CARR v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 23

ORDER granting 10 Motion to Remand By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROGER E. CARR, JR.,
Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION
COMMISSIONER,

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) Docket no. 1:11-cv-00153-NT
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Defendant.

ORDER GRANTING MOTION TO REMAND
Defendant, the Commissioner of Social Security, has filed a Motion to
Remand under sentence six of 42 U.S.C. § 405(g) because significant portions of the
recording of the Plaintiff’s April 27, 2010 hearing before the Administrative Law
Judge are inaudible. Defendant’s Motion to Remand at 2 (Docket No. 10). The
Plaintiff does not object to remanding the case. Plaintiff’s Response in Opposition
at 3 (Docket No. 16). However, the Plaintiff asks the Court to remand only on the
issue of the onset of disability and to provide additional instructions for the
Administrative Law Judge on remand. Because ruling on the correctness of any of
the Administrative Law Judge’s determinations would be premature absent a
certified, full transcript of the Plaintiff’s hearing and would be inappropriate in a
remand under sentence six of § 405(g), the Defendant’s Motion to Remand is
GRANTED.

Sentence six of § 405(g) authorizes the Court, “on motion of the Commissioner
of Social Security made for good cause shown before the Commissioner files the
Commissioner’s answer, [to] remand the case to the Commissioner of Social
Security for further action by the Commissioner of Social Security.” 42 U.S.C. §
405(g) (2006). In a sentence six remand, the court “does not affirm, modify, or
reverse the Secretary’s decision; it does not rule in any way as to the correctness of
the administrative determination.” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991).
Melkonyan makes clear that the Court’s authority to remand is strictly limited to
the alternatives available in sentences four1 and six of § 405(g).
Good cause for remand under sentence six may exist when portions of the
recording from the hearing before the Administrative Law Judge are inaudible. In
Bianchi v. Secretary of Health and Human Services, 764 F.2d 44 (1st Cir. 1985), the
First Circuit quotes from the Conference Agreement on the Social Security
Amendments of 1980:
There are sometimes procedural difficulties which prevent the
Secretary 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 … good cause would exist to remand the
claim to the Secretary for appropriate action to produce a record which
the court may review under 205(g) of the act.
Bianchi, 764 F.2d at 46 (quoting H.R.Conf.Rep.No. 944, 96th Cong., 2d Sess. 59,
reprinted in 1980 U.S.Code Cong. & Ad.News 1277, 1407). In Bianchi, the First
Sentence four of § 405(g) states: “[t]he court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” § 405(g).
1

Circuit remanded to the District Court with instructions to remand to the
Administrative Law Judge because the unintelligible transcript precluded the
court’s “responsibility to scrutinize the record in its entirety” on appeal. Bianchi,
764 F.2d at 46 (quoting Millet v. Schweiker, 662 F.2d 1199, 1201 (5th Cir. 1981)).
The Plaintiff, who has provided excerpts from a transcript that he prepared
of both the April 27, 2010 and September 28, 2010 hearings to respond to the
Defendant’s Motion to Remand, argues that there is enough in these portions of the
transcript for the Court to determine on the merits whether the Administrative Law
Judge’s decision was supported by substantial evidence. Plaintiff’s Response in
Opposition at 2 (Docket No. 16). Plaintiff concedes that there are “deficiencies in
the audio recording.” Id. Indeed, the excerpts that the Plaintiff has supplied have
40 unintelligible portions. Without a full certified copy of the transcript of the
Plaintiff’s hearing before the Administrative Law Judge, the Court is unable to
reach the merits of the Plaintiff’s appeal. The Plaintiff is free to raise all of his
objections in the new hearing before the Administrative Law Judge and will have
an opportunity to raise them on appeal if the Administrative Law Judge renders an
adverse decision.
Accordingly, I find that the Commissioner has shown good cause for a
sentence six remand, and I GRANT the Defendant’s Motion to Remand and remand
the case to the Commissioner of Social Security for further action in accordance
with 42 U.S.C. § 405(g).

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 30th day of November, 2011.