United States District Court, Northern District of California, San Jose Division
STEVEN M. GOLDSTEIN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S MOTIONS FOR REVERSAL ORDER AND JUDGMENT [RE: DKT.NOS. 23, 25, 31]
HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE
Defendant moves for remand pursuant to 42 U.S.C. § 405(g) sentence six, citing the agency's inability to locate the record of the administrative proceedings re plaintiffs claim for benefits. Defendant requests an opportunity to reconstruct the record; or, if the record cannot be reconstructed, then defendant says she will remand the matter to an administrative law judge to reconstruct the record, hold a new hearing, and issue a decision. Plaintiff opposes the motion and separately moves for judgment on the merits, arguing that defendant did not answer his complaint. Upon consideration of the moving and responding papers,  the court grants defendant's motion and denies plaintiffs motions.
Given the pendency of defendant's request for remand, it would have made no sense for defendant to proceed to join the issue and file an answer. Plaintiffs motions for a reversal order and judgment are denied.
Plaintiff contends that remand is not warranted because defendant has cited no new evidence. He is, however, conflating the requirements for the two different types of remand authorized by § 405(g) sentence six. Sentence six remands may be ordered in two situations: "where the Secretary requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n.2, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); see also Melkonyan v. Sullivan, 501 U.S. 89, 100 & n.2, 111 S.Ct. 2157, 115 L.Ed.2d 78 (1991) (same); Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (same). Only the first type of sentence six remand is at issue here.
Moreover, this court finds good cause for defendant's request. Congress clearly has stated that good cause for remand may be found where difficulties, such as an inaudible hearing tape or lost files, arise. SeeH.RRep. No. 96-944, 96th Cong., 2d Sess. 59 (1980). Plaintiffs arguments about defendant's duty to compile an administrative record do not persuade this court otherwise and do not subvert or invalidate Congress' clearly stated intent. While plaintiff argues that defendant provided meaningful review of his claims at the administrative level, meaningful review by this court is not possible without a proper record.
Defendant's motion for remand therefore is granted. This matter is remanded pursuant to 42 U.S.C. ...