Summary
stating that a remand may in this situation be granted "only where the Commissioner's motion for a remand is made before the filing of an answer"
Summary of this case from Acevedo v. BarnhartOpinion
00 CIV. 737 (DLC).
March 22, 2001
MEMORANDUM OPINION AND ORDER
On May 21, 1999, Victor Flores ("Flores") filed this action in the Eastern District of New York pursuant to the Social Security Act seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying Flores' application for Supplemental Security benefits. On November 10, 1999, the case was transferred to the Southern District of New York, and on February 2, 2000, the case was assigned to this Court. The Commissioner has not filed an answer and has moved for an order remanding the case pursuant to the sixth sentence of 42 U.S.C. § 405(g). Flores has not submitted a response to the Commissioner's motion. For the reasons set forth below, the Commissioner's motion is granted.
Flores' application for Social Security benefits was denied initially, and by an Administrative Law Judge ("ALJ") on June 24, 1998, after a hearing. Flores requested Appeals Council review on August 28, 1998. The Council denied his request for review on March 17, 1999, and this action followed.
By letter dated December 1, 2000, the Commissioner advised Flores that the Social Security Administration had been unable to locate the tape of the hearing that was held before the ALJ in this case, and proposed that the parties stipulate to remand this case for further proceedings. As of January 19, 2001, the date of the Commissioner's motion for remand, the Commissioner had not received a response from Flores to the December 1, 2000 letter.
In an action for judicial review of a final decision of the Commissioner, the Commissioner is required to file as part of his answer to the complaint a certified copy of the transcript of the administrative record containing the evidence on which the administrative decision was based. 42 U.S.C. § 405(g). Here, the Commissioner moves to remand the case pursuant to sentence six of 42 U.S.C. § 405(g) because he is unable to prepare a transcript of the record in Flores' case because he has been unable to locate the tape of the hearing held before the ALJ.
In Shalala v. Schaefer, 509 U.S. 292, 296 (1993), the Supreme Court explained that the "exclusive methods" by which district courts may remand a case to the Commissioner are set forth in sentences four and six of 42 U.S.C. § 405(g). See also Raitport v. Callahan, 183 F.3d 101, 103-04 (2d Cir. 1999) Sentence four of Section 405(g) provides:
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.42 U.S.C. § 405(g).
Sentence six provides, in relevant part:
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. . . .42 U.S.C. § 405(g). This Court may remand a case pursuant to sentence six only where the Commissioner's motion for a remand is made before the filing of an answer or where there is material evidence that, for good cause, was not presented to the agency. Raitport, 183 F.3d at 104.
There is also jurisdictional significance to whether a remand is entered pursuant to sentence four or six. Sentence four remands are appealable as a final judgment disposing of the action whereas sentence six remand orders are considered interlocutory and non-appealable, because the district court retains jurisdiction over the action pending further development and consideration by the ALJ. See Raitport, 183 F.3d at 104.
In this case, the Commissioner did not file an answer before making the motion to remand. Moreover, the Commissioner's inability to comply with the statutory requirement of filing the administrative record constitutes good cause. See H.R. Rep. No. 944, 96th Cong., 2d Sess. 59 (1980),reprinted in 1980 U.S.C.C.A.N. 1392, 1407 ("Where, for example, the tape recording of the claimant's oral hearing is lost or inaudible or cannot otherwise be transcribed, or where the claimant's files cannot be located or are incomplete, good cause would exist to remand the claim to the [Commissioner] for appropriate action to produce a record which the courts may review under 205(g) of the act."). Thus, remand for further proceedings pursuant to sentence six of Section 405(g) is the appropriate disposition of this action.
On remand, the Commissioner shall continue to search for the hearing tape. If the tape is located by June 1, 2001, the tape shall be transcribed, a transcript of the record shall be prepared, and this case shall be returned to this Court for litigation. If the tape is not located by June 1, 2001, Flores will be given a new hearing after which the Commissioner shall issue a new decision on the merits of Flores' claim.
CONCLUSION
For the reasons explained above, the Commissioner's motion for an order remanding the case is granted. The case is remanded to the Commissioner pursuant to sentence six of Section 405(g) for further administrative proceedings consistent with this Opinion.
SO ORDERED: