Opinion
CIVIL NO. C-00-02457 CRB
November 5, 2001
DAVID W. SHAPIRO, 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 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 July 10, 2000. The summons and complaint were served on defendant on June 28, 2001. Defendant's answer after two extensions is due on November 23, 2001.
We have been informed by the Office of Hearings and Appeals that the Commissioner requests a voluntary remand of this case for further administrative proceedings. The Commissioner is unable to locate the claim file or the cassette tape from the December 19, 1997, oral hearing and requests remand to search for them. If the Commissioner cannot obtain these materials within a reasonable amount of time, reconstruction will occur. Accordingly, we 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.