Simmons v. Social Security Administration

Filing 10

REPORT AND RECOMMENDATIONS re 8 MOTION to Remand to Social Security filed by Social Security Administration. Objections to R&R due by 11/10/2008. Signed by Magistrate Judge Alma L. Chasez on 10/27/08.(dno, )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA LEROY SIMMONS VERSUS MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION CIVIL ACTION NUMBER: 08-3690 SECTION: "B"(5)

REPORT AND RECOMMENDATION

Presently before the Court is defendant's motion to remand. (Rec. doc. 8). motion. Plaintiff has filed no opposition to defendant's

For the reasons that follow, it is recommended that

defendant's motion be granted. The above-captioned matter is an action for judicial review of an adverse decision of the Commissioner of the Social Security Administration denying plaintiff's application for Supplemental Security Income ("SSI") benefits. (Rec. doc. 1). The relevant part of the governing statute, 42 U.S.C. §405(g), provides that "[a] court may, on motion of the Commissioner ... made for good cause shown before the Commissioner files ... [an] answer, remand the case to the Commissioner for further action ..." by the Commissioner in moving to remand The reason cited case is the

this

inaudibility of the audiotape of the administrative hearing that was held on August 30, 2007 and his desire to hold another hearing at which an audible audiotape will be generated. The need to

locate or to reconstruct a claimant's lost claim file, of which the audiotape is an integral part, constitutes "good cause" within the meaning of §405(g). Simon v. Heckler, 585 F.Supp. 537, 538 (S.D.

Ohio 1984). See also Mullen v. Secretary of Health and Human Services, 878 F.Supp. 682, 683-84 (D. Del. 1995). Accordingly, it

will be recommended that defendant's motion be granted, reserving to plaintiff the right to move to reopen this matter if a new administrative hearing is not held within a reasonable period of time. RECOMMENDATION For the foregoing reasons, it is recommended that defendant's motion be granted and that plaintiff's case be remanded to the Commissioner, reserving to plaintiff the right to move to reopen this matter if a new administrative hearing is not held within a reasonable period of time. A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 days after being served

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with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v.

United Services Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc). Hello This is a Test New Orleans, Louisiana, this _____ day of _________________, October 27th
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UNITED STATES MAGISTRATE JUDGE

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