Hart v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER granting 10 Motion to Remand; Signed by Magistrate Judge H. Brent Brennenstuhl on 7/2/14: The Social Security Appeals Council shall remand the case to an Administrative Law Judge for a new hearing and issue a new decis ion, de novo. The Court also finds that this Court retains jurisdiction of the case and will not enter a final judgment until after post-remand proceedings are completed, the Commissioner has filed with the Court an answer and administrative record, and Plaintiff has had the opportunity to file his Fact and Law Summary if there is an unfavorable decision by the Administrative Law Judge. cc: Counsel, Aaron Joseph Hart (pro se) (DJT)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:14CV-00009-HBB
AARON JOSEPH HART
PLAINTIFF
VS.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
DEFENDANT
MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Aaron Joseph Hart (“Plaintiff”) seeking judicial
review of the final decision of the Commissioner, pursuant to 42 U.S.C. § 405(g).
The
Commissioner, Carolyn W. Colvin (“Commissioner”), has not yet filed an answer and administrative
record in the case. Instead, the Commissioner filed a motion for entry of judgment under sentence
six of 42 U.S.C. § 405(g) with remand of the cause to the Commissioner for further administrative
proceedings (DN 10). Plaintiff filed a response to the motion on July 1, 2014 (DN 14), well after
the May 27, 2014 deadline.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of memorandum opinion and entry of judgment, with direct review by the Sixth
Circuit Court of Appeals in the event an appeal is filed (DN 12). This matter is now ripe for
determination.
CONCLUSIONS OF LAW
A.
“A district court’s authority to remand a case ... is found in 42 U.S.C. § 405(g) ...” Hollon
ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 482-83 (6th Cir. 2006). The Social Security
Act authorizes “two types of remand: (1) a post judgment remand in conjunction with a decision
affirming, modifying, or reversing a decision of the [Commissioner] (a sentence-four remand); and
(2) a pre-judgment remand for consideration of new and material evidence that for good cause was
not previously presented to the [Commissioner] (a sentence six-remand).” Faucher v. Sec’y of
Health and Human Servs., 17 F.3d 171, 174 (6th Cir. 1994) (citing 42 U.S.C. § 405(g)).
Here, the Commissioner requests voluntary remand for further administrative proceedings,
pursuant to sentence six of 42 U.S.C. § 405(g) (DN 10). Sentence six of 42 U.S.C. § 405(g)
provides:
The court ... may at any time order additional evidence be taken
before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in
a prior proceeding.
42 U.S.C. § 405(g) (emphasis added). A “sentence six” remand is appropriate “only if the evidence
is ‘new’ and ‘material’ and ‘good cause’ is shown for the failure to present the evidence to the
Administrative Law Judge.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010).
Evidence is “new” if it did not exist at the time of the administrative proceeding and “material” if
there is a reasonable probability that a different result would have been reached if introduced during
the original proceeding.” Id. “Good cause” is demonstrated by “a reasonable justification for the
failure to acquire and present the evidence for inclusion in the hearing before the ALJ.” Foster v.
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Halter, 279 F.3d 348, 357 (6th Cir. 2001). “The party seeking a remand bears the burden of showing
that these [ ] requirements are met.” Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477,
483 (6th Cir. 2006).
B.
As stated above, the Commissioner requests voluntary remand of the claim for further
administrative proceedings, pursuant to sentence six of 42 U.S.C. § 405(g) (DN 10). The
Commissioner explains that the recording of the August 8, 2013 administrative hearing is
incomplete and, therefore, good cause exists to remand the case for a new hearing (DN 10). As a
result, Commissioner states that upon receipt of the Court’s remand, the Appeals Council will
remand the case to an Administrative Law Judge to hold proceedings, de novo, and issue a new
decision (DN 10).
In opposition, Plaintiff objects to Commissioner’s request for a voluntary remand of the
claim for a new hearing (DN 14). Plaintiff states that he does not understand the purpose of
remanding the case for a new hearing and he requests that the Commissioner provide him with a
copy of the hearing transcript (DN 14). He also maintains that he has been “singled-out” by the ALJ
when he was denied his request to have certain medical sources provide testimony regarding his
medical history (DN 14). Here, Plaintiff filed his response approximately five weeks after the
deadline expired for filing a response and, therefore, the undersigned is not obliged to consider his
arguments.
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C.
In support of her position, the Commissioner cites to a joint conference committee report
(DN 10). The joint conference committee of Congress in reporting on Social Security Disability
Amendments of 1980 to the Social Security Act indicated that in some cases, procedural difficulties,
such as an inaudible hearing tape or a lost file, necessitate a request for remand. The committee
stated as follows:
The conferees have been informed that there are sometimes
procedural difficulties which prevent the [Commissioner] from
providing the court with a transcript of administrative proceedings.
Such a situation is an example of what could be considered “good
cause” for remand. Where, for example, the tape recording of the
claimant’s oral hearing is lost or inaudible, or cannot otherwise be
transcribed, or where the claimant’s files cannot be located or are
incomplete, good cause would exist to remand the claim to the
[Commissioner] for appropriate action to produce a record which the
courts may review under 205(g) of the act. 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 resulting
delay. H.R.Conf.Rep. No. 944, 96th Cong., 2d Sess. 59 (1980),
reprinted in 1980 U.S.C.C.A.N. 1277, 1392, 1407.
Cofer v. Astrue, 2009 WL 580340, *1 (E.D. Ca. 2009).
While there is no precedent regarding this issue in the Sixth Circuit, the undersigned looks
to several other courts for guidance. Varying federal courts have held that an unavailable or
inaudible hearing tape constitutes good cause to remand the claim to the Commissioner for
appropriate action. See Cofer, 2009 WL 580340, at *2; see also Gibson v. Astrue, 2009 WL
1376623 (N.D. Miss. 2009); Wilkerson v. Astrue, 2008 WL 2113348 (W.D. Ark. 2008); Shank v.
Barnhart, 2002 WL 1839163 (E.D. Penn. 2002). Specifically, in Cofer, the district court noted as
follows:
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The court has considered Plaintiff’s opposition, however, the attorney
for the Social Security Administration, an officer of the court, has
represented that the transcripts of the hearing are unavailable. This
court is unable to conduct a review of Plaintiff’s case without a
transcript of the hearing. Therefore, good cause exists to support the
Commissioner’s request for remand. The Social Security Appeals
Council shall remand the case to an Administrative Law Judge for a
new hearing.
2009 WL 580340, at *2.
The undersigned recognizes that most remands under sentence six of 42 U.S.C. § 405(g) are
triggered by the existence of new and material evidence unavailable at the hearing instead of
procedural defects as is the case here. However, Plaintiff cannot challenge an unfavorable decision
by the Appeals Council if a transcript of the hearing is unavailable for him to review. Moreover,
this Court is also unable to conduct a throughout review of the case, under 205(g) of the Social
Security Act, without a transcript of the hearing. Also, there is no evidence that the Commissioner
requests this remand in bad faith or that Plaintiff will be unduly burdened by another hearing. In
light of the aforementioned committee report and relevant case law, the undersigned finds that there
is good cause here to remand the case for a new hearing, pursuant to sentence six of 42 U.S.C. §
405(g).
ORDER
Based on the foregoing reasons, the Commissioner’s motion to remand, pursuant to sentence
six of 42 U.S.C. § 405(g) (DN 10), is GRANTED. The Social Security Appeals Council shall
remand the case to an Administrative Law Judge for a new hearing and issue a new decision, de
novo. The Court also finds that this Court retains jurisdiction of the case and will not enter a final
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judgment until after post-remand proceedings are completed, the Commissioner has filed with the
Court an answer and administrative record, and Plaintiff has had the opportunity to file his Fact and
Law Summary if there is an unfavorable decision by the Administrative Law Judge.
July 2, 2014
Copies to:
Aaron Joseph Hart, pro se
Counsel of Record
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