Cummings v. Social Security

Filing 18

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/13/09: Judgment is hereby entered in favor of Plaintiff, affirming the September 24, 2004 post-remand final decision of the Commissioner of Social Security. (Kaminski, H)

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LAWRENCE G. BROWN United States Attorney LUCILLE GONZALES MEIS Regional Chief Counsel, Region IX, Social Security Administration MARK A. WIN Special Assistant United States Attorney 333 Market Street, Suite 1500 San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

DIANA CUMMINGS,

) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE,1/ ) Commissioner, ) Social Security, ) ) Defendant, ) ) ______________________________)

CIVIL NO. 2:03-CV-01773-GGH DEFENDANT'S REQUEST FOR ENTRY OF ORDER AND JUDGMENT

Defendant hereby requests that this Court enter an order and judgment in favor of the 21 Plaintiff affirming the September 24, 2004, post-remand, final decision of the Commissioner of 22 Social Security pursuant to Rule 58 of the Federal Rules of Civil Procedure. A copy of 23 Plaintiff's favorable decision on remand is attached hereto. 24 /// 25 26 27 28 On February 12, 2007, Michael J. Astrue became the Commissioner of Social Security. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Michael J. Astrue should, therefore, be substituted for Commissioner Jo Anne B. Barnhart as the defendant in this suit. No further action need 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).
1/

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On March 22, 2004, this Court entered an order remanding this case pursuant to 42 U.S.C. § 405(g), sentence six in order to locate the claim file and hearing tape. See Clerk's Record 15. In Melkonyan v. Sullivan, 501 U.S. 89 (1991), the Supreme Court held that a district court may retain jurisdiction over Social Security cases remanded under 42 U.S.C. § 405(g), sentence six, and that the Commissioner is to return to court following completion of the administrative proceedings on remand and file the new decision with the court, which can then enter an order and "final judgment," thus terminating the matter. See, also, Shalala v. Schaefer, 509 U.S. 292 (1993). Therefore, Defendant requests that and order and final judgment be entered in this case. Respectfully submitted, Dated: August 18, 2009________ LAWRENCE G. BROWN United States Attorney LUCILLE GONZALES MEIS Regional Chief Counsel, Region IX Social Security Administration /s/ Mark A. Win MARK A. WIN Special Assistant U.S. Attorney Attorneys for Defendant

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1 IN THE UNITED STATES DISTRICT COURT FOR THE 2 EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cummings.judg Date: September 13, 2009 /s/ Gregory G. Hollows ______________________________ THE HONORABLE GREGORY G. HOLLOWS United States Magistrate Judge DIANA CUMMINGS, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social ) Security, ) ) Defendant, ) ) ____________________________________) CIVIL NO. 2:03-CV-01773-GGH

ORDER

Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act for judicial review of a final decision of the Commissioner of Social Security, denying his application for benefits. On March 22, 2004, this Court entered an order remanding this case pursuant to 42 U.S.C. § 405(g), sentence six in order to locate the claim file and hearing tape. On remand, in a decision dated September 24, 2004, the Commissioner issued a fully favorable decision awarding Plaintiff benefits. This is the second time within a month that the Commissioner has purported to electronically file an exhibit for the court's review, but the exhibit is unreadable. The Commissioner shall confirm that the exhibits electronically filed are filed such that they are readable. The Court orders as follows: IT IS ORDERED that Judgment is hereby entered in favor of Plaintiff, affirming the September 24, 2004 post-remand final decision of the Commissioner of Social Security.