan, 501 U.S. 89, 98 (1991). A sentence four remand
affirms, modifies, or reverses the decision of the
Commissioner, and terminates the action presently before the
court. Sullivan v. Finkelstein, 496 U.S. 617, 625
(1990). A sentence six remand does not affirm, modify, or
reverse the Commissioner's decision, but rather retains
jurisdiction over the action pending completion of the remand
proceedings. Melkonyan, 501 U.S. at 98; see also
Shalala v. Schaefer, 509 U.S. 292, 297 (1993). A court
may remand a case pursuant to sentence six for the
consideration of new evidence that was not available at the
time of the administrative proceeding and may have changed
the outcome of the proceeding. Id. A sentence four
remand is warranted in this case where the Commissioner
believes further administrative action is warranted and has
requested an order "reversing the decision of the
Commissioner," 42 U.S.C. § 405(g), and remanding
the case to the ALJ to "(1) obtain medical expert
evidence to assess the nature and severity of S.T7s
functional limitations prior to the established onset date of
January 1, 2017, and (2) issue a new decision." ECF No.
15 at 1.
foregoing reasons, the undersigned recommends that: (1) the
plaintiffs motion for summary judgment, ECF No. 13, be
GRANTED, to the extent the plaintiff is requesting a remand
of the Commissioner's final decision, and DENIED to the
extent the plaintiff is requesting an award of benefits; (2)
the Commissioner's motion to remand, ECF No. 14, be
GRANTED; and (3) the final decision of the ...