Messer v. Astrue

Filing 27

MEMORANDUM AND ORDER regarding Defendant's Motion to Strike 26 and Motion to Remand 24 . The Defendant's Motion to Strike and Motion to Seal, ECF No. 26 , is granted and a portion of the record filed in this case, "Med Records Pt 3& quot; (pp. 501-638), ECF filing 12 -2, is hereby stricken from the record and ECF filing 12 -2 shall be sealed. The Motion to Remand, ECF No. 24 , is granted pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ's decision is reversed. This case is remanded to the Commissioner of the Social Security Administration. Ordered by Senior Judge Warren K. Urbom. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM KELLY MESSER II,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant.

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4:10CV3171

MEMORANDUM AND
ORDER ON DEFENDANT’S MOTION TO
STRIKE AND MOTION TO SEAL AND
MOTION TO REMAND

Before me are the Defendant’s Motion to Strike and Motion to Seal, ECF No. 26, and
defendant’s Motion to Remand, ECF No. 24. For the reasons stated in its pleadings, I will grant those
motions.
In the plaintiff’s Motion for Extension of Time, ECF No. 22, ¶ 2, the plaintiff says:
“[w]hile working to complete Plaintiff’s Initial Brief, counsel became aware that TR.
628-633, a portion of the physical capacity assessment performed as a part of a posthearing consultative examination arranged for by the Defendant contains information
concerning a claimant other than Plaintiff. Because that information does not relate
to Plaintiff, and because present counsel did not represent Plaintiff at the
administrative level, the actual evidence considered by the ALJ in this regard is not
known to Plaintiff at this time.
In the Defendant’s Motion to Strike and Motion to Seal, ECF No. 26, at ¶1 the defendant
says:
Defendant filed Med Records Pt.3 as part of the Social Security Administration
Administrative Record on or about March 7, 2011. Med Records Pt. 3 includes a
number of medical records, including a medical source statements questionnaire
completed by Rajesh Kumar, M.D. In this questionnaire, a different claimant’s name
and Social Security Number appears on six pages . . . rather than the Plaintiff’s name
and Social Security Number.
In the defendant’s Motion to Remand, ECF No. 24, the defendant requests that this action
be remanded “under sentence four of 42 U.S.C. § 405(g).” The reason given is that “the

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Administrative Law Judge (ALJ) relied on a medical opinion that may describe someone other than
Plaintiff.”

IT THEREFORE IS ORDERED that:
1.

the Defendant’s Motion to Strike and Motion to Seal, ECF No. 26, is granted and a
portion of the record filed in this case, “Med Records Pt 3 (pp. 501-638), ECF filing
12-2, is hereby stricken from the record. and ECF filing 12-2 shall be sealed;

2.

the Motion to Remand, ECF No. 24, is granted pursuant to sentence four of 42
U.S.C. § 405(g), the ALJ’s decision is reversed; and

3.

this case is remanded to the Commissioner of the Social Security Administration.

Dated October 17, 2011.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge

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