Cheema v. Social Security Administration, Commissioner of

Filing 23

ORDER granting 21 Defendant's Motion to Reverse and Remand and for Entry of Final Judgment. This case is REVERSED AND REMANDED to the Defendant pursuant to sentence four of 42 U.S.C. Section 405(g). The court further grants 20 Motion to S trike Erroneous Administrative Record and to submit a Corrected Administrative Record. The initial administrative record (filed as attachments to Doc. 9) is hereby stricken from the record and the Clerk of the Court shall delete or destroy all copies of the previously filed administrative transcript, whether in electronic, CD, paper, or any other form. Upon deletion and destruction of the initial administrative record (filed as attachments to Doc. 9), the Clerk of the Court shall enter a text entry notice of such destruction upon the docket of the Court. SEE ORDER FOR FURTHER DETAILS. Signed by District Judge John W. Lungstrum on 11/24/2009. (ses)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS STACEY CHEEMA, Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant. ) ) ) ) ) ) ) ) ) ) ) Civil No. 09-CV-02162-JWL-GBC ORDER GRANTING DEFENDANT'S MOTION TO REVERSE AND REMAND AND FOR ENTRY OF FINAL JUDGMENT (DOC. 21) AND DEFENDANT'S MOTION TO STRIKE ERRONEOUS ADMINISTRATIVE RECORD AND TO SUBMIT CORRECTED ADMINISTRATIVE RECORD (DOC. 20) Before the Court are the Defendant's Motion to Reverse and Remand and for Entry of Final Judgment (Doc. 21) and Defendant's Motion to Strike Erroneous Administrative Record and to Submit Corrected Administrative Record (Doc. 20). The Court is informed that both of these motions are unopposed by the Plaintiff. Having reviewed the motions and the record, the Court is prepared to rule. In accordance with Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), the Commissioner of Social Security is required to file a certified copy of the transcript of the record, including the evidence upon which the Commissioner's findings and decisions are based, in Social Security disability appeals. On May 1, 2009, the Commissioner filed a copy of the administrative record in this matter. (See Doc. 9 attachments.) Upon further review of the administrative record, it was determined that the administrative record contained the personal information of an individual other than Plaintiff (Tr. 359-360, 362-367, 372, and 381-388). Defendant has filed a new certified copy of the administrative record that eliminated the personal information of the third party and indicates the redaction of the pages related to the third party. (Doc. 20 and attachments.) The Court finds that the original administrative record contained medical records of a third party that were erroneously cited by the administrative law judge ("ALJ") in her decision. Therefore, reversal and remand are appropriate so that the Defendant may reconsider the Commissioner's decision in light of a correct administrative record. See 24 U.S.C. 405(g). IT IS THEREFORE ORDERED that the Defendant's Motion to Reverse and Remand and for Entry of Final Judgment (Doc. 21) is GRANTED. IT IS FURTHER ORDERED that this case is REVERSED AND REMANDED to the Defendant pursuant to sentence four of 42 U.S.C. 405(g). IT IS FURTHER ORDERED that upon receipt of the Court's remand order, the Appeals Council shall remand this case to the ALJ, who shall consider the amended administrative record, reevaluate her credibility determination in light of an amended administrative record, and base her determination only on those documents contained therein. IT IS FURTHER ORDERED that final judgment shall be entered pursuant to Federal Rule of Civil Procedure 58. IT IS FURTHER ORDERED that Defendant's Motion to Strike Erroneous Administrative Record and to Submit Corrected Administrative Record (Doc. 20) is GRANTED. The initial administrative record (filed as attachments to Doc. 9) is hereby stricken from the record and the Clerk of the Court shall delete or destroy all copies of the previously filed administrative transcript, whether in electronic, CD, paper, or any other form. Upon deletion and destruction of the initial administrative record (filed as attachments to Doc. 9), the Clerk of the Court shall enter a text entry notice of such destruction upon the docket of the Court. 2 IT IS FURTHER ORDERED that the Plaintiff and Plaintiff's attorney(s) shall delete or destroy all copies of the initial administrative record (filed as attachments to Doc. 9), whether in electronic, CD, paper, or any other form. Within 30 days of this order, counsel for Plaintiff shall give written notice of such destruction to counsel for Defendant. IT IS SO ORDERED. s/John W. Lungstrum HONORABLE JOHN W. LUNGSTRUM DISTRICT JUDGE Approved by: s/ NICHOLAS D. PURIFOY NICHOLAS D. PURIFOY Midland Professional Associates 5020 Bob Billings Pkwy. Lawrence, KS 66049 MO # 57816 (785) 832-8521 (telephone) (785) 832-0006 (facsimile) E-mail: npurifoy@midlandgroup.com Attorney for Plaintiff s/ DAVID D. ZIMMERMAN DAVID D. ZIMMERMAN Assistant United States Attorney 500 State Avenue, Suite 360 Kansas City, Kansas 66101 N.C. S. Ct. No. 23486 (913) 551-6730 (telephone) (913) 551-6541 (facsimile) E-mail: David.Zimmerman@usdoj.gov Attorney for Defendant 3

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