Gavina v. Social Security Administration Commissioner

Filing 9

ORDER reversing and remanding this case to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. 405(g). Signed by Honorable James R. Marschewski on July 15, 2011. (sh)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION JOSE LUIS GAVINA V. PLAINTIFF NO. 2:10-CV-02101 MICHAEL J. ASTRUE, Commissioner Social Security Administration DEFENDANT ORDER For reasons stated in a memorandum opinion of this date, I conclude that the decision of the Commissioner denying benefits to the plaintiff is not supported by substantial evidence and should be reversed and remanded for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). The parties have sixty days from entry of the judgment on the docket in which to appeal. If plaintiff wishes to request an award of attorney’s fees and cost under the Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412, an application may be filed up until 30 days after the judgment becomes "not appealable" i.e., 30 days after the 60-day time for appeal has ended. See Shalala v. Schaefer, 509 U.S. 292, 296, 113 S.Ct. 2625 (1993); 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G). The court, however, will not grant an application for attorney's fees absent a showing of good cause for the failure to present the letter from Dr. Capocelli dated November 11, 2009 prior to the hearing before the ALJ on May 12, 2009. IT IS SO ORDERED this July 15, 2011. Page -1- /s/ J. Marschewski HONORABLE JAMES R. MARSCHEWSKI Chief United States Magistrate Judge Page -2-

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