Sion v. Astrue

Filing 9

ORDER Concerning Review of Social Security Cases. Plaintiff shall, within thirty (30) days of the filing of this Order to file a motion to remand on the basis of new evidence or file a motion for reversal. See Order for details. Signed by Magistrate Judge George Foley, Jr on 10/30/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEVEN P. SION,

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Plaintiff,
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vs.
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MICHAEL J. ASTRUE, COMMISSIONER
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OF SOCIAL SECURITY,
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Defendant.
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__________________________________________)

Case No. 2:12-cv-01323-GMN-GWF
ORDER CONCERNING REVIEW
OF
SOCIAL SECURITY CASES

This case involves judicial review of administrative action by the Secretary of Health and

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Human Services, denying plaintiff’s claim for Social Security benefits. The Court recognizes that

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many of these cases have a number of factors in common:

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1.

Such cases rarely, if ever, require proceedings in the nature of a trial. Instead, these

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cases are usually resolved by cross-motions to reverse or remand and to affirm the Secretary’s

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decision.

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2.

The transcript of the evidence adduced at the administrative hearing frequently

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contains the words, “inaudible” or “illegible” in some places, and the administrative record

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sometimes contains documents which are illegible. These parts of the administrative record may or

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may not relate to the question of whether the Secretary’s decision is supported by substantial

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evidence.

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3.

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These cases are automatically assigned to the United States Magistrate Judge for

preparation of a Report and Recommendation to the United States District Judge.

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THEREFORE, IT IS ORDERED:

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1.

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In the event plaintiff intends to request a remand of this case on the basis of new

evidence, plaintiff shall, within thirty (30) days of the filing of this Order, file a motion to remand

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in this Court based on new evidence. The new evidence shall be attached to the motion. A copy of

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the motion and evidence shall be served on:

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United States Attorney
Lloyd D. George United States Courthouse
333 Las Vegas Boulevard South
Las Vegas, NV 89101

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2.

In the event plaintiff files a motion for remand on the basis of new evidence, the

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defendant shall have thirty (30) days from the date of service of such motion to file either (I) a

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notice of voluntary remand of the case or (ii) points and authorities in opposition to plaintiff’s

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motion. If defendant files points and authorities in opposition, plaintiff shall have twenty (20) days

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from the date of service of such points and authorities to file a reply.
3.

Under 42 U.S.C. § 405(g) remand for reconsideration of new evidence will not be

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granted unless the evidence is new and material and there is a showing of good cause for failure to

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incorporate the evidence into the record at an earlier stage. Therefore, if plaintiff seeks remand for

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consideration of new evidence, the motion shall include a statement of reasons why the new

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evidence was not incorporated into the record at an earlier stage.

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4.

In the event plaintiff does not file a motion for remand on the basis of new medical

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evidence, the plaintiff shall, within thirty (30) days of receipt of this Order, file with this Court a

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motion for reversal and/or remand.

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5.

Whenever plaintiff files a motion for reversal and/or remand, which includes issues

based on the administrative record, plaintiff’s motion shall include:

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(a) A specification of each and every condition or ailment, or combination of the

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two, that allegedly renders plaintiff disabled and is allegedly supported by evidence contained in

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the administrative record.

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(b) A complete summary of all medical evidence in the record that supports

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plaintiff’s claim of disability due to each condition or ailment specified in subparagraph 5(a) above,

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with precise references to the applicable portions of the record. This summary shall not include

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medical evidence unrelated to the conditions or ailments upon which plaintiff’s claim or claims of

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disability are based. It shall be sufficient compliance with this subparagraph if plaintiff shall
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stipulate that the Administrative Law Judge fairly and accurately summarized the evidence

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contained in the record.

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(c) A complete summary of all other evidence adduced at the administrative

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hearing that supports plaintiff’s claim with precise references to the applicable portions of the

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record. It shall be sufficient compliance with this subparagraph if plaintiff shall stipulate that the

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Administrative Law Judge fairly and accurately summarized the evidence adduced at the

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administrative hearing.

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(d) A complete but concise statement as to why the record does not contain
substantial evidence to support the defendant’s claim.
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If defendant has not filed a notice of voluntary remand and the issues in question

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relate to the administrative record, the defendant, within thirty (30) days after being served with

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plaintiff’s motion for reversal and/or remand, shall file a cross-motion to affirm which will be

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considered an opposition to plaintiff’s motion. This motion shall include:

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(a) A complete summary of all evidence in the record that the defendant contends

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constitutes substantial evidence to support the administrative determination that plaintiff is not

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entitled to the benefits in question. It shall be sufficient compliance with this subparagraph if the

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defendant shall stipulate that the Administrative Law Judge fairly and accurately summarized the

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evidence contained in the record.

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(b) A complete summary of all testimony adduced at the administrative hearing,

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including the Administrative Law Judge’s findings, if any, concerning the credibility of witnesses,

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which the defendant contends constitutes substantial evidence to support the administrative

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determination that plaintiff is not entitled to the benefits in question. It shall be sufficient

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compliance with this subparagraph if the defendant shall stipulate that the Administrative Law

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Judge fairly and accurately summarized the testimony adduced at the administrative hearing.

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(c) A statement as to whether there are any inaccuracies in the summaries filed by

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plaintiff. If the defendant believes plaintiff’s summaries are inaccurate, defendant shall set forth

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what additions or corrections are required (with appropriate references to the record) in order to

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make the summaries accurate.
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7.

The motions filed by plaintiff and defendant pursuant to paragraphs 5 and 6 of this

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Order, respectively, shall also contain appropriate points and authorities dealing with the specific

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legal issues involved in this case, rather than principles of law applicable to Social Security cases in

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general.

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8.

Plaintiff shall be deemed to have acceded to the accuracy of the summaries supplied

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by the defendant in response to subparagraphs 6(a) and 6(b) of this Order unless within twenty (20)

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days after being served with defendant’s motion to affirm plaintiff shall file and serve a reply brief

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setting forth:

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(a) In what manner the summaries are inaccurate;

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(b) What additions or corrections are required (with appropriate references to the
record) in order to make the summaries accurate.

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9.

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The motions filed by both plaintiff and defendant shall also contain the following:
(a) A statement as to whether the transcript of the administrative hearing can be

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adequately comprehended in spite of the fact that such transcript may contain the words “inaudible”

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or “unintelligible” in one or more places, and specifying each page, if any, in which testimony

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relating to the particular issues of this case cannot be adequately comprehended.

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(b) A specification of each page in the administrative record that is partially or

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totally illegible, and a statement whether each such illegible page contains information relevant to

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an understanding of any issue presented in this case.

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10.

Oral argument shall be deemed waived and the case shall stand submitted unless

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argument is ordered by the Court or requested pursuant to Local Rule 78-2, by one of the parties

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within ten (10) days following the filing of the last document required by this Court. It shall be at

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the Court’s discretion whether oral argument is granted.

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11.

Failure of a party to file a motion or points and authorities required by this Order

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may result in dismissal of the action or reversal of the decision of the Secretary of Health and

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Human Services.

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DATED this 30th day of October, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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