Santorova v. Kijakazi

Opinion

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10 JANA S., Case No. 23-cv-1485-DEB 11 Plaintiff, ORDER GRANTING JOINT 12 v. MOTION FOR VOLUNTARY 13 REMAND PURSUANT TO KILOLO KIJAKAZI, Acting SENTENCE SIX OF 42 U.S.C. § 405(g) 14 Commissioner of Social Security, 15 Defendant. [DKT. NO. 12] 16 17 Before the Court is the parties’ Joint Motion to Voluntary Remand Pursuant to 18 Sentence Six of 42 U.S.C. § 405(g). Dkt. No. 12. The parties agree that this case 19 should be remanded for further administrative proceedings under sentence six of 42 20 U.S.C. § 405(g) because of a missing hearing recording. Id. at 1. They further agree 21 that should the Appeals Council not locate the missing recording within a reasonable 22 period, the Appeals Council will remand the case for a de novo hearing. Id. at 2. 23 Finally, the parties submit that should the Social Security Agency deny Plaintiff’s 24 application for disability benefits, Plaintiff may seek judicial review by reinstating 25 this case. Id. 26 For the reasons discussed below, the Court GRANTS the Motion. 27 // 28 1 I. Background 2 On August 14, 2023, Plaintiff filed a complaint, challenging the 3 Commissioner’s denial of Social Security benefits. Dkt. No. 1. The parties 4 subsequently consented to the case being heard by a magistrate judge in accordance 5 with 28 U.S.C. § 636(c). Dkt. No. 6. The parties filed a joint motion requesting 6 additional time for the Commissioner to file the Certified Administrative Record 7 (“CAR”) to locate a missing hearing recording. Dkt. No. 9. The Court granted the 8 parties’ motion and ordered the Commissioner to file the CAR by November 13, 9 2023. Dkt. No. 11. On October 23, 2023, the parties filed the instant motion 10 requesting remand pursuant to sentence six of 42 U.S.C. § 405(g). Dkt. No. 12.

11 II. Legal Standard 12 An individual can seek judicial review in district court “after any final decision 13 of the Commissioner of Social Security made after a hearing to which [the individual]

14 was a party[.]” 42 U.S.C. § 405(g). Once a claimant brings an action under § 405(g), 15 the district court may remand to the Commissioner of t he Social Security 16 Administration pursuant to sentence four or sentence six of § 405(g). Hoa Hong Van 17 v. Barnhart, 483 F.3d 600, 605 (9th Cir. 2007) (citations omitted). Sentence six of 18 § 405(g) authorizes, in relevant part, a remand for further action by the Commissioner 19 upon a showing of good cause before an answer is filed. See also Akopyan v. 20 Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“Sentence six remands may be ordered 21 in only two situations: where the Commissioner requests a remand before answering 22 the complaint, or where new, material evidence is adduced that was for good cause 23 not presented before the agency.”) (citation omitted). “In a sentence six remand case, 24 the Court retains jurisdiction following the remand.” George S. C. v. Saul, No. 20- 25 CV-06218-RMI, 2022 WL 445761, at *3 (N.D. Cal. Feb. 14, 2022) (internal 26 quotation marks and citations omitted). 27 // 28 1 III. Discussion 2 Here, the Commissioner has not filed an answer, and the administrative record 3 is incomplete due to a missing hearing recording. Dkt. No. 12. The Court finds good 4 cause exists to remand for further action by the Commissioner. See Gomez v. Astrue, 5 No. CIV11-705-TUC-LAB, 2012 WL 4856390, at *1 (D. Ariz. Oct. 10, 2012)

6 (remanding pursuant to sentence six where the administrative record was 7 incomplete); see also Davis v. Astrue, No. 1:08CV00525TAG, 2008 WL 4582498, 8 at *1 (E.D. Cal. Oct. 14, 2008) (“Good cause is shown where, for example, there are 9 problems including an inaudible or lost tape recording of an administrative 10 hearing.”).

11 IV. Conclusion 12 For the reasons set forth above, IT IS HEREBY ORDERED that the Joint 13 Motion to Voluntary Remand Pursuant to Sentence Six of 42 U.S.C. § 405(g) (Dkt.

14 No. 12) is GRANTED.

15 IT IS FURTHER ORDERED that this action is remanded to the 16 Commissioner of the Social Security Administration pursuant to sentence six of 42 17 U.S.C. § 405(g). 18 IT IS FURTHER ORDERED that the Appeals Council has 60 days to locate 19 the missing hearing recording and supplement the administrative record. If the 20 Appeals Council is unable to locate the missing hearing recording within 60 days, an 21 Administrative Law Judge must conduct a de novo hearing and issue a new decision 22 based on a complete record. If the outcome still is not fully favorable to Plaintiff, the 23 Commissioner must file with the Court the Certified Administrative Record, 24 including a transcript of the additional record and testimony on which the 25 Commissioner’s action in modifying or affirming is based, and Plaintiff may seek 26 judicial review by reinstating this case rather than by filing a new complaint. 27 However, if the outcome is fully favorable to Plaintiff, the parties must move the 28 Court for entry of judgment. IT IS FURTHER ORDERED that Plaintiff and Defendant must file Joint Status Reports with the Court beginning December 29, 2023, and continuing every 60 days thereafter until further order of the Court. Each Joint Status Report must ° summarize what actions have been taken and when they were accomplished as well ° as what further actions will be taken and when they will be accomplished. ’ IT IS SO ORDERED. 8 9 | Dated: October 30, 2023 ~ i nuh oP Toion. 11 Daniel E. Butcher United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28