Mishal v. Commissioner of Social Security

Filing 25

STIPULATION and ORDER to REOPEN CASE; ORDERED to VACATE February 7, 2012 Order, signed by Magistrate Judge Barbara A. McAuliffe on 03/18/2013.(Case Management Deadline: 4/18/2013) (Case reopened)(Martin-Gill, S)

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BENJAMIN B. WAGNER
United States Attorney
GRACE M. KIM, SBN IL 6203390
Regional Chief Counsel, Region IX
Social Security Administration
ANNABELLE J. YANG, CA SBN 276380
Special Assistant United States Attorney
160 Spear Street, Suite 800
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Attorneys for Defendant

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRESNO DIVISION
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TAMMY L. MISHAL,

)
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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting )
Commissioner of Social Security,* )
)
Defendant.
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____________________________)

No. 1:11-cv-00985-BAM
STIPULATION AND ORDER TO
REOPEN CASE

IT IS HEREBY STIPULATED by the parties, through their undersigned attorneys, and with
the approval of the Court, that this case shall be reopened.

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On February 7, 2012, the Court remanded this case for further administrative proceedings,

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and retained jurisdiction pursuant to sentence six of 42 U.S.C. § 405(g). The parties stipulated to

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remand this case so that Plaintiff could have a new hearing before the administrative law judge

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(ALJ) and receive a new decision, as portions of her January 2009 hearing were inaudible. On

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August 28, 2012, the ALJ issued a partially favorable decision. This became the final decision of the

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Commissioner when the Appeals Council declined to assume jurisdiction of the case within 60 days

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* Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should be substituted for Michael J.
Astrue as the defendant in this suit. No further action need to be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

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of the ALJ’s decision.
Now that the administrative proceedings have concluded, reopening is necessary. In a

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sentence-six remand case, the Court retains jurisdiction following the remand. See Melkonyan v.

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Sullivan, 501 U.S. 89, 98; 111 S.Ct. 2157; 115 L.Ed. 78 (1991) (District Court retains jurisdiction

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over Social Security cases remanded under 42 U.S.C. § 405(g), sentence six, and where the final

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administrative decision is favorable to one party or the other, the Commissioner is to return to Court

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following completion of the administrative proceedings on remand so that the Court may enter a

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final judgment or, as in this case, a dismissal); see also Shalala v. Schaefer, 509 U.S. 292, 298-300;

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113 S.Ct. 2625; 125 L.Ed.2d 239 (1993). It is therefore appropriate to reopen this case. Upon

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reopening, Defendant will file her answer and certified administrative record within 30 days of this

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Court’s order.

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Dated: March 14, 2013

By:
/s/ Laura E. Krank*
LAURA E. KRANK
*As authorized by email on March 11, 2013
Attorney for Plaintiff

Dated: March 14, 2013

BENJAMIN B. WAGNER
United States Attorney

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/s/ Annabelle J. Yang
ANNABELLE J. YANG
Special Assistant U.S. Attorney

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Attorneys for Defendant

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By:

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ORDER

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Based on the above, the parties’ stipulation is GRANTED. The Court’s February 7, 2012, order

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remanding this action is VACATED and the Clerk of the Court is ORDERED to REOPEN the action.

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The Commissioner shall file an administrative record and an answer on or before April 18, 2013.

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IT IS SO ORDERED.
Dated:
10c20k

March 18, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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