Decovich v. Colvin

Filing 13

SPECIAL SCHEDULING ORDER CONCERNING REVIEW OF SOCIAL SECURITY CASE. Defendant shall submit an electronic courtesy copy of the administrative record under seal to CM/ECF within seven days of the filing of this Order. If the Plaintiff intends to re quest a remand of this case on the basis of new evidence, Plaintiff shall do so within 30 days of the filing of this Order. In the event Plaintiff does not file a motion for remand, the Plaintiff shall within 30 days of receipt of this Order file a motion for reversal and/or remand. Signed by Magistrate Judge Carl W. Hoffman on 6/3/2014. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

7 MI AE DECOVICH,
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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security
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Administration,
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Defendant.
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____________________________________)

Case No. 2:14-cv-00394-RCJ-CWH
SPECIAL SCHEDULING ORDER
CONCERNING REVIEW OF
A SOCIAL SECURITY CASE

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This case involves judicial review of administrative action by the Commissioner of Social Security,
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denying Plaintiff’s claim for Social Security benefits. The Court recognizes that many of these cases have
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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 cases are

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usually resolved by cross-motions to reverse or remand and to affirm the Commissioner’s decision.
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2.

The transcript of the evidence adduced at the administrative hearing frequently contains the words,

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“inaudible” or “illegible” in some places, and the administrative record sometimes contains
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documents which are illegible. These parts of the administrative record may or may not relate to
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the question of whether the Commissioner’s decision is supported by substantial evidence.
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3.

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

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Report and Recommendation to the United States District Judge.
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THEREFORE, IT IS HEREBY ORDERED:
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1.

Defendant shall submit an electronic courtesy copy of the administrative record, under seal, to

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CM/ECF within seven (7) days of the filing of this Order.
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2.

In the event Plaintiff intends to request a remand of this case on the basis of new evidence, Plaintiff

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shall, within thirty (30) days of the filing of this Order, file a motion to remand in this Court based
on new evidence. The new evidence shall be attached to the motion. A copy of 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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3.

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

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shall have thirty (30) days from the date of service of such motion to file either (i) a notice of
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voluntary remand of the case or (ii) points and authorities in opposition to Plaintiff’s motion. If
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Defendant files points and authorities in opposition, Plaintiff shall have twenty (20) days from
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the date of service of such points and authorities to file a reply.
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4.

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

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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
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for 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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5.

In the event Plaintiff does not file a motion for remand on the basis of new medical evidence,

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the Plaintiff shall, within thirty (30) days of receipt of this Order, file with this Court a motion
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for reversal and/or remand.
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6.

Whenever Plaintiff files a motion for reversal and/or remand, which includes issues based on

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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 two, that

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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 Plaintiff’s

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claim of disability due to each condition or ailment with precise references to the
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applicable portions of the record. The summary shall not include medical evidence
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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
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stipulates that the Administrative Law Judge fairly and accurately summarized the
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evidence contained in the record.
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c.

A complete summary of all other evidence adduced at the administrative hearing that

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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

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stipulate that the Administrative Law Judge fairly and accurately summarized the

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evidence adduced at the administrative hearing.

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d.

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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 relate to the

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administrative record, the Defendant, within thirty (30) days after being served with Plaintiff’s

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

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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

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is not entitled to the benefits in question. It shall be sufficient compliance with this

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subparagraph if the Defendant stipulates that the Administrative Law Judge fairly and

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accurately summarized the evidence contained in the record.

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b.

A complete summary of all testimony adduced at the administrative hearing, including

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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

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administrative determination that Plaintiff is not entitled to the benefits in question. It

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shall be sufficient compliance with this subparagraph if the Defendant stipulates that the

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Administrative Law Judge fairly and accurately summarized the testimony adduced at

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the administrative hearing.

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c.

A statement as to whether there are any inaccuracies in the summaries filed by Plaintiff.

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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

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order to make the summaries accurate.

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The motions filed by Plaintiff and Defendant pursuant to paragraphs 6 and 7 of this Order,

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respectively, shall also contain appropriate points and authorities dealing with the specific 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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Plaintiff shall be deemed to have acceded to the accuracy of the summaries supplied by the

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Defendant in response to subparagraphs 7(a) and 7(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

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brief 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

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order to make the summaries accurate.
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 adequately

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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

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testimony relating to the particular issues of this case cannot be adequately

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comprehended.

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b.

A specification of each page in the administrative record that is partially or totally

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

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to an understanding of any issue presented in this case.

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

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

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

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Court’s discretion whether oral argument is granted.

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

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dismissal of the action or reversal of the decision of the Commissioner of Social Security.

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DATED this 3rd day of June, 2014.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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