evidence"); Bady v. Sullivan, 787 F. Supp. 809, 817 (N.D. Ill. 1992) (failure to develop full and fair record "has been consistently held to constitute good cause"); Rivera Sanchez v. Secretary of HHS, 786 F. Supp. 147, 149 (D.P.R. 1992) (need to further develop evidence of injury constitutes good cause).
Contrary to Defendant's assertion, Jordan v. Sullivan, 785 F. Supp. 47 (S.D.N.Y. 1992), is at the least inapposite. In Jordan, the court "vacated the decision below based on the admitted legal error of the ALJ." Id. at 49. The court stated that it made a substantive decision to modify or reverse the decision of the Secretary, and consequently characterized the remand as properly falling within sentence four. Despite statements made by the court in Jordan, the Supreme Court, in Melkonyan, had noted that remands pursuant to sentence four follow a "substantive ruling" by a district court, instead of "merely returning the case to the agency for disposition, noting that both parties agreed to this course." Melkonyan, 111 S. Ct. at 2163. In Tucunango v. Sullivan, 1992 U.S. Dist. LEXIS 9733 at *7 (S.D.N.Y. July 1, 1992), the court rejected the Secretary's position that "a mutually consented to remand, should nonetheless make a 'substantive ruling' so that the Secretary may receive the benefits of a sentence four remand." The court declined to classify the Secretary's pre-answer motion for remand as one made pursuant to sentence four. Id. at *10; see also Martinez v. Sullivan, No. 91-2247, slip op. at 2 (S.D.N.Y. Nov. 8, 1991) ("based on our review of . . . Melkonyan. . . we find that a remand pursuant to sentence six . . . is the appropriate procedure for this action"). The Court agrees with the Tucunango court's conclusions. In the instant case, the requested remand returns the matter to the Secretary for application of the "treating physician rule." The remand in no way compels the Court to make a substantive ruling.
In addition, Fernandez correctly observes that a ruling that Defendant's admitted errors are in fact errors would render the Court's ruling substantive in nature, transforming the Court's order for remand into a sentence four remand. In effect, the Secretary's position is an attempt to bootstrap this Court's ruling into a sentence four remand. The Court declines to adopt the Secretary's view because such an application of section 405(g) is antithetical to Supreme Court precedent.
Accordingly, the Court remands this matter to the Secretary for further administrative proceedings pursuant to sentence six of section 405(g).
For the foregoing reasons, Defendant's motion for remand is granted pursuant to sentence six of 42 U.S.C. § 405(g). The Court retains jurisdiction over this action.
The Clerk is directed to place this action upon the Suspense Docket pending further order of the Court.
LAWRENCE M. McKENNA
Dated: New York, New York
October 22, 1992