Opinion
No. CV-09-5097-JPH.
January 25, 2010
ORDER GRANTING DEFENDANT'S MOTION FOR SENTENCE SIX REMAND (Ct. Rec. 9)
On January 22, 2010, defendant filed a motion for remand of this case pursuant to sentence six of 42 U.S.C. § 405(g) ( Ct. Rec. 9). Plaintiff does not oppose the motion (Ct. Recs. 9, 11). The parties have filed a consent to proceed before a magistrate judge (Ct. Rec. 7).
Defendant is correct that the cited provision allows the court, on motion of the Commissioner for good cause shown and before filing an answer, to remand the case to the Commissioner for further action by the Commissioner. In sentence six remands, the court retains jurisdiction over the action pending further administrative development of the record. The Commissioner asserts the claim file of the ALJ's July 10, 2008, decision cannot be located (Ct. Rec. 19 at 2). As noted by the defendant, if the file cannot be located within 90 days, the Appeals Council will remand the case to the administrative law judge for a de novo hearing (Ct. Rec. 19 at 2-3).
After considering the motion,
IT IS ORDERED that the defendant's motion for a sentence-six remand ( Ct. Rec. 9) is GRANTED. In the above-captioned case, defendant will continue attempting to locate the ALJ's claim file for the July 10, 2008, hearing.
IT IS FURTHER ORDERED that if the record cannot be located by April 26, 2010, the Appeals Council remand the case to an Administrative Law Judge to conduct a de novo hearing. The Court will retain jurisdiction over the case.
IT IS FURTHER ORDERED that in the event the de novo hearing is unfavorable to plaintiff, she may seek judicial review by reinstating this case rather than by filing a new complaint.
This remand is pursuant to sentence six of 42 U.S.C. § 405(g), prior to defendant filing his answer and for good cause shown.
IT IS SO ORDERED.