(SS) Ewen v. Commissioner of Social Security

Filing 15

ORDER Discharging Order to Show Cause and Modifying Scheduling Order signed by Magistrate Judge Jeremy D. Peterson on 10/09/2019. Thirty-Day Deadline. (Flores, E)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8
9

LISA MARIE EWEN,
Plaintiff,

10
11
12
13
14
15

Case No. 1:18-cv-01275-LJO-JDP
ORDER DISCHARGING ORDER TO
SHOW CAUSE AND MODIFYING
SCHEDULING ORDER

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Plaintiff Lisa Marie Ewen proceeds in this Social Security appeal unrepresented by

16

counsel. On August 30, 2019, I issued an order to show cause why the case should not be

17

dismissed for failure to prosecute. Plaintiff had not complied with the scheduling order and

18

missed the deadline to file the proof of service for her letter brief. ECF No. 13. On September

19

25, 2019, plaintiff filed a statement with the court using the assistance of a non-lawyer, Ms.

20

Underwood. ECF No. 14.

21

Local Rule 183(a) prohibits any person appearing without counsel from having another

22

person appear on her behalf. Plaintiff may not delegate her duty to appear on her own behalf

23

“to any other individual.” Local R. 183(a). A plaintiff must either obtain counsel or appear on

24

her own behalf. See id. Therefore, neither Ms. Underwood nor any other non-lawyer may file

25

documents on behalf of plaintiff.

26
27

Given plaintiff’s unrepresented status, and the fact that plaintiff’s filing included her own
signed statement, I will consider her letter to the court. See ECF No. 14 at 3. I find good

28

1

1

cause for plaintiff’s failure to prosecute and hereby discharge my order to show cause.
To help plaintiff further, I provide clarification on the process before this court below.

2
3

Additionally, I extend the briefing schedule to allow the parties more time to discuss informal

4

resolution before filing formal briefs with the court.

5

I.

6
7

Discussion
A. Opportunity for Informal Resolution
Under to the scheduling order, within one hundred twenty (120) days after service of the

8

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

9

file the administrative record with the court, which serves as the answer to the complaint in this

10
11

proceeding.
Once the administrative record has been filed, the parties must try to resolve the case

12

informally. In this process, the parties must exchange informal briefs in the form of letters

13

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

14

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

15

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

16

why plaintiff thinks that plaintiff is disabled, and (3) why the decision that plaintiff was not

17

disabled should be remanded.

18

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

19

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

20

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

21

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

22

the court docket.

23
24
25

Defendant’s confidential letter brief must be served on plaintiff no later than thirty-five
(35) days after defendant is served with plaintiff’s confidential letter brief.
If the parties agree to a remand, then the case will go back to the Social Security

26

Administration before any formal briefs are filed with the court, and without the court ever

27

considering the merits of the case. The parties’ agreement to remand the case must be set forth

28

in writing in a document titled “Stipulation and Order,” which must be signed and filed with

2

`

1

the court no later than fifteen (15) days after defendant served its confidential letter brief on

2

plaintiff. See Local Rule 143(a)(1) & (b).

3

The informal letter briefs exchanged by the parties are confidential in the sense that they

4

are not filed with the court. If the parties are unable to agree to a remand, the letters are not

5

part of the case file and, thus, are not before the court if the court finally considers the case on

6

the merits.

7

It appears from the docket that the parties have not served each other with letter briefs.

8

Therefore, I will give plaintiff thirty days to serve defendant with her letter brief and file a

9

proof of service with the court. The contact information for defendant is listed here for

10
11
12
13
14
15
16
17
18

plaintiff’s convenience:
Sharon Lahey
U.S. Social Security Administration
160 Spear Street
Suite 800
San Francisco, CA 94105
415-877-8963
Email: [e-mail]
Jeffrey James Lodge
United States Attorney
2500 Tulare Street
Suite 4401
Fresno, CA 93721
559-497-4019
Fax: [phone]
Email: [e-mail]

19

B. Instructions for the Remainder of the Case

20

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

21

of the case, then the parties must file formal briefs with the court as directed in the scheduling

22

order. It is only after the formal briefs are filed with the court that the court will consider the

23

merits of the case and make a decision.

24

Plaintiff’s opening brief must be filed and served no later than thirty days after service

25

of defendant’s informal letter brief. Plaintiff must serve a copy of the opening brief on all the

26

attorneys listed for defendant on the court docket of the case at the addresses noted on the court

27

docket. Plaintiff must also file the original opening brief, together with a copy, with the court,

28

by either personal delivery or via U.S. mail.

3

`

1

Plaintiff’s opening brief must contain the following:

2

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

3
4
5

plaintiff contends they became disabling, and how they disabled plaintiff from work;
(2) a summary of the administrative proceedings before the Social Security
Administration;

6

(3) a summary of the relevant testimony at the administrative hearing;

7

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

8

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

9

medication and therapy;

10
11
12

(5) a recitation of the Social Security Administration’s findings and conclusions
relevant to plaintiff’s claims;
(6) a short, separate statement of each of plaintiff’s legal claims stated in terms of the

13

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

14

legal standard; and,

15

(7) argument separately addressing each claimed error.

16

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

17

accompanied by citations to the administrative record. Argument in support of each claim of

18

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

19

authority to the facts of the particular case. Briefs that do not substantially comply with

20

these requirements will be stricken. A document that is stricken becomes null and void and

21

is not considered by the court for any purpose. Plaintiff is further advised that failure to timely

22

file an opening brief will result in dismissal of the action.

23

Pursuant to the scheduling order, defendant’s responsive brief is due filed and served

24

on plaintiff within thirty days from the date of service of plaintiff’s opening brief on defendant.

25

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

26

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

27

brief on defendant. Plaintiff must also file the original reply brief, together with a copy, with

28

4

`

1

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

2

responsive brief.
After all briefs have been filed, we may schedule this case for telephonic oral

3
4

arguments before the Magistrate Judge. During a telephonic hearing, the parties should be

5

prepared to address all arguments raised in the briefs with citations to the record. The court

6

will consider the merits of the case only after all briefs have been filed and oral arguments, if

7

scheduled, have been conducted. The court may enter a judgment affirming, modifying, or

8

reversing the determination of the Social Security Administration. The court may or may not

9

remand the case to the Social Security Administration for a further hearing.

10

II.

Order

11

a. The order to show cause is discharged.

12

b. The deadline for plaintiff to serve her initial letter brief on defendant and file a

13

separate proof of service with the court is thirty days from the date of this order, and

14

all other deadlines in the scheduling order, ECF No. 5, are modified accordingly.

15
16 IT IS SO ORDERED.
17
18

Dated:

October 9, 2019
UNITED STATES MAGISTRATE JUDGE

19
20
21

No. 204

22
23
24
25
26
27
28

5

`