Opinion
No. C01-2004
July 9, 2001
ORDER
This matter comes before the court pursuant to Defendant Commissioner of Social Security's June 5, 2001 motion to remand (docket number 11). The parties consented to the exercise of jurisdiction by a United States Magistrate Judge. For the reasons set forth below, the motion is denied.
After plaintiff Robert Caples filed his brief, the Commissioner moved to remand this action for further proceedings before an administrative law judge (ALJ) pursuant to sentence four of 42 U.S.C. § 405(g). Sentence four of § 405(g) states: "The 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." The Commissioner requests a remand under sentence four to allow the ALJ to consider the opinion of Ralph Scott, Ph.D.
A remand for further proceedings is improper at this time. Sentence six of § 405(g) allows for a remand for the purpose of taking additional evidence and states:
The 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, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . . Id. § 405(g). In Buckner v. Apfel, 213 F.3d 1006 (8th Cir. 2000), the Eighth Circuit explained the difference between a sentence four remand and a sentence six remand: "A sentence four remand is . . . proper whenever the district court makes a substantive ruling regarding the correctness of a decision of the Commissioner and remands the case in accordance with such ruling." Id. at 1010. In contrast, a sentence six remand is proper in two situations: "(1) where the Commissioner requests a remand before answering the complaint of a claimant seeking reversal of an administrative ruling, or (2) where new and material evidence is adduced that was for good cause not presented during the administrative proceedings." Id. A remand pursuant to sentence six "concerns only new and material evidence and `does not rule in any way as to the correctness of the administrative proceeding,' as does a sentence four remand." Id. (quoting Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991)).
The Commissioner filed its answer and the plaintiff has filed his brief. The Commissioner now seeks to remand for the purpose of considering the opinion of Ralph Scott, Ph.D. Dr. Scott's opinion was part of the record before the ALJ when the case was initially considered. A remand pursuant to sentence four is improper because this court has not yet made a substantive ruling on the merits. A remand pursuant to sentence six is improper because (1) the Commissioner has filed its answer and (2) the Commissioner has not shown good cause for considering the evidence which was part of record before the ALJ at the initial hearing.
IT IS ORDERED
The defendant's June 5, 2001, motion to remand (docket number 11) is denied.