Opinion
Case No. 02-4106-JAR
November 13, 2003
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff seeks review of an unfavorable decision of the Commissioner of Social Security (Commissioner) denying disability insurance benefits and supplemental security income under sections 216(i), 223, 1602 and 1614(a)(3)(A) of the Social Security Act (the Act). This matter is before the Court on Defendant's Second Motion for Remand Pursuant to Sentence Six of 42 U.S.C. § 405(g) (Doc. 12). The Honorable K. Gary Sebelius issued a Report and Recommendation (Doc. 17) which found that Defendant's Second Motion for Remand should be denied.
42 U.S.C. § 416(i), 423, 1318a, and 1382c(a)(3)(A).
The matter is currently before the Court on Defendant's Objection to the Magistrate Judge's Report and Recommendation (Doc. 18). The standards this Court must employ when reviewing objections to the recommendation and report are clear. Only those portions of the recommendation and report that have been specifically identified as objectionable will be reviewed. The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation."
See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72.
See Garcia v. City of Albuquerque, 232 F.3d 760, 767 (10th Cir. 2000); Gettings v. McKune, 88 F. Supp.2d 1205, 1211 (D. Kan. 2000).
See Griego v. Padilla, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
Defendant objects to the Magistrate Judge's finding that Defendant's motion for remand does not satisfy "good cause" for remand pursuant to the first prong of sentence six of 42 U.S.C. § 405(g). The first prong of 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 the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security." Based on its de novo review and considering all relevant evidence of record, this Court likewise finds that Defendant has not shown good cause for a remand at this time.
This Court previously granted a sentence six remand in this case in order to locate the administrative file. Defendant's second motion for remand is not based on any procedural defect. Rather, Defendant now seeks a remand based on alleged legal errors by the ALJ and for further development of the case. Plaintiff filed her applications for benefits in November and December of 1996. Failure to resolve a disability application over the course of seven years places an undue burden on the Plaintiff. Because of this delay, the ALJ errors suggested by Defendant and her desire to further develop the file are not sufficient "good cause" in this particular case. The decision as to whether the "good cause" standard embodied in 42 U.S.C. § 405 (g) has been met lies within the sound discretion of the court.
See H.R. Conf. Rep. No. 96-944, 96th Cong., 2d Sess. 59(1980), reprinted in 1980 U.S.C.C.A.N. 1392, 1407 (explaining how some procedural defects would be considered "good cause" for remand).
Gooden v. Barnhart, 191 F. Supp.2d 150, 152-53 (D.D.C. 2002) (citations omitted).
The Court finds that Defendant's second motion for remand pursuant to sentence six must be denied. Although this Court agrees that a sentence four remand would likewise not be appropriate at this time, Defendant may renew her motion for remand under sentence four following the filing of the parties' briefs.
IT IS THEREFORE ORDERED that Defendant's Objection to the Magistrate Judge's Report and Recommendation (Doc. 18) shall be OVERRULED.
IT IS FURTHER ORDERED that Defendant's Second Motion for Remand (Doc. 12) shall be DENIED in accordance with the September 22, 2003 Report and Recommendation (Doc. 17) which this Court adopts.
IT IS FURTHER ORDERED that the schedule set forth in the Report and Recommendation shall be modified to provide that Defendant shall file her Answer to Plaintiffs Complaint within 10 (ten) days after being served with a copy of this Memorandum and Order Adopting Report and Recommendation.
IT IS SO ORDERED.