Gamett v. Berryhill

Filing 11

SCHEDULING ORDER. Defendant shall file an electronic courtesy copy of the administrative record, under seal, in CM/ECF no later than 8/27/2018. Plaintiff shall file a motion to remand in this court based on new medical evidence no later than 9/12/2018. See order for further details and instructions. Signed by Magistrate Judge Peggy A. Leen on 8/13/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARANDA A. GAMETT,

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Plaintiff,

v.

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Case No. 2:18-cv-01000-MMD-PAL
SCHEDULING ORDER

NANCY A. BERRYHILL,

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Defendant.

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This case involves judicial review of an administrative action by the Commissioner of the

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Social Security Administration denying Plaintiff’s claim for benefits under the Social Security Act.

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Plaintiff filed an Application to Proceed In Forma Pauperis (ECF No. 1), and the Court screened

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the Complaint (ECF No. 3) pursuant to 28 U.S.C.  § 1915. The Commissioner filed an Answer

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(ECF No. 9) on August 13, 2018. No additional motions or pleadings have been filed.

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The court recognizes that many of these cases have a number of factors in common:

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1.

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

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these cases are usually resolved by cross-motions to reverse or remand and to affirm the

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Commissioner’s decision.

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2.

Sometimes the plaintiff submits new medical reports to the court in support of a

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request for remand at such a late date in the proceedings as to cause an unnecessary and undesirable

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delay in the rendering of a decision by the court.

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3.

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

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or may not relate to the question of whether the Commissioner’s decision is supported by

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substantial evidence.
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THEREFORE, IT IS ORDERED:

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1.

Defendant shall file an electronic courtesy copy of the administrative record, under

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seal, in CM/ECF no later than August 27, 2018. The courtesy copy shall be filed in a searchable

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PDF format with each exhibit linked separately and Optical Character Recognition performed.
2.

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

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medical evidence, Plaintiff shall file a motion to remand in this court based on new medical

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evidence no later than September 12, 2018, with a copy of the evidence attached to the motion,

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and shall serve a copy of the motion and medical evidence on the United States Attorney for the

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District of Nevada, 501 Las Vegas Boulevard South, Suite 1100, Las Vegas, Nevada, 89101.
3.

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In the event Plaintiff serves a motion for remand on the basis of new medical

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evidence on Defendant, Defendant shall have until October 12, 2018, to file either a notice of

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voluntary remand of the case or points and authorities in opposition to Plaintiff’s motion. Plaintiff

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may file a reply to the Defendant’s opposition no later than November 1, 2018.
4.

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If Plaintiff seeks remand for consideration of new medical evidence, the motion

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shall include a statement of reasons why the new evidence was not incorporated into the record at

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an earlier stage. Under 42 U.S.C. § 405(g), remand for consideration 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

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to incorporate the evidence into the record at an earlier stage.
5.

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evidence, Plaintiff shall file a motion for reversal and/or remand no later than September 12, 2018.
6.

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In the event Plaintiff does not file a motion to remand on the basis of new medical

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

based on the administrative record, Plaintiff’s motion shall include:
(a)

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A specification of each and every condition or ailment, or combination

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thereof, that allegedly renders Plaintiff disabled and is allegedly supported by evidence in

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the administrative record.
(b)

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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

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5(a) above, with precise references to the applicable portions of the record. This summary
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shall not include medical evidence unrelated to the conditions or ailments upon which

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Plaintiff’s claim(s) of disability are based. It shall be sufficient compliance with this

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subparagraph if Plaintiff stipulates that the Administrative Law Judge fairly and accurately

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summarized the medical evidence in the administrative record.
(c)

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A complete summary of all other evidence adduced at the administrative

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hearing that supports Plaintiff’s claim of disability due to each condition or ailment

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specified in subparagraph 5(a) above, with precise references to the applicable portions of

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the record. It shall be sufficient compliance with this subparagraph if Plaintiff stipulates

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that the Administrative Law Judge fairly and accurately summarized the medical evidence
in the administrative record.

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(d)

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With respect to each condition or ailment specified in subparagraph 5(a)

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above, a complete but concise statement as to why the record does not contain substantial

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evidence to support Defendant’s conclusion that Plaintiff is not disabled by each such

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condition or ailment, or combination thereof.

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7.

If Defendant has not filed a notice of voluntary remand, and the issues in question

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relate to the administrative record, Defendant shall file a cross-motion to affirm no later than

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October 12, 2018, which will be considered an opposition to Plaintiff’s motion. This motion shall

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include:
(a)

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With respect to each disabling condition or ailment specified by Plaintiff, a

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complete summary of all medical evidence in the record that Defendant contends

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constitutes substantial evidence to support the administrative determination that Plaintiff is

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not disabled due to such condition, ailment, or combination thereof. This summary shall

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not include medical evidence upon which Plaintiff’s claim(s) of disability are based. It

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

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Administrative Law Judge fairly and accurately summarized the medical evidence

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contained in the record.
(b)

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With respect to each disabling condition or ailment specified by Plaintiff, a

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

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

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Defendant contends constitutes substantial evidence to support the administrative

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determination that Plaintiff is not disabled due to such condition or ailment, or combination

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thereof. It shall be sufficient compliance with this subparagraph if Defendant stipulates

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that the Administrative Law Judge fairly and accurately summarized the testimony adduced

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at the administrative hearing.
(c)

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

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by Plaintiff in response to paragraphs 5(b) and 5(c) of this Order. If Defendant believes

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Plaintiff’s summaries are inaccurate, Defendant shall set forth what additions or correction

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are required (with appropriate references to the record) in order to make the summaries

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accurate.
(d)

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The lay definitions of all medical terms contained in the record necessary

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to be understood in order to determine whether Defendant’s decision is supported by

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substantial evidence.

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8.

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

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in general.
9.

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

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by Defendant in response to subparagraphs 6(a) and 6(b) of this Order, unless within twenty days

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after being served with Defendant’s cross-motion to affirm, Plaintiff files and serves a document

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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; and/or

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(c)

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Any definitions of the medical terms that Plaintiff contends are more

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accurate than the definitions supplied by Defendant.

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10.

The motions filed by both Plaintiff and Defendant shall also contain the following:
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(a)

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A statement as to whether the transcript of the administrative hearing can

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be adequately understood despite the fact that it might contain the words “inaudible” or

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“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 understood.
(b)

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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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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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no later than October 19, 2018. Even if one or both of the parties requests oral argument, the final

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decision as to whether oral argument is warranted remains with the court.
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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 Commissioner of Social

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Security as may be appropriate.
Dated this 13th day of August, 2018.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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