Ruditsky v. Saul

Filing 10

ORDER Granting 9 Motion to Extend Time re 1 Complaint (Second Request). Andrew Saul answer due 1/26/2021. Signed by Magistrate Judge Daniel J. Albregts on 11/20/2020. (Copies have been distributed pursuant to the NEF - MR)

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NICHOLAS A. TRUTANICH
United States Attorney
District of Nevada

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ALLISON J. CHEUNG, CSBN 244651
Special Assistant United States Attorney
160 Spear Street, Suite 800
San Francisco, California 94105
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

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Attorneys for Defendant

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SUSAN RUDITSKY,

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Plaintiff,
vs.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.

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Case No.: 2:20-cv-01285-DJA
UNOPPOSED MOTION FOR EXTENSION OF
TIME TO FILE CERTIFIED
ADMINISTRATIVE RECORD AND ANSWER;
DECLARATIONS OF JEBBY RASPUTNIS AND
CHRISTIANNE VOEGELE
(SECOND REQUEST)

Case 2:20-cv-01285-DJA Document 10 Filed 11/19/20 Page 2 of 5
Case 2:20-cv-01285-DJA Document 9
11/20/20
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Defendant, Andrew Saul, Commissioner of Social Security (the “Commissioner”), by and through

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his undersigned attorneys, hereby moves for a sixty-day extension of time to file the Certified

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Administrative Record (CAR) and answer to Plaintiff’s Complaint. The CAR and answer to Plaintiff’s

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Complaint are due to be filed by November 27, 2020. This is the Commissioner’s second request for an

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extension. The following provides the Court with an updated status of the agency’s ability to prepare

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CARs, including an updated declaration from Jebby Rasputnis.
In light of the global COVID-19 pandemic, the Social Security Administration (“SSA” or the

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“Agency”) has taken the unprecedented step of suspending in-office services to the public:
https://www.ssa.gov/coronavirus/. The Agency is focusing on providing the most critical services by mail,
phone and online to those most in need. SSA is also taking additional steps to protect its employees and
help stop the spread of COVID-19, maximizing social distancing, including significantly limiting employee
access to SSA facilities for health and safety only and has moved toward a temporary virtual work
environment. Electronic processes allow some of SSA’s most critical work to continue with minimal
interruption; other workloads have been suspended until the health crisis abates or the Agency is able to
create new electronic business processes.

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For purposes of this particular case, the public health emergency pandemic has significantly

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impacted operations in the Social Security Administration’s Office of Appellate Operations (OAO) in Falls

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Church, Virginia. That office is responsible for physically producing the administrative record that is

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required to adjudicate the case under Sections 205(g) and (h) of the Social Security Act, 42 U.S.C. § 405(g)

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and

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https://secure.ssa.gov/apps10/poms.nsf/lnx/0203106025.

(h).

See

SSA

Program

Operations

Manual

System

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03106.025,

available at

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As detailed in the attached declarations, beginning March 16, 2020, OAO’s staff members began

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to telework to protect employee health and prevent further spread of COVID-19. At that time, critical in-

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person physical tasks associated with preparing the administrative record could not be accomplished. For

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example, prior to the COVID-19 pandemic, to safeguard Personally Identifiable Information (PII), all

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hearing recordings, which are part of the administrative record, were downloaded onto compact discs and

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encrypted. OAO securely routed the encrypted discs to a private contractor through a daily pickup and

Unopposed Mot. for Ext.; 2:20-cv-01285-DJA

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Case 2:20-cv-01285-DJA Document 9
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delivery service at the Official Duty Station (ODS) in Falls Church, Virginia. The private contractor would

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transcribe the hearing recording and send the paper copy of the hearing transcript back to OAO. OAO

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personnel would then scan the hearing transcript into the electronic record or place the hearing transcript

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in the paper case file. Thereafter, OAO personnel would assemble the administrative record in a prescribed

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order.

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To ensure a continuity of operations, OAO has been actively pursuing mitigation efforts to allow

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the remote preparation of administrative records. For cases in which the private contractors were already

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in possession of hearing recordings for transcription, with the assistance of the Office of Acquisitions and
Grants (OAG), OAO received approval to receive these transcripts from the private contractors via secured
email, e.g., using password protection and redacted Social Security Numbers. In April 2020, OAO began
receiving such hearing transcripts from private contractors via secured email.
For cases in which OAO had not yet submitted recordings to the private contractors before March
16, 2020, OAO has been pursuing all available options to obtain transcriptions for these cases. In May
2020, OAO began encrypting hearing recordings and securely emailing them to the contractors for
transcription. Through the month of May, OAO and the contractors worked to resolve technical issues that
arose, particularly with large files. The process is functioning now, albeit at only half of normal
productivity.

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Given the volume of pending cases, Defendant requests an extension in which to respond to the

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Complaint until January 26, 2021. If in sixty days the CAR is not prepared, the Commissioner will file a

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status report with the Court as to when he expects the CAR to be completed.

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On November 18, 2020, the undersigned conferred with Plaintiff’s counsel, who has no opposition
to the requested extension.
It is therefore respectfully requested that Defendant be granted an extension of time to file the CAR

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and answer to Plaintiff’s Complaint, through and including November26, 2021.
January 27, 2020.

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//

Unopposed Mot. for Ext.; 2:20-cv-01285-DJA

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Case 2:20-cv-01285-DJA Document 10 Filed 11/20/20 Page 4 of 13

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Dated: November 19, 2020
NICHOLAS A. TRUTANICH
United States Attorney

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/s/ Allison J. Cheung
ALLISON J. CHEUNG
Special Assistant United States Attorney

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IT IS SO ORDERED:

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UNITED STATES MAGISTRATE JUDGE

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November 20, 2020
DATED: ___________________________

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Unopposed Mot. for Ext.; 2:20-cv-01285-DJA

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Case 2:20-cv-01285-DJA Document 9
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CERTIFICATE OF SERVICE
I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My
business address is 160 Spear Street, Suite 800, San Francisco, California 94105. I am not a party to the
above-entitled action. On the date set forth below, I caused service of UNOPPOSED MOTION FOR
EXTENSION OF TIME TO FILE CERTIFIED ADMINISTRATIVE RECORD AND ANSWER;
DECLARATIONS OF JEBBY RASPUTNIS AND CHRISTIANNE VOEGELE on the following

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parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System,

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which provides electronic notice of the filing:

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Marc Kalagian
[e-mail]
Attorney for Plaintiff
Gerald Welt
[e-mail]
Attorney for Plaintiff
I declare under penalty of perjury that the foregoing is true and correct.
Dated: November 19, 2020
/s/ Allison J. Cheung
ALLISON J. CHEUNG
Special Assistant United States Attorney

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Unopposed Mot. for Ext.; 2:20-cv-01285-DJA

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DECLARATION OF JEBBY RASPUTNIS
OFFICE OF APPELLATE OPERATIONS
SOCIAL SECURITY ADMINISTRATION
I, JEBBY RASPUTNIS, Executive Director of the Social Security Administration’s Office of
Appellate Operations (OAO), declare and state as follows:
1) My office is responsible for, among other things, preparing certified copies of
administrative records (CARs) for Federal court review when claimants appeal the final
decisions of the Commissioner of Social Security.
2) Beginning in mid-March, the Social Security Administration restricted physical access to
our buildings because of the COVID-19 pandemic. In order to protect the health and
safety of our employees and our community, we have kept our employees on maximum
telework, only authorizing limited in-office work since that time. The OAO’s office in
Falls Church, Virginia – which is home to OAO’s Division of Civil Actions (DCA) – is
included in this restriction. Prior to the pandemic, DCA staff worked out of the Falls
Church office, with the support of three contracted transcription typing services, to
complete CARs using a manual paper process.

RECENT PROGRESS IN PRODUCING CARS
3) After much work, we have redesigned our business processes to allow for a mostly
virtual CAR preparation process. These new approaches required us to modify and test
technology, retrain staff, and modify blanket purchasing agreements with the
transcription typing services we rely on for transcripts of agency hearings. It has taken us
some time and more than one try, but we now have a virtual process that has enabled us
to ramp up our CAR production commensurate with the capacity of our transcription

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typing services. In September, we processed 1,372 cases, and we are on track to process
at least that same amount in October.
4) The effects of the COVID-19 pandemic also resulted in staffing and processing problems
for our transcript typing service contractors. These contractors are a necessary part of the
CAR preparation process because the agency does not have staff to produce hearing
transcripts. The agency is supporting its existing contractors in hiring new staff by
expediting their suitability investigations and credentialing.
5) We have historically only worked with three contracted transcript typing services, but in
September 2020, we brought two additional contracts online. We are now working with
five contracted transcription typing services.
6) We are also continuously assessing staffing needs within our DCA branches. We have
recently hired two additional branch chiefs and are hiring four additional Civil Actions
Assistants to process our rising workload.

CURRENT CHALLENGES
7) Backlog: The backlog of work that built up during the past seven months is daunting. At
the end of September, we had more than 8,700 new court cases waiting to be processed.
Although we are now producing CARs at our pre-pandemic levels, the number of new
complaints in the district courts has increased. In fiscal 2019, district court complaints
filed against the agency averaged 1,440 per month. In the last three months, we received
more than 2,000 new court cases each month. We publish quarterly workload information
https://www.ssa.gov/appeals/DataSets/08_National_New_Court_Cases_and_Remands.ht
ml.

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8) Prioritizing Cases Using the New Process: Due to our change to a new electronic
processing system, our staff had difficulty separating the oldest cases from the newer
cases when transmitting audio files to the contracted transcription typing services.
Although we now have an organizational system to identify older cases for processing by
our contract typing services, each contractor works at a different speed based on their
individual staffing challenges. As our organization system continues to improve the
processing order, we expect that disparities between case filing dates and CAR
completion dates will decrease. We continue to focus our efforts on processing the most
aged cases.
9) Capacity of Contracted Transcription Typing Services: Despite our best efforts to assist,
the pandemic has adversely impacted the contractors’ capacity to perform their
transcription services. We have been working with the existing contractors to increase
their capacity, and have effectuated two new contracts. However, our contractors have
finite capacity to deliver hearing transcripts. The pandemic’s impact on the contractors’
workforce remains outside of our control.
10) Overall, the timeframe for delivering a CAR in any individual case has improved.
Although we remain subject to some constraints, we continue to work on increasing
productivity to the best of our ability. We ask for continued patience as we work to
increase our production of CARs, and address rising court case filings.
In accordance with 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is
true and correct to the best of my knowledge and belief.

Dated October 21, 2020

______________________________
/s/
Jebby Rasputnis

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DECLARATION OF CHRISTIANNE VOEGELE
OFFICE OF APPELLATE OPERATIONS
SOCIAL SECURITY ADMINISTRATION
I, CHRISTIANNE VOEGELE, Chief of Court Case Preparation and Review Branch 1,
and Acting Chief of Court Case Preparation and Review Branch 3, of the Social Security
Administration’s Office of Appellate Operations (OAO), declare and state as follows:
(1)

Under direct delegation from the Commissioner of Social Security, the Office of

Hearings Operations (OHO) administers a nationwide hearings program, and OAO administers a
nationwide appeals program. OHO includes the Administrative Law Judges who hold hearings
on claims arising under Titles II and XVI of the Social Security Act, as amended, when a
claimant who is dissatisfied with their administrative determination requests a hearing. OAO
includes the Appeals Council, which reviews claims when a claimant is dissatisfied with the
decision rendered by an Administrative Law Judge. OAO also provides professional and
technical advice to the Deputy Commissioner and Administrative Appeals Judges of the Appeals
Council in the processing of cases in which a claimant has filed a civil action.
(2)

One function of the Appeals Council is to act on requests for review of hearing

decisions made by Administrative Law Judges and to either grant, deny or dismiss any such
request. Under the regulations of the Social Security Administration, if the Appeals Council
denies a timely request for review of a hearing decision, that hearing decision becomes the “final
decision” within the meaning of, and subject to, the provisions for judicial review in section
205(g) of the Social Security Act, as amended (42 U.S.C. section 405(g)). The first sentence of
that section reads as follows:
“Any individual, after any final decision of the Commissioner made after a
hearing to which he was a party, irrespective of the amount in controversy, may

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obtain a review of such decision by a civil action commenced within sixty days
after the mailing to him of notice of such decision or within such further time as
the Commissioner may allow.***”
(3)

I am responsible for the processing of claims under Titles II and XVI of the Social

Security Act, as amended, whenever a civil action has been filed in the Fourth, Sixth, Seventh,
Ninth, Eleventh, and District of Columbia judicial circuits. As described below, OAO’s business
processes are true to the best of my knowledge and belief.
a) If a civil action is properly commenced, the third sentence of 42 U.S.C. 405(g) states
the following: “As part of the Commissioner’s answer[,] the Commissioner shall file
a certified copy of the transcript of the record including the evidence upon which the
findings and decision complained of are based.” On behalf of the Commissioner of
the Social Security Administration, OAO personnel are responsible for preparing a
certified copy of the transcript of the record.
b) Upon notification of the civil action by the U.S. Attorney’s Office or the Social
Security Administration’s Office of General Counsel, OAO personnel must locate
and retrieve the plaintiff’s claim(s) file, which is in either a paper or electronic
format. The file contains both evidentiary and procedural documents, and the
recording of any hearing held before an Administrative Law Judge.
c) Upon locating the file, OAO personnel determines if the claimant timely filed the
civil action and, if so, routes the recording of the hearing to a private contractor for
transcription.
d) Historically and prior to the COVID-19 pandemic, to safeguard Personally
Identifiable Information (PII), all hearing recordings were downloaded onto compact
discs, and these discs were encrypted. OAO securely routed the encrypted discs to a

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private contractor through a daily pickup and delivery service at the Official Duty
Station (ODS) in Falls Church, Virginia. The contractor is responsible for all tasks
necessary for transcription typing services. It is estimated that an average hearing
lasts 45 minutes and results in an average of 33 pages of transcript. Each transcript
contains a certification statement by a transcriber and proofreader. Transcription of a
hearing recording can take up to 20 business days, but is generally transcribed in 5-10
business days. After the contractor transcribed the hearing recording, a paper copy of
the hearing transcript was sent back via a delivery service to the ODS in Falls Church,
Virginia. OAO personnel would then scan the hearing transcript into the electronic
record or place the hearing transcript in the paper case file. Thereafter, OAO
personnel would assemble the administrative record in a prescribed order.
e) Most cases are adjudicated using the Social Security Administration’s Electronic
Disability Collect System (EDCS). Even using EDCS, most cases historically
required physical, in-house scanning and uploading of hearing transcripts. This work
was performed at the ODS.
f) Even for cases using EDCS that are in electronic format, many jurisdictions require
encrypted compact discs and paper copies of the certified administrative record. All
paper copies are produced at the ODS, and all compact discs and paper copies are
shipped via United States Parcel Service from the ODS.
g) Due to the COVID-19 pandemic, OAO staff are not currently authorized to report to
the office due to health and safety concerns. On or about March 16, 2020, OAO
began working remotely. Consequently, OAO had been unable to complete certified
administrative records on any cases that required in-office work at the ODS,

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including any cases in which the transcript(s) of the hearing recording(s) had not
already been uploaded to the electronic file.
h) To ensure a continuity of operations, OAO has been actively pursuing mitigation
efforts to allow the remote preparation of as many administrative records as possible.
a. For cases in which the private contractors were already in possession of
hearing recordings for transcription, with the assistance of the Office of
Acquisitions and Grants (OAG), OAO received approval to receive these
transcripts from the private contractors via secured email, e.g., using password
protection and redacted Social Security Numbers. In April 2020, OAO began
receiving such hearing transcripts from private contractors via secured email.
b. Subsequently, OAO consulted with OAG and the Office of the General
Counsel, and obtained approval for a new process to replace encrypted
compact discs. In May 2020, OAO began encrypting hearing recordings and
securely emailing them to the contractors for transcription. Through the
month of May, OAO and the contractors worked to resolve technical issues
that arose, particularly with large files. The process is functioning now, albeit
at a fraction of normal productivity.
i) OAO plans to continue to explore all options available to complete the preparation of
certified electronic records during the COVID-19 pandemic.
j) OAO generally prioritizes the preparation of the certified administrative records
based on receipt dates, with the oldest receipt dates processed first. OAO will work
to ensure the oldest pending cases, including court remands and final decisions, are
given priority processing.

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In accordance with 28 U.S.C. §1746, I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge and belief.

June 17, 2020
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Date

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CHRISTIANNE VOEGELE