LEGAL GUIDE
Written by attorney Clifford Michael Farrell | Dec 9, 2011

Federal Court Sentence Four Remands and Objections to Magistrate's Reports.

The Social Security Act, 42 U.S.C. Section 405(g), authorizes a claimant to appeal to the Federal Courts from an adverse determination by the Social Security Commissioner. Ordinarily, when a Federal Court remands a Social Security claim to the Commissioner, the remand order is made pursuant to either Sentence 4 of Section 405(g) or Sentence 6 of Section 405(g). Sentence 4 authorizes the Court to enter "a judgment affirming, modifying, or reversing, with or without remanding the cause for a rehearing". Under a Sentence 6 remand, the Court remands the case to the Commissioner for further proceedings to consider new evidence, and retains jurisdiction over the cause to enter a post remand judgment after Administrative proceedings have been concluded. A "Sentence 4" remand is in fact a final decision of the District Court from which either side may appeal. Forney v. Apfel, 524 U.S. 266 (1998). Sullivan v. Finkelstein, 496 U.S. 617 (1990); see also Melkonyan v. Sullivan, 501 U.S. 89 (1991), Shalala v. Schaefer, 509 U.S. 292 (1993).

In some cases a Magistrate will find a particular issue persuasive enough to warrant remand for further proceedings. Unfortunately, sometimes issues are left unresolved, or the specific purpose of the remand is not clear. In the case of a Magistrate's Report and Recommendation, either party may serve and file specific, written objections to the proposed findings and recommendations within ten days pursuant to Fed.R.Civ.P. 72(b). And, as in any type of case, if an appeal is not timely pursued, then the appeal is waived. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See, United Statesv. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474U.S. 140 (1985).

The Report and Recommendation for a remand must be carefully reviewed to make sure no issue needs to be raised or objection filed, so as to preserve all issues necessary to win the case on remand.

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