Hawthorne v. Kijakazi

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ERIK HAWTHORNE,

Plaintiff, Case No. 22-cv-00752-RMM v.

KILOLO KIJAKAZI, Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION

Erik Hawthorne brought this case seeking judicial review of a decision of the

Commissioner to deny his Supplemental Security Income benefits. See Compl., ECF No. 1. He

moved for entry of a judgment vacating the Commissioner’s decision and remanding the matter

for further administrative proceedings, on the theory that the Commissioner’s decision lacks a

substantial evidentiary basis and is erroneous as a matter of law. See Mot. for J. of Reversal,

ECF No. 16. Rather than respond to Mr. Hawthorne’s motion, the Commissioner filed a Motion

for Entry of Judgment with Remand, requesting that the Court remand Mr. Hawthorne’s claim

“so that the Commissioner may remand the claim to an administrative law judge to offer Plaintiff

the opportunity for a new hearing and issue a new decision.” Def.’s Mot. for Remand, ECF No.

17 at 1. Mr. Hawthorne does not oppose the Commissioner’s motion. See id.

This Court has the “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” pursuant to the fourth sentence of

42 U.S.C. § 405(g). A sentence-four remand is appropriate only in conjunction with a final

judgment on the Commissioner’s decision to deny benefits. Melkonyan v. Sullivan, 501 U.S. 89, 99–100 (1991). For that reason, a “substantive ruling on the correctness of [the Commissioner’s]

decision” is a “necessary prerequisite to a sentence-four remand.” Krishnan v. Barnhart, 328

F.3d 685, 692 (D.C. Cir. 2003) (citing Melkonyan, 501 U.S. at 98–101).

The Commissioner has conceded that her decision was incorrect in this matter. Under

this Court’s local rules, when an argument is advanced in support of a motion and the opposing

party fails to counter the argument in a timely opposition brief, the court may treat the argument

as conceded, even if the result is dismissal of the entire case. See Local Rule 7(b); Stephenson v.

Cox, 223 F. Supp. 2d 119, 121 (D.D.C. 2002) (collecting cases); Bancoult v. McNamara, 227 F.

Supp. 2d 144, 149 (D.D.C. 2002) (same). The Commissioner’s response to Mr. Hawthorne’s

Motion for Judgment of Reversal was due on October 31, 2022. See July 7, 2022 Min. Order.

The Commissioner did not file an opposition or seek an extension of time to do so. She has thus

conceded the arguments in Mr. Hawthorne’s motion and brief in support, and the Court

accordingly GRANTS Mr. Hawthorne’s Motion for Judgment of Reversal. Consistent with

sentence four of Section 405(g) and the Commissioner’s unopposed motion for remand, the

Court also GRANTS the Commissioner’s Motion for Remand and REMANDS this matter for

further administrative proceedings.

SO ORDERED this February 17, 2023.

ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE