Gray v. Commissioner of Social Security

Filing 13

ORDER that Defendant shall submit an electronic courtesy copy of the administrative record, under seal, to CM/ECF within seven (7) days of the filing of this Order (see order for details). Signed by Magistrate Judge Nancy J. Koppe on 11/14/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 DONNA L. GRAY, ) ) Plaintiff(s), ) ) v. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of Social Security, ) ) Defendant(s). ) __________________________________________) Case No. 2:17-cv-02307-JAD-NJK ORDER 16 This case involves judicial review of administrative action by the Commissioner of Social Security, 17 denying Plaintiff’s claim for Social Security benefits. The Court recognizes that many of these cases have 18 a number of factors in common: 19 20 1. Such cases rarely, if ever, require proceedings in the nature of a trial. Instead, these cases are usually resolved by cross-motions to reverse or remand and to affirm the Commissioner’s decision. 21 2. Sometimes the plaintiff submits new medical reports to the court in support of a request for 22 remand at such a late date in the proceedings as to cause an unnecessary and undesirable delay in the 23 rendering of a decision by the court. 24 3. The transcript of the evidence adduced at the administrative hearing frequently contains the 25 words “inaudible” or “unintelligible” in some places, and the administrative record sometimes contains 26 documents which are illegible. These parts of the administrative record may or may not relate to the 27 question of whether the Commissioner’s decision is supported by substantial evidence. 28 // 1 2 4. These cases are automatically assigned to the United States Magistrate Judge for preparation of a Report and Recommendation to the United States District Judge. 3 THEREFORE, IT IS ORDERED: 4 1. Defendant shall submit an electronic courtesy copy of the administrative record, under seal, 5 to CM/ECF within seven (7) days of the filing of this Order. The courtesy copy shall be filed in a 6 searchable PDF format with each exhibit linked separately and Optical Character Recognition performed. 7 2. In the event Plaintiff intends to request a remand of this case on the basis of new medical 8 evidence, Plaintiff shall, within thirty (30) days of the filing of this Order, file a motion to remand in this 9 Court based on new evidence. The new evidence shall be attached to the motion. A copy of the motion 10 and medical evidence shall be served on: 11 United States Attorney 501 Las Vegas Boulevard South, Suite 1100 Las Vegas, NV 89101 12 13 3. In the event Plaintiff files a motion for remand on the basis of new evidence, Defendant shall 14 have thirty (30) days from the date of service of such motion to file either a notice of voluntary remand of 15 the case or points and authorities in opposition to Plaintiff’s motion. If Defendant files points and 16 authorities in opposition, Plaintiff shall have twenty (20) days from the date of service of such points and 17 authorities to file a reply. 18 4. Pursuant to 42 U.S.C. § 405(g), remand for reconsideration of new evidence will not be 19 granted unless the evidence is new and material and there is a showing of good cause for failure to 20 incorporate the evidence into the record at an earlier stage. Therefore, if Plaintiff seeks remand for 21 consideration of new evidence, the motion shall include a statement of reasons why the new evidence was 22 not incorporated into the record at an earlier stage. 23 24 5. In the event Plaintiff does not file a motion to remand on the basis of new medical evidence, Plaintiff shall, within thirty (30) days of this Order, file with this court a motion for reversal and/or remand. 25 6. Whenever Plaintiff files a motion for reversal and/or remand, which includes issues based 26 on the administrative record, Plaintiff’s motion shall include: 27 // 28 2 1 a. A specification of each and every condition or ailment, or combination thereof, that 2 allegedly renders Plaintiff disabled and is allegedly supported by evidence contained in the administrative 3 record. 4 b. A complete summary of all medical evidence in the record that supports Plaintiff’s 5 claim of disability due to each condition or ailment specified in subparagraph 6a above, with precise 6 references to the applicable portions of the record. This summary shall not include medical evidence 7 unrelated to the conditions or ailments upon which Plaintiff’s claim or claims of disability are based. It 8 shall be sufficient compliance with this subparagraph if Plaintiff shall stipulate that the Administrative Law 9 Judge fairly and accurately summarized the evidence contained in the administrative record. 10 c. A complete summary of all medical evidence in the record that supports Plaintiff’s 11 claim of disability due to each condition or ailment specified in subparagraph 6a above, with precise 12 references to the applicable portions of the record. This summary shall not include medical evidence 13 unrelated to the conditions or ailments upon which Plaintiff’s claim or claims of disability are based. It 14 shall be sufficient compliance with this subparagraph if Plaintiff shall stipulate that the Administrative Law 15 Judge fairly and accurately summarized the evidence adduced at the administrative hearing. 16 d. With respect to each condition or ailment specified in subparagraph 5a above, a 17 complete but concise statement as to why the record does not contain substantial evidence to support 18 Defendant’s conclusion that Plaintiff is not disabled by each such condition or ailment, or combination 19 thereof. 20 7. If Defendant has not filed a notice of voluntary remand and the issues in question relate to 21 the administrative record, Defendant, within thirty (30) days after being served with Plaintiff’s motion for 22 reversal and/or remand, shall file a cross-motion to affirm which will be considered an opposition to 23 Plaintiff’s motion. This motion shall include: 24 a. With respect to each disabling condition or ailment specified by Plaintiff, a complete 25 summary of all medical evidence in the record that Defendant contends constitutes substantial evidence to 26 support the administrative determination that Plaintiff is not entitled to the benefits in question. This 27 summary shall not include medical evidence unrelated to conditions or ailments upon which Plaintiff’s 28 claim or claims of disability are based. It shall be sufficient compliance with this subparagraph if 3 1 Defendant shall stipulate that the Administrative Law Judge fairly and accurately summarized the evidence 2 contained in the record. 3 b. With respect to each disabling condition or ailment specified by Plaintiff, a complete 4 summary of all testimony adduced at the administrative hearing, including the Administrative Law Judge’s 5 findings, if any, concerning the credibility of witnesses, which Defendant contends constitutes substantial 6 evidence to support the administrative determination that Plaintiff is not entitled to the benefits in question. 7 It shall be sufficient compliance with this subparagraph if Defendant shall stipulate that the Administrative 8 Law Judge fairly and accurately summarized the testimony adduced at the administrative hearing. 9 c. A statement as to whether there are any inaccuracies in the summaries filed by 10 Plaintiff. If Defendant believes Plaintiff’s summaries are inaccurate, Defendant shall set forth what 11 additions or corrections are required (with appropriate references to the record) in order to make the 12 summaries accurate. 13 14 d. The lay definitions of all medical terms contained in the record necessary to be understood in order to determine whether Defendant’s decision is supported by substantial evidence. 15 8. The motions filed by Plaintiff and Defendant pursuant to paragraphs 6 and 7 of this Order, 16 respectively, shall also contain appropriate points and authorities dealing with the specific legal issues 17 involved in this case, rather than principles of law applicable to Social Security cases in general. 18 9. Plaintiff shall be deemed to have acceded to the accuracy of the summaries supplied by 19 Defendant in response to subparagraphs 7a and 7b of this Order, and to all definitions of medical terms 20 supplied by Defendant with respect to subparagraph 7d of this Order, unless within twenty (20) days after 21 being served with Defendant’s motion to affirm Plaintiff shall file and serve a document setting forth: 22 a. In what manner the summaries are inaccurate; 23 b. What additions or corrections are required (with appropriate references to the record) 24 in order to make the summaries accurate; and/or 25 26 c. the definitions supplied by Defendant. 27 28 Any definitions of the medical terms that Plaintiff contends are more accurate than 10. The motions filed by both Plaintiff and Defendant shall also contain the following: // 4 1 a. A statement as to whether the transcript of the administrative hearing can be 2 adequately comprehended in spite of the fact that such transcript may contain the words “inaudible” or 3 “unintelligible” in one or more places, and specifying each page, if any, in which testimony relating to the 4 particular issues of this case cannot be adequately comprehended. 5 b. A specification of each page in the administrative record that is partially or totally 6 illegible, and a statement as to whether each such illegible page contains information relevant to an 7 understanding of any issue presented in this case. 8 11. Oral argument shall be deemed waived and the case shall stand submitted unless argument 9 is ordered by the Court or requested, pursuant to Local Rule 78-1, by one of the parties within ten (10) days 10 following the filing of the last document required by this Court. Even if one or both of the parties requests 11 oral argument, the final decision as to whether oral argument is warranted remains with the Court. 12 13 12. Failure of a party to file a motion or points and authorities required by this Order may result in dismissal of the action or reversal of the decision of the Commissioner of Social Security. 14 IT IS SO ORDERED. 15 DATED: November 14, 2017 16 17 ________________________________________ NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 5

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