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Cummings v. Astrue

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


September 13, 2009

DIANA CUMMINGS, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER, SOCIAL SECURITY, DEFENDANT,

The opinion of the court was delivered by: Honorable Gregory G. Hollows United States Magistrate Judge

DEFENDANT'S REQUEST FOR ENTRY OF ORDER AND JUDGMENT

Defendant hereby requests that this Court enter an order and judgment in favor of the Plaintiff affirming the September 24, 2004, post-remand, final decision of the Commissioner of Social Security pursuant to Rule 58 of the Federal Rules of Civil Procedure. A copy of Plaintiff's favorable decision on remand is attached hereto.

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 MARK A. WIN Special Assistant U.S. Attorney Attorneys for Defendant

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.


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