Cross v. Commissioner of Social Security

Full title: LINDA M. CROSS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant

Court: United States District Court, M.D. Florida, Ocala Division

Date published: Sep 6, 2011

Case No. 5:11-cv-109-Oc-TBS (M.D. Fla. Sep. 6, 2011)

Opinion

Case No. 5:11-cv-109-Oc-TBS.

September 6, 2011

ORDER

THOMAS SMITH, Magistrate Judge

Pending before the Court is Defendant's Motion To Withdraw Answer (Doc. 16) and Unopposed Motion For Sentence Six Remand (Doc. 17). The Defendant, Michael J. Astrue, Commissioner of Social Security (the "Commissioner"), advises that the record is incomplete because key portions of the transcript from the previous hearing are inaudible. Pursuant to 42 U.S.C. § 405(g) of the Social Security Act, this Court may remand a case to the Commissioner on motion of the Commissioner made for "good cause shown" before he files his answer. Accordingly, the Commissioner seeks leave to withdraw his previously filed Answer and then requests a remand, pursuant to sentence six of 42 U.S.C. § 405(g) in order to take further administrative action, including a de novo hearing. Plaintiff has no objection.

Under these circumstances, there is good cause to support a remand under sentence six. Congress has clearly stated that good cause for remand may be found "where the claimant's files cannot be located or are incomplete." H.R. Rep. No. 96-944, 96^th Cong., 2d Sess. 59 (1980). Furthermore, Plaintiff has no objection to the Commissioner's request for remand.

Accordingly, it is:

ORDERED AND ADJUDGED that:

(1) Defendant's Motion To Withdraw Answer (Doc. 16) is GRANTED and Defendant's Answer (Doc. 8) is WITHDRAWN.

(2) Defendant's Unopposed Motion For Sentence Six Remand (Doc. 17) is GRANTED.

(3) This action is hereby REMANDED to the Commissioner, pursuant to sentence six of 42 U.S.C. § 405(g), for the Commissioner to conduct a de novo hearing before an ALJ and have the hearing transcribed, subject to the requirement that the Commissioner provide the Court with status reports every three months regarding the progress of the remand process.

(4) Because this cause is remanded pursuant to sentence six of 42 U.S.C. § 405(g), the Court shall retain jurisdiction in this matter. Accordingly, the Clerk shall withhold the entry of a final judgment in this case.

IT IS SO ORDERED.

DONE AND ORDERED in Ocala, Florida.