   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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
          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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                                  No. 11-10359

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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