Dobson v. Commissioner of Social Security

Filing 33

ORDER signed by Magistrate Judge Kendall J. Newman on 06/28/12 ORDERING the Clerk to enter Final Judgment in favor of plaintiff pursuant to sentence six of 42 U.S.C. § 405(g), and to close this case. By 08/01/12, the Commissioner shall file a brief writing with the Court that explains why he did not file the ALJ's fully favorable post-remand decision with the Court, as required by 42 U.S.C. § 405(g). (Benson, A.)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

DAVID R. DOBSON,

11
12
13

Plaintiff,

No. 2:09-cv-01460 KJN

v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,

14
Defendant.
15
16

ORDER
/

On November 5, 2010, the court granted plaintiff’s motion to remand this case to

17

the Social Security Administration pursuant to sentence six of 42 U.S.C. § 405(g), for further

18

proceedings to determine whether, in light of new and material evidence, plaintiff was disabled

19

on or before May 22, 2008. (Order, Nov. 5, 2010, at 8, Dkt. No. 31.) The court did not enter a

20

final judgment at that time. See Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991) (stating that

21

“[u]nder sentence six, the district court may remand in light of additional evidence without

22

making any substantive ruling as to the correctness of the Secretary’s decision” if the claimant

23

shows good cause for not presenting the evidence earlier); see also Shalala v. Schaefer, 509 U.S.

24

292, 297 (1993) (“Immediate entry of judgment (as opposed to entry of judgment after

25

postremand agency proceedings have been completed and their results filed with the court) is in

26

fact the principal feature that distinguishes a sentence-four remand from a sentence-six
1

1
2

remand.”).
On April 16, 2012, plaintiff filed a “Request for Entry of Judgment” that

3

represents that the Commissioner of Social Security issued a “fully favorable” decision on June

4

21, 2011, finding plaintiff disabled since August 1, 2005. (Req. for Entry of J. at 1 & Ex. 1.)

5

Plaintiff requests that the court: (1) receive and take judicial notice of the fully favorable award;

6

and (2) enter judgment in plaintiff’s favor on the basis of the fully favorable award. (Id. at 1.)

7

First, the court takes judicial notice of the Commissioner’s fully favorable

8

decision dated June 21, 2011, and filed with plaintiff’s request as Exhibit 1 (Dkt. No. 32, Doc.

9

No. 32-1). The court may, and does, take judicial notice of the Administrative Law Judge’s

10

(“ALJ”) order, which is an agency order. See, e.g., Reyn’s Pasta Bella, LLC v. Visa USA, Inc.,

11

442 F.3d 741, 746 n.6 (9th Cir. 2006); Papai v. Harbor Tug & Barge Co., 67 F.3d 203, 207 n.5

12

(9th Cir. 1995), rev’d on other grounds, 520 U.S. 548 (1997).

13

Second, the court directs the Clerk of Court to enter final judgment in favor of

14

plaintiff consistent with 42 U.S.C. § 405(g), and to close this case. Notwithstanding the closure

15

of this case, the court requires the Commissioner to file a brief writing explaining why the

16

Commissioner did not file the ALJ’s June 21, 2011 post-remand decision with the court, as

17

required by 42 U.S.C. § 405(g). See 42 U.S.C. § 405(g), sentence six (providing that “the

18

Commissioner of Social Security shall, after the case is remanded, and after hearing such

19

additional evidence if so ordered, modify or affirm the Commissioner’s findings of fact or the

20

Commissioner’s decision, or both, and shall file with the court any such additional and modified

21

findings of fact and decision.”) (emphasis added); see also Melkonyan, 501 U.S. at 102 (noting

22

that where the district court remands a case under sentence six, “the Secretary must return to

23

District Court, at which time the court will enter a final judgment”). Here, plaintiff, not the

24

Commissioner, filed the ALJ’s post-remand decision with the court. The court is curious why

25

the Commissioner took no action after issuance of the June 21, 2011 decision, and has not

26

responded to plaintiff’s request for entry of judgment.
2

1

Accordingly, IT IS HEREBY ORDERED that:

2

1.

3
4

The Clerk of Court is directed to enter final judgment in favor of plaintiff

pursuant to sentence six of 42 U.S.C. § 405(g), and to close this case.
2.

On or before August 1, 2012, the Commissioner shall file a brief writing

5

with the court that explains why he did not file the ALJ’s fully favorable post-remand decision

6

with the court, as required by 42 U.S.C. § 405(g).

7
8

IT IS SO ORDERED.
DATED: June 28, 2012

9
10
11

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3