Opinion
Civil Action 00-0646-RV-S
November 21, 2000
RECOMMENDATION OF MAGISTRATE JUDGE
This cause is before the Court on the Commissioner's Motion to Remand (Doc.11). In the Commissioner's Motion to Remand, the Commissioner is requesting that this action be remanded to the Social Security Administration for further administrative action pursuant to sentence six of 42 U.S.C. § 405 (g) and 1383(c)(3), which provides:
The court may, on motion of the [Commissioner] made for good cause shown before he files his answer, remand the case to the [Commissioner] for further action by the [Commissioner]42 U.S.C. § 405 (g). In the Commissioner's present motion, the Commissioner states that the Social Security Administration is unable to locate the claim file; therefore, a remand is requested so that the Administration can locate or reconstruct the claim file.
That portion of sentence six of 42 U.S.C. § 405 (g) which is pertinent to this matter has three components which must be satisfied before this Court can consider a remand; there must be (1) a motion of the Commissioner (2) made for good cause shown (3) before the filing of an answer. In this case, the Commissioner's motion was filed before answer by the Commissioner; therefore, the only issue before the Court is whether the Commissioner has demonstrated good cause. The resolution of this issue is assisted by reference to the legislative history of the Joint Conference Committee of Congress in reporting upon the Social Security Disability Amendments of 1980. In the Joint Conference Committee's report, the Committee discussed situations which may constitute "good cause" for remand.
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 . . . .
H.R. Rep. No. 96-944, 96th Cong., 2d Sess. 59 (1980).
Upon consideration of all matters presented, it is the opinion of the undersigned that the Commissioner has demonstrated good cause for this Court to exercise its discretion in remanding this action to the Commissioner for further administrative action pursuant to sentence six of 42 U.S.C. § 405 (g).
Conclusion
It is the recommendation of the undersigned Magistrate Judge that Defendant's motion to remand be GRANTED, and that this action be REMANDED to the Commissioner so that the claim file can be found or reconstructed.
With entry of this sentence six remand, the Court "does not rule in any way as to the correctness of the administrative determination." Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991). Accordingly, the Plaintiff is not a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412. See Schaefer, 509 U.S. at 297-298 300-302, 113 S.Ct. at 2629 2631-2632. "In sentence six cases, the [EAJA] filing period does not begin until after the postremand proceedings are completed, the [Commissioner] returns to court, the court enters a final judgment, and the appeal period runs." Melkonyan, 501 U.S. at 102, 111 S.Ct. at 2165.
After completing and recording the administrative hearing, the Commissioner is directed to file a motion to reinstate this appeal on the Court's docket for further action consistent with the procedures of this Court.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.