Nader v. Hargan

Filing 41

STIPULATION AND ORDER TO REMAND AS MODIFIED re 40 . STIPULATION WITH PROPOSED ORDER (Remanding Case to Administrative Level) filed by Denise Nader, Eric D. Hargan. Signed by Magistrate Judge Kandis A. Westmore on 11/2/18. (sisS, COURT STAFF) (Filed on 11/2/2018)

1 ALEX G. TSE (CABN 152348)
United States Attorney
2 SARA WINSLOW (DCBN 457643)
Chief, Civil Division
3 DAVID A. PEREDA (CABN 237982)
Assistant United States Attorney
1301 Clay Street, Suite 340S
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Oakland, CA 94612
Telephone: [phone]
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FAX: [phone]
[e-mail]
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7 Attorneys for Defendant
United States of America
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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DENISE NADER,
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Plaintiff,
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v.
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ERIC D. HARGAN,
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Defendant.
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) Case No.: C17-06568 KAW
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) STIPULATION RE REMAND; [PROPOSED]
) ORDER AS MODIFIED
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The parties, through their counsel, hereby stipulate as follows:

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On November 13, 2017, Plaintiff filed this action challenging an Administrative Law Judge’s

23 (“ALJ”) decision in ALJ No. 1-854995573, Docket No. M-12-1555. ECF No. 1; ECF 1-1, at 26. The
24 ALJ found that Medicare is entitled to a repayment of $187,802.15 from an award that Plaintiff’s husband
25 received. Id. Plaintiff contends that the decision is incorrect because the Alameda County Superior Court
26 upheld an arbitration award that assigned a lower reimbursement amount to Medicare, and Medicare was
27 represented by counsel during those proceedings. Id.
28 STIPULATION; [PROPOSED] ORDER
C17-06568 KAW

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On July 30, 2018, the government filed the Administrative Record for this action. ECF No. 36.

2 Unfortunately, it does not contain a transcript of the administrative hearing before the ALJ. Despite
3 diligent efforts, the agency cannot obtain a functioning copy of the audio from that hearing.
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Plaintiff contends that the transcript of the administrative hearing is vital to her challenge that the

5 underlying ALJ decision in this matter is not supported by substantial evidence. Because the Court’s
6 review is generally limited to the administrative record, 5 U.S.C. § 706, Plaintiff contends that she will be
7 severely prejudiced if she is unable to cite to that hearing.
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The Social Security Act provides the sole avenue for administrative and judicial review of

9 Medicare claims. Heckler v. Ringer, 466 U.S. 602, 614 (1984). Section 1395ff(b)(1)(A) of the Social
10 Security Act reads:
[A]ny individual dissatisfied with any initial determination shall be
entitled to reconsideration of the determination, and. . . a hearing
thereon by the Secretary [and] to judicial review of the Secretary's
final decision after such hearing as is provided in section 405(g) of
this title.

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14 42 U.S.C. § 1395ff(b)(1)(A).
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The Court may “for good cause shown before the [Secretary] files the [Secretary’s] answer,

16 remand the case to the [Secretary] for further action by the [Secretary], and it may at any time order
17 additional evidence to be taken before the [Secretary]. . . .” 42 U.S.C. § 405(g). That statute “permits the
18 district court to remand without making any substantive rulings as to the correctness of the [Secretary’s]
19 decision.” Raitport v. Callahan, 183 F.3d 101, 104 (2d Cir. 1999); See Prime Healthcare Services—San
20 Dimas LLC v. Price, C 18-8099-JAK, Dkt No. 47.
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Further, in the course of preparing an opening brief for the hearing of this matter before the District

22 Court, Plaintiff has determined that facts which have developed since 2012 in connection with the funds
23 which Medicare claims must be paid to it are not part of the administrative record. Plaintiff believes that
24 these facts should be brought to the attention of the Medicare Appeals Council in a re-adjudication before
25 an administrative law judge of the issues in this matter. In the event that a decision is again rendered
26 against Plaintiff, the administrative record will then be complete and up to date and will permit a full and
27 fair hearing before this Court.
28 STIPULATION; [PROPOSED] ORDER
C17-06568 KAW

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The parties thus agree, pursuant to 42 U.S.C. § 405(g) and 42 C.F.R. § 405.1138, that (1) this

2 matter be remanded to the Secretary with direction to remand the matter to be re-adjudicated before the
3 Administrative Law Judge, and (2) each party shall bear her own fees and costs with respect to the remand
4 of this action.
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IT IS SO STIPULATED.

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7 DATED: October 29, 2018

Respectfully submitted,
ALEX G. TSE
United States Attorney

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/s/ David Pereda
DAVID PEREDA
Assistant United States Attorney

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LAW OFFICE OF WILLIAM CAMPISIS JR.

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/s/* William Campisi Jr.
WILLIAM CAMPISI JR.

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PURSUANT TO STIPULATION, IT IS SO ORDERED. This matter is remanded to the Secretary
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of the U.S. Department of Health and Human Services with direction to remand the matter to be re18
adjudicated before the Administrative Law Judge. Each party shall bear her own fees and costs with
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respect to the remand of this action; and it is further
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ORDERED, that this matter is stayed and parties are to file a status report by May 3, 2019.

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24 Dated: 11/2/18
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KANDIS A. WESTMORE
UNITED STATES MAGISTRATE JUDGE

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28 STIPULATION; [PROPOSED] ORDER
C17-06568 KAW

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*CERTIFICATION

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Pursuant to Civil L.R. 5-1(i)(3), I, David Pereda, hereby attest that Mr. Campisi concurred in the

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28 STIPULATION; [PROPOSED] ORDER
C17-06568 KAW

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