Baird v. Astrue

Filing 17

ORDER denying Plaintiff's 13 Motion to Remand. Signed by Judge Frederick J Martone on 12/22/11.(ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of Social)
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Security Administration,
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Defendant.
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Jeff A. Baird, D.O.,

No. CV 11-00582-PHX-FJM
ORDER

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The court has before it plaintiff's motion to remand (doc. 13), defendant's objection

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(doc. 14), and plaintiff's reply (doc. 15). Plaintiff requests remand to the Social Security

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Administration pursuant to 42 U.S.C. § 405(g). This statute provides for judicial review and

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requires the Commissioner to "file a certified copy of the transcript of the record including

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the evidence upon which the findings and decision complained of are based." 42 U.S.C. §

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405(g).

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42 U.S.C. § 405(g) provides two methods by which we may remand. Pursuant to

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sentence four, we "have power to enter, upon the pleadings and transcript of the record, a

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judgment affirming, modifying, or reversing the decision of the Commissioner of Social

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Security, with or without remanding the cause for a rehearing." § 405(g). A sentence-six

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remand may be ordered "where the [Commissioner] requests a remand before answering the

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complaint, or where new, material evidence is adduced that was for good cause not presented

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before the agency." Shalala v. Schaefer, 509 U.S. 292, 297 n.2, 113 S. Ct. 2625, 2629 n.2

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(1993). "[I]n § 405(g) actions, remand orders must either accompany a final judgment

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affirming, modifying, or reversing the administrative decision in accordance with sentence

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four, or conform with the requirements outlined by Congress in sentence six." Melkonyan

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v. Sullivan, 501 U.S. 89, 101-02, 111 S. Ct. 2157, 2165 (1991).

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Sentence four authorizes us to enter judgment with or without a remand order, not a

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remand order with or without a judgment. Schaefer, 509 U.S. at 297, 113 S. Ct. at 2629. A

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remand under this sentence must include entry of judgment after considering the

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administrative record. In this case, plaintiff requested reservation of a sentence four

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argument, so it is premature to enter judgment.

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The plaintiff, not the Commissioner, requests remand in this case, and does so after

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the Commissioner has already answered. There is also no showing of new, material

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evidence. Medical expert Grodan's testimony is filled with inaudible portions. These

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portions are immaterial, though. Many of the partial quotations are understandable,

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particularly in light of the fact that the ALJ or plaintiff's counsel asked him to repeat an

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answer or rephrased his testimony. E.g., Tr. at 90 l. 25, 94 ll. 5-13, 98 ll. 3-7. In addition,

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the ALJ's decision is supported by the understandable portion of Grodan's testimony and

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other evidence in the record. See Drejka v. Comm'r of Social Security, 61 F. App'x 778, 783-

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84 (3rd Cir. 2003) (remand unnecessary because "inaudibles" were immaterial, as the rest of

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the vocational expert's testimony supported the ALJ's finding that plaintiff was not disabled).

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Sentence six of § 405(g), therefore, is inapplicable.

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IT IS ORDERED DENYING plaintiff's motion to remand (doc. 13).

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DATED this 22nd day of December, 2011.

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