Dudley v. Astrue , 246 F. App'x 249 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 30, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-31169
Summary Calendar
OSCAR C. DUDLEY,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Louisiana
(06-CV-604)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant, Oscar C. Dudley, appeals the district
court’s order remanding his disability-benefits claim for further
administrative proceedings pursuant to sentence six of 42 U.S.C. §
405(g). Finding no abuse of discretion, we affirm.
I. BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Dudley worked for nearly four decades as a fisherman. He
alleged that his disability began on June 15, 1994, when he was
injured while working on a boat. In August 1995, Dudley applied
for supplemental security benefits and disability insurance
benefits. Both applications were denied initially and on
reconsideration. On August 21, 1996, Dudley was granted a hearing
before an administrative law judge (ALJ). The ALJ found no
disability.
On September 16, 1997, the Appeals Council denied Dudley’s
request for review. Dudley filed suit in federal district court,
seeking review of the denial of benefits decision. The
Commissioner moved to remand the case for further proceedings. On
October 19, 1998, the district court remanded the case pursuant to
the fourth sentence of 42 U.S.C. § 405(g). The remand order
directed that an ALJ update Dudley’s medical record and conduct a
new hearing.
On October 27, 1999, after the new hearing, the ALJ issued a
decision, finding that Dudley had been disabled since October 1,
1996. Dudley alleged the onset of disability was the date of his
work-related accident on June 15, 1994. Dudley submitted his
objections to the Appeals Council on November 19, 1999. Over six
years later, on March 6, 2006, Dudley received notice that the
Appeals Council declined to assume jurisdiction over the ALJ’s
decision.
Dudley filed suit in federal district court pursuant to 42
2
U.S.C. § 405(g) to obtain review of the Commissioner’s decision.
Prior to filing an answer, the Commissioner filed a motion for
remand pursuant to 42 U.S.C. § 405(g), asserting that a remand was
necessary because the Office of Hearings and Appeals could not
locate the record of the hearing.
Dudley opposed the motion for remand, arguing that the case
should not be remanded pursuant to sentence six of § 405(g).
Instead, he argued that it should be remanded pursuant to sentence
four of § 405(g) because without the record, the denial is not
supported by substantial evidence. He further argued that the
Commissioner had failed to demonstrate compliance with internal
procedures regarding searching for the missing record.
The magistrate judge found that the Commissioner had shown
good cause for remand and recommended that the action be remanded
pursuant to sentence six of § 405(g). Dudley objected, reiterating
his previous arguments. After de novo review, the district court
granted the Commissioner’s motion to remand for the reasons stated
in the magistrate judge’s report. Dudley appeals.1
II. ANALYSIS
A. Substantial Evidence
Dudley contends that the district court erred in remanding the
case pursuant to the sixth sentence of § 405(g). Instead, he
1
We note that the facts are taken from Dudley’s brief.
There is no administrative record, and the Commissioner has failed
to file an appearance of counsel or brief.
3
contends that the district court should have reversed the denial of
benefits because it was not supported by substantial evidence and
remanded it pursuant to the fourth sentence of § 405(g).
We review the decision to deny benefits to determine whether
the decision is supported by substantial evidence. Martinez v.
Chater, 64 F.3d 172, 173 (5th Cir. 1995). Dudley argues that
because the Appeals Council did not review the missing hearing
record, there was not substantial evidence to support the
Commissioner’s denial of benefits. However, according to Dudley’s
recitation of the facts, the Appeals Council “declined to assume
jurisdiction over the decision of the ALJ that was issued on
October 27, 1999.” Brief at 5. Accordingly, it appears that the
Appeals Council did not review the decision. Moreover, it is
unclear whether the record was lost prior to the Appeals Council’s
order. Under these circumstances, we are unable to determine
whether substantial evidence supported the denial of benefits.2
B. Remand
Dudley also argues that the district court erred in remanding
pursuant to the sixth sentence in § 405(g). We review the decision
to remand for abuse of discretion. Bordelon v. Barnhart, No. 05-
30626, 2005 WL 3502067, * 3 n.12 (5th Cir. 2005) (unpublished).
A federal court may remand a social security case pursuant
2
However, Dudley may raise this claim after further
administrative proceedings provide a record.
4
only to the fourth and sixth sentences of § 405(g). Melkonyan v.
Sullivan, 501 U.S. 89, 97-98 (1991). “The fourth sentence of §
405(g) authorizes a court to enter ‘a judgment affirming,
modifying, or reversing the decision of the [Commissioner], with or
without remanding the cause for a rehearing.’” Id. at 98.
In contrast, if a remand is pursuant to the sixth sentence of
§ 405(g), “[t]he district court does not affirm, modify, or reverse
the [Commissioner’s] decision; it does not rule in any way as to
the correctness of the administrative determination.” Id. In the
case of a remand pursuant to sentence six, the district court
retains jurisdiction of the case. Istre v. Apfel, 208 F.3d 517,
519 (5th Cir. 2000). More specifically, sentence six provides that
“[t]he court may, on motion of the Commissioner of Social Security
made for good cause shown before the Commissioner . . . files [an]
answer, remand the case to the Commissioner . . . for further
action by the Commissioner . . . .”3
3
The full text of the sixth sentence of § 405(g) provides
that:
The court may, on motion of the Commissioner made for
good cause shown before he files his answer, remand the
case to the Commissioner for further action by the
Commissioner, and it may at any time order additional
evidence to be taken before the Commissioner, 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; and the Commissioner shall, after the case is
remanded, and after hearing such additional evidence if
so ordered, modify or affirm his findings of fact or his
decision, or both, and shall file with the court any such
5
Here, the Commissioner did file a motion to remand prior to
filing an answer. Thus, the question is whether good cause was
shown. The statute’s legislative history demonstrates Congress
intended that a lost record would constitute good cause for a
remand:
[T]here are sometimes procedural difficulties which
prevent the [Commissioner] 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 claimant’s oral hearing is lost or
inaudible, or cannot otherwise be transcribed . . . good
cause would exist to remand the claim to the
[Commissioner] for appropriate action to produce a record
which the court may review.
Evangelista v. Secretary of Health and Human Serv., 826 F.2d 136,
141 (1st Cir. 1987) (quoting H.R. Conf.Rep. No. 944, 96th Cong., 2d
Sess. 59, reprinted in 1980 U.S.Code Cong. & Ad.News 1277, 1407).
Dudley acknowledges that a missing record may constitute good
cause. Nonetheless, he argues that the Commissioner has not acted
in good faith by failing to acknowledge that the record was missing
until “forced to do so.” This Court has found bad faith when the
Appeals Council denied benefits despite a missing record. Baker v.
Bowen, 839 F.2d 1075, 1081-82 (5th Cir. 1988). However, in that
case, the facts were undisputed. Here, it is not clear when the
additional and modified findings of fact and decision,
and a transcript of the additional record and testimony
upon which his action in modifying or affirming was
based.
6
record was lost. The missing record and the Commissioner’s failure
to file a brief or even respond with an explanation for such
failure has made it impossible to make a determination of good
faith.4 Accordingly, we are constrained to conclude that the
district court did not abuse its discretion in finding that the
missing record constituted good cause for remanding the case
pursuant to sentence six of § 405(g).
Nonetheless, we are troubled by the six-year delay between the
second hearing and the Appeals Council’s decision to decline
jurisdiction. “Because of the lengthy history of this case as it
has wound its way through administrative channels and judicial
appeals, we urge the [Commissioner] to expedite reconsideration of
this matter, giving final resolution of [Dudley’s] claim highest
priority.” Parks v. Harris, 614 F.2d 83, 85 (5th Cir. 1980).
The district court’s judgment is AFFIRMED.
4
We note that Dudley is free to raise the claim of bad faith
after further administrative proceedings provide a record.
7