Opinion
CIVIL NO. C-03-01 111 EMC
September 22, 2003
KEVIN V. RYAN, JOANN M. SWANSON, ALEX TSE, San Francisco, California, for Defendant
MATTHEW L. HOWARD, for Plaintiff
STIPULATION AND ORDER 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 March 14, 2003. The summons and complaint were served on defendant on April 22, 2003. Defendant's answer is due on July 21, 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 has certified as lost the cassette tapes of two oral hearings and requests remand for a de novo hearing within 120 days of this order and to issue a new decision. Accordingly we request remand for further administrative action 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 flies 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
Pursuant to stipulation, it is so ORDERED.