Selvester v. Saul

Filing 18

ORDER. IT IS ORDERED In the event Plaintiff intends to request a remand of this case on the basis of new medical evidence, Plaintiff shall, within thirty (30) court days of the filing of this Order, file a motion to remand in this Court based on new evidence. See Order for Details Signed by Magistrate Judge Elayna J. Youchah on 1/6/2021. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:20-cv-01536-GMN-EJY Document 18 Filed 01/06/21 Page 1 of 5

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ELVA TERESA SELVESTER,

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Case No. 2:20-cv-01536-GMN-EJY

Plaintiff,
ORDER

v.
ANDREW SAUL, Commissioner of Social
Security,
Defendant.

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

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Security, denying Plaintiff’s claim for Social Security benefits. The Court recognizes that many of

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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 Commissioner’s

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decision.

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2.

Sometimes Plaintiff submits new medical reports to the Court in support of a request

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

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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 “unintelligible” 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 Commissioner’s decision is supported by substantial

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evidence.

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4.

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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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Case 2:20-cv-01536-GMN-EJY Document 18 Filed 01/06/21 Page 2 of 5

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THEREFORE, IT IS ORDERED:

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1.

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, within thirty (30) court days of the filing of this Order, file a

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motion to remand in this Court based on new evidence. The new evidence shall be attached to the

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motion. A copy of the motion and medical evidence shall be served on:

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United States Attorney
501 Las Vegas Boulevard South, Suite 1100
Las Vegas, NV 89101

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2.

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

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

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

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If Defendant files points and authorities in opposition, Plaintiff shall have twenty (20) court days

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

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3.

Pursuant to 42 U.S.C. § 405(g), remand for reconsideration of new evidence will not

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be granted unless the evidence is new 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 evidence

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was not incorporated into the record at an earlier stage.

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4.

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

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evidence, Plaintiff shall, within thirty (30) court days of this Order, file with this Court a motion

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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:
a.

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

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contained in 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 6a

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above, with precise references to the applicable portions of the record. This summary shall
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Case 2:20-cv-01536-GMN-EJY Document 18 Filed 01/06/21 Page 3 of 5

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not include medical evidence unrelated to the conditions or ailments upon which Plaintiff’s

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claim or claims of disability are based.

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subparagraph if Plaintiff shall stipulate that the Administrative Law Judge fairly and

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accurately summarized the evidence contained in the administrative record.
c.

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It shall be sufficient compliance with this

With respect to each condition or ailment specified in subparagraph 6a above,

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

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

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ailment, or combination thereof.

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6.

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, within thirty (30) court 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:
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 constitutes

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substantial evidence to support the administrative determination that Plaintiff is not entitled

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to the benefits in question. This summary shall not include medical evidence unrelated to

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conditions or ailments upon which Plaintiff’s claim or claims of disability are based. It shall

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

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Administrative Law Judge fairly and accurately summarized the evidence contained in the

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record.

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b.

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

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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 entitled to the benefits in question. It shall be sufficient

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compliance with this subparagraph if 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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Case 2:20-cv-01536-GMN-EJY Document 18 Filed 01/06/21 Page 4 of 5

c.

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

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by Plaintiff. If Defendant believes Plaintiff’s summaries are inaccurate, Defendant shall set

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

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order to make the summaries accurate.
d.

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

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be understood in order to determine whether the Administrative Law Judge’s decision is

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supported by substantial evidence.

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7.

The motions filed by Plaintiff and Defendant pursuant to paragraphs 6 and 7 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 agreed to the accuracy of the summaries supplied

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by Defendant in response to subparagraphs 7a and 7b of this Order, and to all definitions of medical

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terms supplied by Defendant with respect to subparagraph 7d of this Order, unless within twenty

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(20) court days after being served with Defendant’s motion to affirm, Plaintiff files and serves a

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reply or reply 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

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record) in order to make the summaries accurate; and/or
c.

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Any definitions of the medical terms that Plaintiff contends are more accurate

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than the definitions supplied by Defendant.

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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

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

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

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comprehended.

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Case 2:20-cv-01536-GMN-EJY Document 18 Filed 01/06/21 Page 5 of 5

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 as to whether each such illegible page contains information

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relevant to 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 78-1, by one of the parties

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within ten (10) court days following the filing of the last document required by this Court. Even if

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one or both of the parties requests oral argument, the final decision as to whether oral argument is

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warranted remains with the Court.

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11.

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.

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IT IS SO ORDERED.

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DATED THIS 6th day of January, 2021.

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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE

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