Hernandez v. Commissioner of Social Security
Informational Order, signed by Magistrate Judge Sheila K. Oberto on 3/16/2015. (Rosales, O)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 1:15-cv-00262-SKO
Plaintiff is proceeding pro se in an action seeking judicial review of an administrative
21 decision of the Commissioner of Social Security that denied, in whole or in part, Plaintiff's claim
22 for benefits under the Social Security Act.
This order provides the following helpful information, and basically serves as a step-by-
24 step guide, for pro se litigants. It is strongly suggested that Plaintiff read and re-read this order
25 and keep it readily available for future reference.
As is outlined in the Scheduling Order issued in this case, except when other provisions are
Service of the Complaint
28 made pursuant to an application to proceed in forma pauperis, Plaintiff shall serve a copy of the
1 (1) summons, (2) complaint, (3) notice of availability of a Magistrate Judge and the form of
2 consent/decline to jurisdiction of the United States Magistrate Judge (see Local Rule 305(a)), and
3 (4) the Scheduling Order, within twenty (20) days of Plaintiff’s filing the complaint.
If Plaintiff is proceeding in forma pauperis, the United States Marshal usually serves the
5 complaint. However, if Plaintiff is not proceeding in forma pauperis, then Plaintiff or legal
6 counsel is responsible for service and then filing a proof of service without delay. See Local Rule
Lawsuits for review of administrative decisions made by the Commissioner of Social
9 Security are prosecuted against the Commissioner of Social Security. Federal Rule of Civil
10 Procedure 4(i)(2) and (3) provide, in substance, that to serve the Commissioner in his official
11 capacity, the party must serve (1) the United States, and (2) the Commissioner.
To serve the United States, a party must:
Deliver a copy of the summons and complaint to the United States Attorney for the
14 district where the action is brought, or to an Assistant United States Attorney or clerical employee
15 whom the United States Attorney designates in a writing filed with the Court; or send a copy of
16 the summons and complaint, by certified mail only, to the Civil Process Clerk at the United States
17 Attorney's Office; and
Send a copy of the summons and complaint, by certified mail only, to the Attorney
19 General of the United States in Washington, D.C.; and
Send a copy of the summons and complaint, by certified mail only, to the
21 Commissioner (the officer of the United States whose order is challenged by the lawsuit) in San
22 Francisco, California. Fed. R. Civ. P. 4(i)(1)-(3).
Initial service of process is thus sufficient if Plaintiff serves, by certified mail only, copies
24 of the summons and complaint on:
Office of the United States Attorney
Civil Process Clerk
2500 Tulare Street, Suite 4401
Fresno, CA 93721
Office of the Attorney General of the United States
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
Office of the General Counsel
Social Security Administration
160 Spear Street, Suite 800
San Francisco, CA 94105
After service upon these entities, a proof of service must be filed with the Court without
7 delay pursuant to Local Rule 210. If Plaintiff is proceeding in forma pauperis, the United States
8 Marshal generally completes the proof of service and files it with the Court. If Plaintiff is not
9 proceeding in forma pauperis, however, it is Plaintiff's duty to promptly file a proof of service
10 with the Court.
Pursuant to the Scheduling Order, within one hundred twenty (120) days after service of
Attempt at Informal Resolution of the Case
13 the complaint, Defendant is required to serve a copy of the administrative record on Plaintiff and
14 file the administrative record with the Court, which serves as the answer to the complaint in this
Once the administrative record has been filed, the parties must try to resolve the case
17 informally. In this process, the parties must exchange informal briefs in the form of letters about
18 the case to see if they can agree that the case should be sent back, or "remanded," to the Social
19 Security Administration for a further hearing by an administrative law judge.
In the letter brief, Plaintiff must briefly set forth (1) the issues in the case, (2) the reasons
21 why Plaintiff believes that Plaintiff is entitled to Social Security benefits, and (3) why the decision
22 to deny benefits should be remanded.
The letter brief must be marked "Confidential Letter Brief," should not be filed with the
24 Court, and must be served on Defendant within thirty (30) days from the date Defendant served
25 Plaintiff with the administrative record, by mailing copies to all the attorneys listed on the court
26 docket as representing Defendant, Commissioner of Social Security, at the addresses noted on the
27 court docket. A certificate of service of the Confidential Letter Brief shall be filed with the Court,
28 but the Confidential Letter Brief itself shall not be filed with the Court.
The name(s) of the attorney or attorneys representing Defendant are added to the court
2 docket at the time the Court receives Defendant's response to the complaint which, again, usually
3 consists of the administrative record. Sometimes the court docket lists not only an attorney at the
4 office of the General Counsel of the Social Security Administration in San Francisco, California,
5 but also an attorney at the United States Attorney's Office in Fresno, California.
6 particular cases, it will then be necessary for Plaintiff to mail copies of the Confidential Letter
7 Brief to more than one attorney for Defendant.
Defendant's Confidential Letter Brief must be served on Plaintiff no later than thirty-five
9 (35) days after Defendant is served with Plaintiff's confidential letter brief. A certificate of service
10 of Defendant’s Confidential Letter Brief shall be filed with the Court.
If the parties agree to a remand, the case will go back to the Social Security Administration
12 before any formal briefs are filed with the Court, and without the Court ever considering the
13 merits of the case. The parties' agreement to remand the case must be set forth in writing in the
14 document titled "Stipulation and Order," which must be signed and filed with the Court no later
15 than fifteen (15) days after Defendant served its Confidential Letter Brief on Plaintiff. See Local
16 Rule 143(a)(1), (b).
The informal letter briefs exchanged by the parties are confidential in the sense that they
18 are not filed with the Court. If the parties are unable to agree to a remand, the letters are not part
19 of the case file and, thus, are not before the Court if and when the Court finally considers the case
20 on the merits.
If, after exchanging the Confidential Letter Briefs, the parties are unable to agree to a
23 remand of the case, the parties must file formal briefs with the Court as directed in the Scheduling
24 Order. It is only after the formal briefs are filed with the Court that the Court will consider the
25 merits of the case and make a decision.
Plaintiff's Opening Brief
Plaintiff's opening brief must be filed and served no later than thirty (30) days from the
28 date Defendant's informal letter brief was served on Plaintiff. Plaintiff must serve a copy of the
1 opening brief on all the attorneys listed for Defendant on the court docket of the case at the
2 addresses noted on the court docket.
Plaintiff must also file the original opening brief, together with a copy, with the Court, by
4 either personal delivery or via U.S. mail to:
Office of the Clerk
United States District Court
Eastern District of California
2500 Tulare Street, Suite 1501
Fresno, California 93721
Plaintiff's opening brief must contain the following:
A plain description of Plaintiff's alleged physical or emotional impairments, when
10 Plaintiff contends they became disabling, and how they disabled Plaintiff from work;
A summary of the administrative proceedings before the Social Security
A summary of the relevant testimony at the administrative hearing;
A summary of all relevant medical evidence, including an explanation of the
15 significance of clinical and laboratory findings, and the purpose and effect of prescribed
16 medication and therapy;
A recitation of the Social Security Administration's findings and conclusions
18 relevant to Plaintiff's claims;
A short, separate statement of each of Plaintiff's legal claims stated in terms of the
20 insufficiency of the evidence to support a particular finding of fact or reliance on an erroneous
21 legal standard; and
Any argument separately addressing each claimed error.
All references to the administrative record and all assertions of fact must be accompanied
24 by citations to the administrative record. Any argument in support of each claim of error must be
25 supported by citation to legal authority and an explanation of the application of such authority to
26 the facts of the particular case. Briefs that do not substantially comply with these requirements
27 will be stricken. A document that is stricken becomes null and void and is not considered by the
28 Court for any purpose.
Plaintiff is further advised that failure to timely file an opening brief will result in dismissal
2 of the action.
Pursuant to the Scheduling Order, defendant's responsive brief must be filed and served on
5 Plaintiff within thirty (30) days from the date of service of Plaintiff's opening brief on Defendant.
Plaintiff's Reply Brief
Plaintiff may, but is not required to file a reply brief within fifteen (15) days from the date
8 defendant served its responsive brief on Plaintiff. Plaintiff must serve a copy of the reply brief on
9 Defendant by serving the United States Attorney for the Eastern District of California at the
10 address in Fresno, California, as noted above. Plaintiff must also file the original reply brief,
11 together with a copy, with the Court at the Court's address in Fresno, California, as noted above.
Plaintiff's reply brief should respond to the arguments made in Defendant's responsive
In some cases, instead of serving and filing an administrative record, Defendant may file a
Motion to Dismiss
16 motion to dismiss the case pursuant to Federal Rule of Civil Procedure 12, within one hundred
17 twenty (120) days from the date defendant is served with Plaintiff's complaint.
Plaintiff may oppose a motion to dismiss by filing and serving an opposition to the motion
19 within fourteen (14) days from the date the motion to dismiss was served on Plaintiff, and should
20 be titled "Opposition to Defendant's Motion to Dismiss." See Local Rule 230(c).
The Court will consider a motion to dismiss only after receiving opposition from Plaintiff,
22 or after the time for filing opposition has passed. In ruling on a motion to dismiss the case, the
23 Court may either (1) deny the motion and proceed with the case, ordering the parties to proceed to
24 file the administrative record, attempt informal resolution, and file briefs; or (2) grant the motion
25 to dismiss, and dismiss all or part of the case.
The Court will consider the merits of the 6
case only after all briefs have been filed, and may
The Court's Decision on the Merits
28 enter judgment affirming, modifying, or reversing the determination of the Social Security
1 Administration. The Court may or may not remand the case to the Social Security Administration
2 for a further hearing.
General Summary of Deadline Calculations
Service of Complaint
20 days after filing complaint See Section (I) above
Plaintiff's Opening Brief
120 days after service of
95 days after administrative
record is lodged with Court
30 days after Plaintiff's
opening brief is filed
15 days after Defendant's
brief is filed
Plaintiff's Reply Brief
See Section (II) above
See Section (III)(A) above
See Section III(B) above
See Section III(C) above
Rules for Litigating this Action
Plaintiff is informed of the following:
In litigating this action, the parties must comply with the Federal Rules of
Civil Procedure and the Local Rules of the United States District Court, Eastern District of
California ("Local Rules"). A copy of the Local Rules may be obtained in the Clerk's Office at no
Local Rule 206 is a special rule for social security actions. Specifically, sections (a)(1) and
(2) of Rule 206 generally state that complaints shall contain the last four digits of Plaintiff's social
security number only, i.e., XXX-XX-1234, and that Plaintiff shall privately disclose to Defendant,
within five (5) days after a request is made to Plaintiff, the full social security number of Plaintiff.
Therefore, Plaintiff shall refrain from disclosing the entire social security number on any filings.
FAILURE TO COMPLY WITH THE LOCAL RULES, FEDERAL RULES, OR A
COURT ORDER, INCLUDING THIS ORDER, WILL BE GROUNDS FOR DISMISSAL
OR OTHER APPROPRIATE SANCTIONS. See Local Rule 110; Fed. R. Civ. P. 41(b).
Documents intended to be filed with the Court must be mailed to the Clerk
of the Court in Fresno, California, at the address noted above. See Local Rule 134(a). All
1 documents inappropriately mailed directly to a judge's chambers will be stricken from the record.
2 A document requesting a court order must be styled as a motion, not as a letter. See Fed. R. Civ.
3 P. 7.
Each separate document must be separately stapled. See Local Rule 130. If
5 a document is stapled behind another document, it will not be filed and will not enter the court
All documents filed with the Court must be submitted with an additional
8 legible copy to be conformed for the Court's use. See Local Rule 133(d)(2). A document
9 submitted without an extra copy for the Court's use will be stricken. If the filing party wishes the
10 Court to return a file-stamped copy, an additional copy must be provided for that purpose (i.e., an
11 original and two copies, one for the Court's use and one to be returned to the filing party), together
12 with a self-addressed stamped envelope. The Court cannot provide copy or mailing service for a
13 party, even for an indigent plaintiff proceeding in forma pauperis. Copies of documents from the
14 Court's file may be obtained in the Clerk's Office at the cost of fifty ($.50) cents per page.
After any defendant has appeared in an action by filing a pleading
16 responsive to the complaint (i.e., an answer or a motion to dismiss), all documents filed with the
17 Court must include a proof of service stating that a copy of the document was served on the
18 opposing party. See 28 U.S.C. § 1746; Fed. R. Civ. P. 5; Local Rule 135. A document submitted
19 without the required proof of service will be stricken. Where a party is represented by counsel,
20 service on the party's attorney of record constitutes effective service.
A pro se party has an affirmative duty to keep the Court and opposing
22 parties apprised of a current address. If Plaintiff moves and fails to file a notice of change of
23 address, service of court orders at Plaintiff's prior address shall constitute effective notice. See
24 Local Rule 182(f). If mail directed to Plaintiff is returned by the United States Postal Service as
25 undeliverable, the Court will not attempt to re-mail it. If Plaintiff's address is not updated, in
1 writing, within sixty (60) days of mail being returned, the action will be dismissed for failure to
2 prosecute. See Local Rule 183(b).
IT IS SO ORDERED.
March 16, 2015
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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