Luczynski v. Astrue

Filing 10

ORDER granting 9 Motion to Remand to Social Security. Signed by District Judge Martin Reidinger on 04/24/2012. (thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:12cv01

ROBERT LEE LUCZYNSKI,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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ORDER OF REMAND

THIS MATTER is before the Court on the Defendant’s Agreed Motion
for Entry of Remand under Sentence Six of 42 U.S.C. §405(g). [Doc. 9]. As
noted, the Plaintiff agrees with the request for remand.
Sentence six of 42 U.S.C. §405(g) provides in pertinent 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 it may at any time order additional evidence to 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). The Commissioner here has not yet filed Answer.

The parties advise that the Appeals Council has determined that a
remand is warranted in this case. The Appeals Council proposes that upon
remand, the Administrative Law Judge be instructed (1) to consolidate this
claim with a subsequently filed application; (2) to consider all evidence in
accordance with HALLEX 1 I-5-3-17E; (3) to further develop the record as
warranted; (4) to obtain expert medical evidence to determine whether an
earlier onset date is warranted; and (5) to issue a new decision as to disability.
Based on the parties’ submission, the Court finds that there is good
cause to remand this matter to the Appeals Council for further proceedings,
including the consideration of new medical evidence. Moreover, because the
Appeals Councils previously did not consider this evidence or the HALLEX
ruling at issue, good cause has been shown for the failure to incorporate them
into the record of the prior proceeding. Remand pursuant to Sentence six of
§405(g) is therefore appropriate. Melkonyan v. Sullivan, 501 U.S. 89, 111
S.Ct. 2157, 115 L.Ed.2d 78 (1991).
IT IS, THEREFORE, ORDERED that the Defendant’s Agreed Motion for
Entry of Remand under Sentence Six of 42 U.S.C. §405(g) [Doc. 9] is hereby
GRANTED.

1

This acronym refers to the Social Security Administrations’ Hearing,
Appeals and Litigation Law Manual. Roten v. Asture, 2011 WL 4596129
n.4 (W.D.N.C. 2011).

IT IS FURTHER ORDERED that upon remand the Appeals Council shall
instruct the Administrative Law Judge Appeals (1) to consolidate this claim
with a subsequently filed application; (2) to consider all evidence in
accordance with HALLEX I-5-3-17E; (3) to further develop the record as
warranted; (4) to obtain expert medical evidence to determine whether an
earlier onset date is warranted; and (5) to issue a new decision as to disability.
The Clerk of Court is instructed that no Judgment shall be entered but
this case shall be administratively closed.
Signed: April 24, 2012