ADAMS v. MASSANARI, (S.D.N.Y. 2001)

WHITMAN KNAPP, SENIOR UNITED STATES DISTRICT JUDGE.

Plaintiff Sandra Adams ("plaintiff") brings this action pro se on behalf of her son, plaintiff Darryl Smith, seeking review of the decision of the Commissioner of Social Security (the "Commissioner") denying him child's Supplemental Security Income ("SSI") disability benefits under Title XVI of the Social Security Act (the "Act"). Currently before us is a motion of defendant, acting Commissioner of Social Security, Larry G. Massanari ("defendant" or "Commisioner") to remand the case for further administrative proceedings pursuant to 42 U.S.C. § 405(g).

Larry G. Massanari is substituted for Kenneth S. Apfel as the Commissioner of Social Security named in the caption pursuant to Rule 25 (d)(1) of the Federal Rules of Civil Procedure.

PROCEDURAL HISTORY

Plaintiff applied for SSI child's disability benefits on October 12, 1995. The application was denied both initially and again upon reconsideration. Plaintiff then requested and was granted a hearing before an Administrative Law Judge. A hearing was held on July 12, 1997 and on July 12, 1997, after considering the case de novo, Administrative Law Judge Jonathan Jacobs issued a decision denying plaintiff's claim. On June 18, 1998 the Appeals Council denied plaintiff's request for review, finalizing the Commissioner's decision. Plaintiff then commenced an action in the United States District Court for the Southern District of New York, where the case was remanded to the Commissioner for a de novo hearing and a new decision.

On October 19, 1999 Administrative Law Judge Jacobs held a hearing on the remand, once again considering the case de novo. On November 18, 1999 he issued a decision denying plaintiff's claim. On June 21, 2000 the Appeals Council denied plaintiff's request for review, finalizing the Commissioner's decision.

Plaintiff filed the instant action on August 23, 2000 seeking review of the Commissioner's decision. On February 1, 200, prior to filing an answer, the Social Security Administration offered to remand this case for further administrative proceedings. Plaintiff declined that offer.

DISCUSSION

The sixth sentence of 42 U.S.C. § 405(g) reads in pertinent part:

The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files . . . [his] answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security. (emphasis added)

A court may remand a case to the Commissioner under the sixth sentence of § 42 U.S.C. § 405 (g) without making any substantive ruling on the merits of the case. Melkonyan v. Sullivan (1991) 501 U.S. 89, 99-100.

Defendant states, uncontested, that the record upon which Administrative Law Judge Jacobs relied on in issuing his November 18, 1999 decision contained a critically vague IQ test result, which, was not current and thus invalid. In addition the record lacked essential school records.

For the aforementioned reasons we remand this case to the Social Security Administration for further proceedings. Rosa v. Callahan (2d Cir. 1999) 168 F.3d 72, 82-83 (remanding where gaps exist in the administrative record).

As plaintiff is pro se we want to make it clear that it is not within our power to simply direct the Commissioner to act in accordance with the letter dated July 6, 1998 she received from the Social Security Administration, which states that Darryl Smith is entitled to monthly payments as a disabled child, since the Commissioner believes that this letter was sent in error.

CONCLUSION

For the aforementioned reasons, this case is remanded to the Social Security Administration. We direct that the record be clarified and completed to enable the Commissioner to conduct further administrative proceedings.

SO ORDERED.