Opinion
Civil Action No 00-0416-P-L
March 28, 2001
REPORT and RECOMMENDATION
This cause is before the Court on defendant's motion to remand pursuant to sentence six of § 205(g) and 1631(c)(3) of the Social Security Act, 42 U.S.C. § 405 (g) and 1383(c)(3). (Doc. 13). This motion has been referred to the undersigned for a recommendation pursuant to 28 U.S.C. § 636 (b)(1)(B), and Local Rule 72.2(c)(3). Upon consideration of all matters presented, the undersigned recommends that the cause be remanded to the Commissioner for further proceedings.
The Commissioner alleges an inability to locate the claim file. Therefore, the Commissioner requests a remand to search for the claim file, and if it cannot be located, then to reconstruct the claim file (Doc. 13). Without a claim file, the defendant cannot compile an administrative record to file with the answer. (See Doc. 9 ("The Commissioner of Social Security shall file an answer, together with a transcript of the administrative proceedings, within ninety (90) days after service of the complaint.")) Defendant also stated that good cause for remand exists because a lost file is the type of circumstance anticipated by Congress for a sentence six remand. (H.R. Rep. No. 96-944, 96th Cong., 2d Sess. 59 (1980).)
Defendant also states that plaintiff's counsel has been notified and does not oppose the remand if the process is completed within a reasonable amount of time. Further, plaintiff's counsel requests that a status report be filed within ninety (90) days after the remand.
The first portion of sentence six of 42 U.S.C. § 405 (g) provides that "[t]he 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[.]" The Commissioners's inability to compile a complete administrative record for this Court's review establishes good cause to remand this case to the Commissioner of Social Security so that the Commissioner can find the claim file or reconstruct same and therefore, it is recommended that this case be remanded to the Commissioner pursuant to sentence six of § 405(g).
Sentence-six remand cases may be ordered in only two situations: where, as here, the Commissioner "requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schafer, 509 U.S. 292, 292 n. 2, 113 S.Ct. 2625, 2629 n. 2, 125 L.Ed.2d 239 (1993) (citations omitted).
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 supra 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 post-remand proceedings are completed, the [Commissioner] returns to court, the court enters a final judgment, and the appeal period runs."Melkonyan, supra, 501 U.S. 102, 111 S.Ct. at 2165.
Although this Court retains jurisdiction over this case, the Clerk of Court is directed to statistically close this case at this time. This case is to be statistically reopened when the defendant files an answer along with a transcript of the administrative proceedings.
Wherefore, upon consideration of all matters presented and for good cause shown, it is the recommendation of the undersigned Magistrate Judge that this case be remanded to the Commissioner of Social Security pursuant to sentence six of 42 U.S.C. § 405 (g) for action consistent with the Defendant's motion to remand. It is further recommended that defendant be ordered to file a status report at the expiration of ninety (90) days from the date of remand.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.