                                                        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this opinion should not be published and is not precedent except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
