Gaynor et al v. Social Security Administration

Filing 5

ORDER granting deft's 4 Motion to Dismiss; this action is hereby dismissed. Signed by Chief Judge J. Leon Holmes on 1/3/12. (vjt)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION MICHAEL GAYNOR, Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) Civil Action No. 5:11-CV-0311-JLH/JJV ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Before the Court is Agency’s unopposed Motion to Dismiss (Doc. 4). On May 31, 2011, in Case No. 5:11-cv-00023-BD (another case involving Plaintiff, Michael Gaynor), the Agency filed a motion for the Court to remand the case for further administrative proceedings pursuant to sentence six. See Case No. 5:11-cv-00023-BD (Doc. 6). The Commissioner pointed out that the remand was necessary because the Appeals Council dismissed Plaintiff’s request for review, believing that Plaintiff’s request was untimely filed. However, Plaintiff submitted additional evidence that demonstrated that Plaintiff filed a request for review in a timely manner. See Case No. 5:11-cv-00023-BD (Doc. 6). On June 23, 2011, Magistrate Judge Beth Deere granted the Agency’s Motion and ordered a remand of the case to the Agency for further administrative action. See Case No. No. 5:11-cv-00023-BD (Doc. 9. 10). This remand was made pursuant to sentence six of 42 U.S.C. § 405(g), and the Court retained jurisdiction to review the Agency’s final decision once the Agency completed the remand proceedings. See Case No. No. 5:11-cv00023-BD (Doc. 9, 10). Defendant informs the Court that, on October 6, 2011, the Appeals Council considered Plaintiff’s request for review anew and denied Plaintiff’s request. Defendant also informs the Court that Defendant has received a copy of the administrative record in Case No. 5:11-cv00023-BD . Thus, the Agency has completed the remand proceedings, and the Agency’s decision of August 11, 2009, is ripe for review. In addition, on December 5, 2011, Plaintiff filed a new complaint for review of the ALJ’s August 11, 2009 decision. See Case No. 5:11-cv-00311-JLH/JJV (Doc. 2). Defendant points out that since the Court has not ruled on the merits of Case No. 5:11-cv-00023-BD, the proper procedure in this situation is to reopen that case, and dismiss the complaint in the present case. Defendant will file, concurrently with this motion, a motion to reopen Case No. 5:11-cv-00023BD. Defendant has filed, concurrently with his motion to dismiss, a motion to reopen Case No. 5:11-cv-00023-BD. See Case No. 5:11-cv-00023-BD (Doc. 12). Defendant has requested 15 days after the Court reopens Case No. 5:11-cv-00023-BD to file its answer in that case. See Case No. 5:11-cv-00023-BD (Doc. 12). Because the complaint Plaintiff filed in Case No. 5:11-cv-0311-JLH/JJV involves the same final Agency decision in Case No. 5:11-cv-00023-BD, the Court orders dismissal of Plaintiff’s complaint in Case No. 5:11-cv-0311-JLH/JVV. IT IS SO ORDERED this 3rd day of January, 2012. ___________________________________ J. LEON HOLMES UNITED STATES DISTRICT JUDGE

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