Brennan v. Barnhart

Full title: MARK BRENNAN, Plaintiff, v. JO ANNE B. BARNHART, Commissioner of Social…

Court: United States District Court, N.D. California, San Francisco Division

Date published: Mar 5, 2003

Civil No. C-02-03353 JSW (N.D. Cal. Mar. 5, 2003)

Opinion

Civil No. C-02-03353 JSW

March 5, 2003

KEVIN V. RYAN, United States Attorney, JOCELYN BURTON, Chief, Civil Division, ALEX TSE, Assistant United States Attorney, San Francisco, California, Attorneys for Defendant.

DEFENDANT'S REQUEST FOR REMAND OF ACTION TO THE COMMOSSIONER OF THE SOCIAL SECURITY ADMINISTRATION UNDER SENTENCE SIX OF 42 U.S.C. § 405(g) AND ORDER

JEFFREY S. WHITE, District Judge

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 July 12, 2002. The summons and complaint were served on defendant on December 3, 2002. Defendant's answer is due on March 3, 2003. We have been informed by the Office of Hearings and Appeals that the Commissioner requests voluntary remand of this claim for further administrative proceedings. The Commissioner is unable to locate the claim file and requests remand to search for it. If the Commissioner cannot locate the claim file in a reasonable amount of time, it will be reconstructed if necessary. We therefore request a remand 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 Melkonyan v. Sullivan, 501 U.S. 89, 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 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 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.

ORDER

For good cause shown, it is so ORDERED.