French v. Commissioner of Social Security

Filing 8

ORDER granting 7 Motion to Remand Under Sentence 6. This case is remanded to the defendant for further proceedings. See text of Order. Signed by Magistrate Judge Leonard T Strand on 1/17/13. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
SYMMANTHA LYNN FRENCH,
Plaintiff,

No. C12-3086-MWB

vs.

ORDER

MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
____________________

This case is before me on a motion (Doc. No. 7) filed by defendant, the
Commissioner of Social Security (the Commissioner), to remand this case pursuant to 42
U.S.C. § 405(g). The Commissioner states:
The Appeals Council has notified undersigned counsel for the Commissioner
that the claim file(s) of the relevant Administrative Law Judge (ALJ)
decision cannot currently be located. The Commissioner thus respectfully
requests the Court remand to the Appeals Council under sentence six of 42
U.S.C. § 405(g) for reconstruction of the record. Upon receipt of the court
order remanding the case, the Appeals Council will remand the case to an
ALJ for reconstruction of the administrative record, holding of a de novo
hearing, and issuance of a new decision.
Doc. No. 7-1 at 2. The Commissioner further states that his counsel has conferred with
plaintiff’s counsel and that plaintiff’s counsel does not resist. Doc. No. 7 at 1.
Sentence six of section 405(g) states, in relevant part:
The court may, on motion of the Commissioner of Social Security made for
good cause shown before the Commissioner files the Commissioner's
answer, remand the case to the Commissioner of Social Security for further
action by the Commissioner of Social Security . . . and the Commissioner
of Social Security shall, after the case is remanded, and after hearing such
additional evidence if so ordered, modify or affirm the Commissioner's
findings of fact or the Commissioner's decision, or both, and shall file with

the court any such additional and modified findings of fact and decision, and,
in any case in which the Commissioner has not made a decision fully
favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner's action in modifying or affirming
was based.
See 42 U.S.C. § 405(g). The Commissioner has not yet filed an answer. As such, and
based on the circumstances he has described, I find that remand is appropriate. See also
Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993).
Based on the foregoing, the Commissioner’s motion for remand (Doc. No. 7) is
granted, and this case is remanded to the defendant for further proceedings. “The court
will retain jurisdiction and reserve final judgment until the parties have complied with the
statutory post-remand requirements of 42 U.S.C. § 405(g).” Hanson v. Chater, 895 F.
Supp. 1279, 1288 (N.D. Iowa 1995).

IT IS SO ORDERED.
DATED this 17th day of January, 2013.

________________________________
LEONARD T. STRAND
MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT

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