Opinion
CIVIL NO. C-02-05382
April 17, 2003
KEVIN V. RYAN, CSBN 118321, United States Attorney, JOCELYN BURTON, CSBN 135879, Chief, Civil Division ALEX TSE, CSBN 152348 Assistant United States Attorney, San Francisco, California, Attorneys for Defendant.
STIPULATION AND ORDER FOR REMAND OF ACTION TO THE COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION UNDER SENTENCE SIX OF 42 U.S.C. § 405(g)
The above-captioned Social Security action is filed according to Civil L.R. 16-5, and as such, is submitted on the papers without oral argument.
Plaintiff filed his complaint in the above action on November 13, 2002. The summons and complaint were served on defendant on January 28, 2003. Defendant's answer is due on April 28, 2003.
We have been informed by the Office of Hearings and Appeals that the Commissioner requests voluntary remand of this claim because the tape of the administrative hearing held on January 10, 2002 is blank. Upon receipt of the remand order, the Appeals Council will remand the case for a de novo hearing and a new decision. Accordingly we request remand for further administrative action pursuant to sentence 6 of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) which provides that:
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.See Melkonvan v. Sullivan, 501 U.S. 59, 101 n. 2 (1991); Shalala v. Schaefer, 509 U.S. 292 (1993).
The joint conference committee of Congress in reporting upon the Social Security Disability Amendments of 1980 (to the Social Security Act) stated that in some cases procedural difficulties, such as an inaudible hearing tape or a lost file, necessitate a request for remand by the Secretary. The intent of the committee was that such procedural defects be considered "good cause" for remand. The committee states:
Such a situation is an example of what could be considered "good cause' for remand. . . . Where, for example, the tape recording of the claimant's oral heating 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 (a the Secretary for appropriate action to produce a record . . . (H.R. Rep. No. 96-944, 96th Cong., 2d Sess. 59 (1980)).
Therefore, good cause exists to support this request for remand.