Hawrelak v. Commissioner of Social Security

Filing 19

OPINION entered by Judge Sue E. Myerscough on 11/22/2013. Defendant's Motion to Remand, d/e 10 is GRANTED, with the instruction that Defendant must remand Plaintiff's claim for a de novo hearing if the missing recording is not located wit hin 60 days. Plaintiff's Motion to Strike the Motion for Remand, d/e 12 is DENIED. The case is STAYED until either the recording is located or a de novo hearing is conducted. Accordingly, Plaintiff's pending Motion for Summary Judgment, d/e 11 is DENIED AS MOOT. Plaintiff may refile the Motion for Summary Judgment when the STAY is lifted. (MAS, ilcd)

E-FILED

Tuesday, 26 November, 2013 02:01:59 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RONALD M. HAWRELAK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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No. 13-03026

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter is before the Court on Defendant Commissioner of
Social Security’s (“the Commissioner”) Motion to Remand Due to
Missing Recording (d/e 10) and Plaintiff’s Motion to Strike the Motion
to Remand (d/e 12). For the reasons below, Defendant’s Motion to
Remand (d/e 10) is GRANTED and Plaintiff’s Motion to Strike (d/e 12)
is DENIED.

I. BACKGROUND
In 2005, Plaintiff Ronald Hawrelak was receiving Social Security
retirement benefits of $1,625 per month. At some point in 2007, the
Social Security Administration (“SSA”) learned Plaintiff was also
receiving payments from a Canadian pension plan for work not covered
under Social Security. The SSA then recalculated Plaintiff’s Social
Security benefits under a special formula for persons receiving foreign
pension plans. This resulted in a reduction of Plaintiff’s benefits to
$1,483.40 per month. The SSA also determined that Plaintiff was
overpaid Social Security benefits in the amount of $2,400 before the new
benefit amount went into effect. Plaintiff asked the SSA to reconsider
these changes and in May of 2008, submitted a hearing request before an
Administrative Law Judge (“ALJ”). In March 2009, a hearing was held
and the ALJ ruled that the reduction in benefits and overpayment
calculations were proper. On February 5, 2013, Plaintiff filed a
Complaint seeking review of the ALJ’s decision.
On June 13, 2013, Defendant filed a Motion to Remand the case
to the Commissioner because the recording of Plaintiff’s hearing before
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the ALJ is missing and a transcript cannot be prepared. Without the
transcript, Defendant contends Defendant will be unable to respond to
Plaintiff’s Complaint before this Court. Defendant states that upon
remand, the SSA will look for the missing recording. If the SSA cannot
locate the recording, the Commissioner will remand the case for a de
novo hearing before an ALJ. Plaintiff objects to Defendant’s Motion to
Remand, arguing that Defendant lacks the requisite good cause for this
Court to remand the case. Plaintiff also emphasizes that he has
expended considerable time and effort pursuing this case and does not
believe that his case should be further delayed due to the SSA’s error in
misplacing the recording.
II. ANALYSIS
District courts are authorized to remand cases to the
Commissioner under sentences four and six of section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g). Melkonyan v. Sullivan, 501
U.S. 89, 97-98 (1991)(“A district court may remand a final decision of
the Secretary . . . in conjunction with a judgment affirming, modifying,
or reversing the Secretary's decision (sentence four), or in light of
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additional evidence without any substantive ruling as to the correctness
of the Secretary’s decision (sentence six). . . .”). Pursuant to sentence
six, a district court may remand a case upon motion by the
Commissioner. The Commissioner must demonstrate good cause for the
remand and must file any such motion before responding to the
Plaintiff’s complaint. See § 405(g). While on remand, the district court
retains jurisdiction over the case. See Curtis v. Shalala, 12 F.3d 97, 100
(7th Cir. 1993)(contrasting sentence-six remands in which the district
court retains jurisdiction while the post-remand administrative
proceedings are pending with sentence-four remands where the court’s
remand order terminates the case).
Here, the parties do not dispute that the Commissioner filed the
present Motion before submitting a Response to Plaintiff’s Complaint.
The parties dispute whether a missing recording of the ALJ hearing
constitutes the requisite good cause for a remand. Missing recordings do
constitute good cause for remand.
In fact, Congress contemplated precisely the situation of a lost
recording when drafting § 405(g). H.R. Rep. No. 96-144, at 59 (1980):
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Where for example, the tape recording of the claimant's
oral hearing is lost or inaudible, or cannot be otherwise
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
H.R. Rep. No. 96-944, at 59 (1980). See also Acevedo v. Barnhart, 474
F. Supp. 2d 1001, 1004 (E.D. Wis. 2007)(“[I]t is clear that the
Commissioner’s inability to file a complete administrative record
constitutes good cause for a sentence six remand under the first
situation.”)(relying on H.R. Rep. No. 96-944, at 59).
Furthermore, without a transcript of the administrative
proceedings, the Court will be unable to meaningfully review the case.
Therefore, Defendant’s Motion for Remand is granted.
Notably, Congress intended such remands to be rare: “It is the
hope of the conferees that remands on the basis of these breakdowns in
the administrative process should be kept to a minimum so that persons
appealing their decision are not unduly burdened by the delay.” H.R.
Rep. No. 96-144, at 59. Despite Congress’s desires, these situations are
anything but rare and occur with alarming frequency. See, e.g.,
McCullough v. Apfel, 95 F. Supp. 2d 956 n.2 (S.D. Ind. 2000)(noting
that in one eight-month period, the Social Security Commission sought
remand of 190 cases nationwide due to lost records); see Acevedo, 474 F.
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Supp. 2d at 1004 (citing 11 district court cases in which Commissioner
sought remands because of lost or incomplete records). These remands
cause significant delay. One court found that the Commissioner’s
“standard practice” was to simply wait six to eight months for lost
records to appear before taking any affirmative action to resolve the
claim. McCullough, 95 F. Supp. 2d at 957 (stating that in the future the
court would consider measures to keep claims from “falling between
bureaucratic and judicial cracks”); see also Strother v. Astrue, 2008 U.S.
Dist. LEXIS 66101, 5 (E.D. Tex. 2008) (remanding with instructions for
the Commissioner to remand the case for a new hearing if the missing
records were not located within forty-five days). Accordingly, to prevent
undue delay, the Court remands this case with the instruction that the
Commissioner must remand the case for a hearing before an ALJ if the
lost record is not located within 60 days from entry of this Opinion.
III. CONCLUSION
For the reasons stated, Defendant’s Motion to Remand (d/e 10) is
GRANTED, with the instruction that Defendant must remand Plaintiff’s
claim for a de novo hearing if the missing recording is not located within
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60 days. Plaintiff’s Motion to Strike the Motion for Remand (d/e 12) is
DENIED. The case is STAYED until either the recording is located or a
de novo hearing is conducted. Accordingly, Plaintiff’s pending Motion
for Summary Judgment (d/e 11) is DENIED as MOOT. Plaintiff may
refile the Motion for Summary Judgment when the STAY is lifted.

ENTER: November 22, 2013.
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
United States District Judge

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