Biehl v. Astrue

Filing 12

MEMORANDUM OPINION AND ORDER that: (A) 11 Motion to Remand is GRANTED; and (B) This case is REMANDED for further proceedings pursuant to sentence six of 42 U.S.C. § 405(g), and for the reasons set forth in Defendant's Motion for Remand. Signed by Honorable Wallace Capel, Jr on 12/7/2009. (Attachments: # 1 Civil Appeals Checklist)(cb, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION B R Y A N N E BIEHL, P l a in tif f , v. M IC H A E L J. ASTRUE, Commissioner of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:09cv837-WC

M E M O R A N D U M OPINION AND ORDER
O n December 7, 2009, Defendant filed an Unopposed Motion to Remand pursuant to sen tenc e six of 42 U.S.C. § 405(g) (2000) (Doc. #11). Defendant's motion asks the Court to remand this case for further proceedings "because the recording of the December 4, 2007 a d m in is tra tiv e hearing is partially or totally blank." Def.'s Mot. to Remand (Doc. #11) at 2. T h e Commissioner states that the Appeals Council will remand the case to an administrative la w judge for a de novo hearing. Id. Sentence six of 42 U.S.C. § 405(g) authorizes the Court to remand a case to the Commissioner for further action if the Commissioner files a motion to remand for good cause before filing an answer. 42 U.S.C. § 405(g). Here, the

C o m m is s io n e r filed a Motion for Remand prior to filing his answer. Thus, the Court must d e te rm in e whether the Commissioner has demonstrated good cause. T h e Joint Conference Committee of Congress, in reporting upon the Social Security D is a b ility Amendments of 1980, set forth examples of what may constitute "good cause" for

re m a n d : Where, for example, the tape recording of the claimant's oral hearing is lost o r inaudible, or cannot otherwise be transcribed, or where the claimant's files c a n n o t be located or are incomplete, good cause would exist to remand the c la im to the Secretary for appropriate action to produce a record. . . . H .R . Rep. No. 96-944, 96th Cong., 2d Sess. 59 (1980); see also Gamble v. Apfel, 2001 WL 1 0 2 3 4 4 at *1 (S. D. Ala. Jan. 5, 2001). The Commissioner concedes the tape recording of Biehl's oral hearing is partially or to ta lly blank. Accordingly, the Court finds Defendant has shown good cause for this matter to be remanded to the Commissioner for further proceedings pursuant to sentence six of 42 U .S .C . § 405(g). It is therefore ORDERED that: A. B. D e f e n d a n t's Motion to Remand (Doc. #11) is GRANTED. T h is case is REMANDED for further proceedings pursuant to sentence six of 4 2 U.S.C. § 405(g), and for the reasons set forth in Defendant's Motion for R e m a n d .1

The Court observes that with entry of this sentence six remand, it "does not rule in a n y way as to the correctness of the administrative determination." Melkonyan v. S u lliv a n , 501 U.S. 89, 98 (1991). Thus, under sentence six, a "remand is not a final ju d g m e n t under the [Equal Access to Justice Act (EAJA)], and the window for filing an E A J A application does not open until judgment is entered in the district court following c o m p le tio n of the remand proceedings." Jackson v. Chater, 99 F.3d 1086, 1095 (11th C ir. 1996). 2

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D o n e this 7th day of January, 2009. /s/ Wallace Capel, Jr. W A L L A C E CAPEL, JR. UNITED STATES MAGISTRATE JUDGE

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