McNeil v. Commissioner of Social Security

Filing 23

INFORMATIONAL ORDER for Plaintiff, signed by Magistrate Judge Gary S. Austin on 1/30/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARLEY McNEIL,

15-cv-1442-AWI GSA

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Plaintiff,

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v.

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COMMISSIONER OF SOCIAL
SECURITY,

INFORMATIONAL ORDER FOR
PLAINTIFF

Defendant.

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This order provides the following helpful information, and basically serves as a step-by-

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step guide, for pro se litigants. It is strongly suggested that plaintiff read and re-read this order

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and keep it readily available for future reference.

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I.

Attempt at Informal Resolution of the Case

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Pursuant to the Scheduling Order, within one hundred twenty (120) days after service of

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the complaint, defendant is required to serve a copy of the administrative record on plaintiff and

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also file the administrative record with the Court, which serves as the answer to the complaint in

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this proceeding. The Commissioner served Plaintiff with a copy of the administrative record on

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January 19, 2017. (Docs. 21 and 22).

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Once the administrative record has been filed, the parties must try to resolve the case
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informally. In this process, the parties must exchange informal briefs in the form of letters about

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the case to see if they can agree that the case should be sent back, or “remanded” to the Social

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Security Administration for a further hearing by an administrative law judge.

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In the letter brief, plaintiff must briefly set forth (1) the issues in the case, (2) the reasons

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why plaintiff thinks that plaintiff is entitled to Social Security benefits, and (3) why the decision

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to deny benefits should be remanded.

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The letter brief must be marked “Confidential Letter Brief,”should not be filed with the

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Court, and must be served on defendant within thirty (30) days from the date defendant served

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plaintiff with the administrative record, by mailing copies to all the attorneys listed on the court

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docket as representing defendant, Commissioner of Social Security, at the addresses noted on the

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court docket. Although the confidential letter brief should not be filed with the Court, Plaintiff

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shall file a notice on the Court’s docket that the letter was served on the Defendant.

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The name of the attorney or attorneys representing defendant are added to the court docket

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at the time the Court receives defendant’s response to the complaint which, again, usually

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consists of the administrative record. Sometimes the court docket lists not only an attorney at the

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office of the General Counsel of the Social Security Administration in San Francisco, California,

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but also an attorney at the United States Attorney’s Office in Fresno, California; in these

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particular cases, it will then be necessary for plaintiff to mail copies of the confidential letter brief

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to more than one attorney for defendant.

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Defendant’s confidential letter brief must be served on plaintiff no later than thirty-five

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(35) days after defendant is served with plaintiff’s confidential letter brief. The Commissioner

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shall file a notice that the letter brief was served on the Plaintiff. If the parties agree to a remand,

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then the case will go back to the Social Security Administration before any formal briefs are filed

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with the Court, and without the Court ever considering the merits of the case. The parties’

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agreement to remand the case must be set forth in writing in a document titled “Stipulation and

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Order” which must be signed and filed with the Court no later than fifteen (15) days after

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defendant served its confidential letter brief on plaintiff. See Local Rule 143(a)(1) & (b).

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The informal letter briefs exchanged by the parties are confidential in the sense that they
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are not filed with the Court. If the parties are unable to agree to a remand, the letters are not part

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of the case file and, thus, are not before the Court if and when the Court finally considers the case

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on the merits.

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II.

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Briefs
If, after exchanging confidential letter briefs, the parties are unable to agree to a remand of

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the case, then the parties must file formal briefs with the Court as directed in the Scheduling

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Order. It is only after the formal briefs are filed with the Court that the Court will consider the

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merits of the case and make a decision.

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A.

Plaintiff’s Opening Brief

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Plaintiff’s opening brief must be filed and served no later than thirty (30) days from the

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date defendant’s informal letter brief was served on plaintiff. Plaintiff must serve a copy of the

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opening brief on all the attorneys listed for defendant on the court docket of the case at the

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addresses noted on the court docket.

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Plaintiff must also file the original opening brief, together with a copy, with the Court, by
either personal delivery or via U.S. mail to:

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Office of the Clerk
United States District Court
Eastern District of California
2500 Tulare Street, Suite 1501
Fresno, CA 93721

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Plaintiff’s opening brief must contain the following:
(1)

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plaintiff contends they became disabling, and how they disabled plaintiff from
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work;
(2)

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a plain description of plaintiff’s alleged physical or emotional impairments, when

a summary of the administrative proceedings before the Social Security
Administration;

(3)

a summary of the relevant testimony at the administrative hearing;

(4)

a summary of all relevant medical evidence, including an explanation of the

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significance of clinical and laboratory findings, and the purpose and effect of

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prescribed medication and therapy;

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(5)

relevant to plaintiff’s claims;

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a recitation of the Social Security Administration=s findings and conclusions

(6)

a short, separate statement of each of plaintiff’s legal claims stated in terms of the

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insufficiency of the evidence to support a particular finding of fact or reliance on

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an erroneous legal standard; and,

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(7)

argument separately addressing each claimed error.

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All references to the administrative record and all assertions of fact must be accompanied

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by citations to the administrative record. Argument in support of each claim of error must be

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supported by citation to legal authority and explanation of the application of such authority to the

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facts of the particular case. Briefs that do not substantially comply with these requirements will

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be stricken. A document that is stricken becomes null and void and is not considered by the

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Court for any purpose.

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Plaintiff is further advised that failure to timely file an opening brief will result in
dismissal of the action.
Defendant’s Brief

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B.

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Pursuant to the Scheduling Order, defendant’s responsive brief is due filed and served on

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plaintiff within thirty (30) days from the date of service of plaintiff’s opening brief on defendant.
Plaintiff’s Reply Brief

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C.

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Plaintiff may file a reply brief, but is not required to do so, within fifteen (15) days from

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the date defendant served its responsive brief on plaintiff. Plaintiff must serve a copy of the reply

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brief on defendant by serving the United States Attorney for the Eastern District of California at

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the address in Fresno, California, noted above. Plaintiff must also file the original reply brief,

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together with a copy, with the Court at the Court’s address in Fresno, California, noted above.

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Plaintiff’s reply brief should respond to the arguments made in defendant’s responsive brief.

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Plaintiff may not raise new arguments that were not addressed in the opening brief or in the

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Commissioner’s opposition.
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III.

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In some cases, instead of serving and filing an administrative record, defendant may file a

Motion to Dismiss

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motion to dismiss the case pursuant to Fed.R.Civ.P. 12., within one hundred twenty (120) days

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from the date defendant is served with plaintiff’s complaint.

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Plaintiff may oppose a motion to dismiss by filing and serving opposition to the motion

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within fourteen (14) days from the date the motion to dismiss was served on plaintiff, and should

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be titled “Opposition to Defendant’s Motion to Dismiss.” See Local Rule 230(c).

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The Court will consider a motion to dismiss only after receiving opposition from plaintiff,
or after the time for filing opposition has passed. In ruling on a motion to dismiss the case, the

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Court may either (1) deny the motion and proceed with the case, ordering the parties to proceed to

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file the administrative record, attempt informal resolution, and file briefs; or, (2) grant the motion

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to dismiss, and dismiss all or part of the case.
The Court’s Decision on the Merits

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IV.

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The Court will consider the merits of the case only after all briefs have been filed, and

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may enter a judgment affirming, modifying, or reversing the determination of the Social Security

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Administration. The Court may or may not remand the case to the Social Security Administration

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for a further hearing.

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V.

Summary of Deadline Calculations

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See Section
I. above

Service

due 20 days after filing complaint

Administrative Record

due 120 days after service

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See Section II.
above

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See Section III.
A. above

Plaintiff=s Opening
Brief

due 95 days after administrative record lodged
with court

See Section III.
B. above

Defendant=s Brief

due 30 days after plaintiff=s opening brief filed

See Section III.
C. above

Plaintiff=s Reply Brief optional

due 15 days after defendant=s brief filed

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VI.

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Plaintiff is informed of the following:

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A.

Rules for Litigating the Action

In litigating this action, the parties must comply with the Federal Rules of Civil

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Procedure (Fed.R.Civ.P.), and the Local Rules of the United States District Court, Eastern District

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of California (“Local Rules”). A copy of the Local Rules is located on Court’s website at

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www.caed.uscourts.gov.

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Local Rule 206 is a special rule for Social Security actions. Specifically (a)(2) and (3)

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generally states that complaints shall contain the last four digits of plaintiff’s Social Security

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number only, i.e., XXX-XX-1234, and that plaintiff shall privately disclose to defendant, within

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five (5) days after a request is made to plaintiff, the full Social Security number of plaintiff.

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Therefore, plaintiff shall refrain from disclosing the entire Social Security number on any filings.

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FAILURE TO COMPLY WITH THE LOCAL RULES, FEDERAL RULES, OR A COURT

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ORDER, INCLUDING THIS ORDER, WILL BE GROUNDS FOR DISMISSAL OR OTHER

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APPROPRIATE SANCTIONS. See Local Rule 110; Fed.R.Civ.P. 41(b).

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B.

Documents intended to be filed with the Court must be mailed to the Clerk of the

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Court in Fresno, California, at the address noted above. See Local Rule 134(a). All documents

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inappropriately mailed directly to a judge's chambers will be stricken from the record. A

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document requesting a court order must be styled as a motion, not a letter. See Fed.R.Civ.P. 7.

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C.

Each document submitted for filing must include the original signature of the

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filing party or parties. Local Rule 131; Fed.R.Civ.P. 11(a). All documents submitted without the

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required signature(s) will be stricken. Each separate document must be separately stapled. See

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Local Rule 130. If a document is stapled behind another document, it will not be filed and will

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not enter the court docket.

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D.

All documents filed with the Court must be submitted with an additional legible

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copy to be conformed for the Court's use. See Local Rule 133(d)(2). A document submitted

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without an extra copy for the Court's use will be stricken. If the filing party wishes the Court to

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return a file-stamped copy, an additional copy must be provided for that purpose (i.e., an original

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and two copies, one for the Court's use and one to be returned to the filing party), together with a
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self-addressed, stamped envelope. The Court cannot provide copy or mailing service for a party,

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even for an indigent plaintiff proceeding in forma pauperis. Copies of documents from the

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Court’s file may be obtained in the Clerk’s Office at the cost of fifty ($.50) cents per page.

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E.

After any defendant has appeared in an action by filing a pleading responsive to

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the complaint (i.e., an answer or a motion to dismiss), all documents filed with the Court must

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include a proof of service stating that a copy of the document was served on the opposing party.

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See 28 U.S.C. ' 1746; Fed.R.Civ.P. 5; Local Rule 135. A document submitted without the

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required proof of service will be stricken. Where a party is represented by counsel, service on the

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party's attorney of record constitutes effective service.

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F.

A pro se party has an affirmative duty to keep the Court and opposing parties

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apprised of a current address. If plaintiff moves and fails to file a notice of change of address,

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service of court orders at plaintiff's prior address shall constitute effective notice. See Local Rule

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182(f). If mail directed to plaintiff is returned by the United States Postal Service as

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undeliverable, the Court will not attempt to re-mail it. If plaintiff’s address is not updated, in

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writing, within sixty (60) days of mail being returned, the action will be dismissed for failure to

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prosecute. See Local Rule 183(b).

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IT IS SO ORDERED.
Dated:

January 30, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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