Case: 11-10359 Document: 00511612349 Page: 1 Date Filed: 09/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 23, 2011
No. 11-10359 Lyle W. Cayce
Summary Calendar Clerk
ROBIN FRENCHELL McKENZIE,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE, Commissioner of the Social Security Administration,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Texas
4:10-CV-00879-A-BJ
Before KING, SMITH and GRAVES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Robin Frenchell McKenzie (“McKenzie”), proceeding pro
se1, appeals the district court’s orders (1) granting the motion to remand for
further administrative proceedings by the Commissioner of the Social Security
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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This court recognizes that McKenzie represents herself as a pro se litigant, so out of
an abundance of latitude, this court liberally construes McKenzie’s allegations in particular
when the proceedings raise such complex issues of both civil and administrative procedure.
See, e.g., Securities and Exch. Comm’n v. AMX, Int’l, Inc., 7 F.3d 71, 75 (5th Cir. 1993).
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No. 11-10359
Administration (“Agency”) and (2) denying McKenzie’s motion for
reconsideration of the Agency’s remand motion. We affirm the orders of the
district court.
I. Essential Facts and Procedural History
On November 18, 2010, McKenzie filed a complaint in this case with the
district court. McKenzie filed this civil action seeking judicial review of the
Agnecy’s final administrative decision denying her application for disability
insurance benefits pursuant to Title II of the Social Security Act (“Title II”). On
January 31, 2011, the Agency sought voluntary remand to the Agency, because
the Agency could not locate the Administrative Law Judge’s decision allegedly
dated March 21, 2008, and the recording of the administrative hearing allegedly
held on February 12, 2008.
On February 3, 2011, the district court granted the Agency’s motion to
remand. On February 15, 2011, McKenzie filed a combined motion to oppose
remand and motion for reconsideration. On March 1, 2011, McKenzie filed an
amendment to her motion for reconsideration. On March 2, 2011, the district
court denied McKenzie’s combined motion to oppose remand and motion for
reconsideration. On April 1, 2011, McKenzie appealed. On July 21, 2011, this
court granted McKenzie’s motion to expedite the appeal.
II. Standard of Review
This court reviews for abuse of discretion the district court’s order for
remand pursuant to 42 U.S.C. § 405(g). Bordelon v. Barnhart, 161 F.App’x 348,
353 (5th Cir. 2005); Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994); Salinas
v. Schweiker, 662 F.2d 345, 347 n.2 (5th Cir. 1981); Allen v. Schweiker, 642 F.2d
799, 802 (5th Cir. 1981). Remand pursuant to 42 U.S.C. § 405(g) is authorized
under two circumstances: (1) on motion of the Agency for good cause before the
Agency’s answer has been filed, or (2) for consideration of additional evidence
upon a showing that the evidence is new and material, and that good cause
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exists for the claimant’s failure to present the evidence earlier. Melkonyan v.
Sullivan, 501 U.S. 89, 100 n.2 (1991).
III. Analysis
Title II provides, in relevant 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; and the Commissioner of Social Security
shall, after the case is remanded, and after hearing
such additional evidence if so ordered, modify or affirm
the Commissioner's findings of fact or the
Commissioner's decision, or both, and shall file with the
court any such additional and modified findings of fact
and decision, and, in any case in which the
Commissioner has not made a decision fully favorable
to the individual, a transcript of the additional record
and testimony upon which the Commissioner's action in
modifying or affirming was based.
42 U.S.C. § 405(g). This court has recognized that the legislative history of 42
U.S.C. § 405(g) authorizes, with limitation, a lost record or a lost claim file as
constituting good cause for a court to remand a claim to the Agency. Dudley
v. Astrue, 246 Fed. Appx. 249, 252 (2007) (citing 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)):
The conferees have been informed that there are
sometimes procedural difficulties which prevent the
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No. 11-10359
secretary 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 the
claimant's oral hearing is lost or inaudible, or cannot
otherwise be transcribed, or where the claimant's files
cannot be located or are incomplete, good cause would
exist to remand the claim to the secretary for
appropriate action to produce a record which the courts
may review under [42 U.S.C. §] 205(g) of the act. It is
the hope of the conferees that remands on the basis of
these breakdowns in the administrative process should
be kept to a minimum so that persons appealing their
decision are not unduly burdened by the resulting delay.
(Emphasis added.)
Here, in the Agency’s motion for remand, the Agency represented that
“[u]pon receipt of the Court’s order, the Appeals Council will remand the case to
an Administrative Law Judge for reconstruction of the administrative record,
and to hold an administrative hearing and issue a new decision.” Indeed, good
record keeping is a hallmark of transparency and helps ensure trust and
confidence in the fairness of the Agency’s actions. With a great appreciation for
and due recognition to the administrative burdens on the Agency, this court
implores the Agency to strive to maintain its records with the utmost attention,
care and diligence.
IV. Conclusion
McKenzie’s claim is hereby remanded to the Agency pursuant to 42 U.S.C.
§ 405(g) for further proceedings with – for reasons particular to this case – this
court’s strong encouragement to the Agency to expedite McKenzie’s proceedings
forthwith. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
IT IS FURTHER ORDERED that McKenzie’s motion for summary
judgment is DISMISSED.
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