Opinion
CASE NO. 13-cv05489 BHS
11-18-2013
GREGORY S. FOOTE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
ON UNOPPOSED MOTION FOR
REMAND PURSUANT TO
SENTENCE SIX OF 42 U.S.C. § 405(g)
This matter has been referred to Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Magistrates Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261 (1976). This matter is before the Court on Defendant's Unopposed Motion to Remand Pursuant to Sentence Six, 42 U.S.C. § 405(g). (ECF No. 11)
After reviewing defendant's motion and the relevant record, the undersigned recommends that the Court grant defendant's motion, and remand this matter to the Commissioner, pursuant to sentence six of 42 U.S.C. § 405(g), because the recording of the hearing held on 7/26/2011 is incomplete and thus good cause exists to support the request for remand. This Court retains jurisdiction of this action pending further administrative development of the record. See 42 U.S.C. § 405(g); see also Shalala v. Schaefer, 509 U.S. 292, 297-300 (1993).
On remand, the Appeals Council should remand the matter to an administrative law judge who shall afford the plaintiff a de novo hearing. After remand, the Commissioner of Social Security shall modify or affirm the Commissioner's findings of fact or the Commissioner's decision, or both, and shall file with the Court any such additional or modified findings of fact and decision. 42 U.S.C. § 405(g). If the outcome of the de novo hearing is not fully favorable to plaintiff, the Commissioner shall file with the Court a transcript of the additional record and testimony on which the Commissioner's action in modifying or affirming is based. Id. In addition, plaintiff may seek judicial review by reinstating this case rather than by filing a new complaint. If the outcome is favorable to plaintiff, the parties shall move this Court for entry of Judgment.
Given the facts and the unopposed nature of the motion, the Court recommends that the District Judge immediately approve this Report and Recommendation and order that the case be REMANDED pursuant to sentence six of 42 U.S.C. § 405(g).
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J. Richard Creatura
United States Magistrate Judge