Goldstein v. Colvin

Filing 34

ORDER by Magistrate Judge Howard R. Lloyd granting 23 defendant's motion to remand; denying 25 , 31 plaintiff's motions for reversal order and judgment. (hrllc2, COURT STAFF) (Filed on 1/12/2015)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 STEVEN M. GOLDSTEIN, 12 Case No. 5:13-cv-03504 HRL Plaintiff, 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 17 ORDER GRANTING DEFENDANT’S MOTION FOR REMAND AND DENYING PLAINTIFF’S MOTIONS FOR REVERSAL ORDER AND JUDGMENT [Re: Dkt. Nos. 23, 25, 31] Defendant moves for remand pursuant to 42 U.S.C. § 405(g) sentence six, citing the 18 agency’s inability to locate the record of the administrative proceedings re plaintiff’s claim for 19 benefits. Defendant requests an opportunity to reconstruct the record; or, if the record cannot be 20 reconstructed, then defendant says she will remand the matter to an administrative law judge to 21 reconstruct the record, hold a new hearing, and issue a decision. Plaintiff opposes the motion and 22 separately moves for judgment on the merits, arguing that defendant did not answer his complaint. 23 Upon consideration of the moving and responding papers, 1 the court grants defendant’s motion 24 and denies plaintiff’s motions. 25 26 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. Plaintiff’s motions for a reversal order 27 1 28 Plaintiff filed an unauthorized sur-reply with respect to defendant’s remand motion. The court nevertheless has fully considered all of plaintiff’s filings. 1 2 and judgment are denied. Plaintiff contends that remand is not warranted because defendant has cited no new 3 evidence. He is, however, conflating the requirements for the two different types of remand 4 authorized by § 405(g) sentence six. Sentence six remands may be ordered in two situations: 5 “where the Secretary requests a remand before answering the complaint, or where new, material 6 evidence is adduced that was for good cause not presented before the agency.” Shalala v. 7 Schaefer, 509 U.S. 292, 297 n.2, 113 S. Ct. 2625, 125 L.Ed.2d 239 (1993); see also Melkonyan v. 8 Sullivan, 501 U.S. 89, 100 & n.2, 111 S. Ct. 2157, 115 L.Ed.2d 78 (1991) (same); Akopyan v. 9 Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (same). Only the first type of sentence six remand is 10 United States District Court Northern District of California 11 at issue here. Moreover, this court finds good cause for defendant’s request. Congress clearly has stated 12 that good cause for remand may be found where difficulties, such as an inaudible hearing tape or 13 lost files, arise. See H.R.Rep. No. 96-944, 96th Cong., 2d Sess. 59 (1980). Plaintiff’s arguments 14 about defendant’s duty to compile an administrative record do not persuade this court otherwise 15 and do not subvert or invalidate Congress’ clearly stated intent. While plaintiff argues that 16 defendant provided meaningful review of his claims at the administrative level, meaningful review 17 by this court is not possible without a proper record. 18 Defendant’s motion for remand therefore is granted. This matter is remanded pursuant to 19 42 U.S.C. § 405(g) sentence six. 20 SO ORDERED. 21 22 23 Dated: January 12, 2015 ______________________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 2 1 2 5:13-cv-03504-HRL Notice has been electronically mailed to: Lynn M. Harada Lynn.Harada@ssa.gov, ODAR.OAO.COURT.1@ssa.gov, sf.ogc.ndca@ssa.gov 3 Steven Michael Goldstein GoldyCISSP@hotmail.com 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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