Luedt v. Astrue

Filing 14

ORDER granting 12 Motion to Remand to Commissioner of Social Security. Signed by Magistrate Carolyn S Ostby on 12/23/2011. (HMM) Modified on 12/23/2011 to change to written opinion. (NOB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
DARCI L. LUEDT,
CV 11-90-BLG-RFC-CSO
Plaintiff,
v.

ORDER GRANTING
UNOPPOSED MOTION TO
REMAND UNDER SENTENCE
SIX OF 42 U.S.C. § 405(g)

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

Defendant Michael J. Astrue, 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
July 21, 2010, hearing before an Administrative Law Judge are
inaudible. Defendant’s Mtn. to Remand (Court Doc. 12) at 2. Plaintiff
Darci L. Luedt does not object to the Commissioner’s motion for remand
and joins in the motion. Pltf’s Resp. (Court Doc. 13) at 1.
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). In a sentence six
remand, the court “does not affirm, modify, or reverse the Secretary's
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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). “Sentence six remands may be ordered in only two situations:
where the Commissioner requests a remand before answering the
complaint, or where new, material evidence is adduced that was for
good cause not presented before the agency. Unlike sentence four
remands, sentence six remands do not constitute final judgments.”
Akopyan v. Barnhart, 296 F.3d 852, 854-55 (9th Cir. 2002) (citation
omitted).
Here, the Commissioner has requested remand before answering
the Complaint. The Court finds good cause exists for remand. “Good
cause for remand under sentence six may exist when portions of the
recording from the hearing before the Administrative Law Judge are
inaudible.” Carr v. Social Security Admin. Comm’r, 2011 WL 6002928,
*1 (D. Me. 2011) (citing Bianchi v. Secretary of Health and Human
Services, 764 F.2d 44, 46 (1st Cir. 1985) (quoting H.R. Conf. Rep. No.
944, 96th Cong., 2d Sess. 59, reprinted in 1980 U.S. Code Cong. &
Ad.News 1277, 1407)).
Based on the foregoing, and because Luedt expressly does not
oppose remand, see Court Doc. 13, IT IS ORDERED that the
Commissioner’s motion (Court Doc. 12) is GRANTED. This matter is
remanded to the Commissioner under sentence six of 42 U.S.C. § 405(g)
for further administrative proceedings. Upon remand, the
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Administrative Law Judge will develop the record, hold a new hearing,
and issue a new decision.
DATED this 23rd day of December, 2011.
/S/ Carolyn S. Ostby
U.S. Magistrate Judge

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