Hunter v. Kijakazi

Filing 21

Special scheduling order concerning review of social security case. Signed by Magistrate Judge Daniel J. Albregts on 11/18/2022. (Copies have been distributed pursuant to the NEF - LOE)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JANEE HUNTER,

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Case No. 2:22-cv-01534-DJA
Plaintiff,

v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security
Administration,

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SPECIAL SCHEDULING ORDER
CONCERNING REVIEW OF
A SOCIAL SECURITY CASE

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

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of 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,

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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.

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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In light of these factors, IT IS HEREBY ORDERED:

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1.

If Plaintiff requests a remand of this case on the basis of new evidence, then

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Plaintiff must, within thirty days of the filing of this Order, file a motion to remand based on new

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evidence. The new evidence must be attached to the motion. A copy of the motion and evidence

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must 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.

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If Plaintiff files a motion for remand on the basis of new evidence, then Defendant

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may file either (i) a notice of voluntary remand of the case, or (ii) points and authorities in

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opposition to Plaintiff’s motion. Defendant’s notice of voluntary remand or opposition must be

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filed within thirty days of service of the motion. If Defendant files points and authorities in

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opposition, Plaintiff has twenty days from the date of service of such points and authorities to file

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a reply.
3.

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Under 42 U.S.C. § 405(g), remand for reconsideration 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. Therefore, if Plaintiff seeks remand

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for consideration of new evidence, the motion must include a statement of reasons why the new

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evidence was not incorporated into the record at an earlier stage.
4.

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

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the Plaintiff must, within thirty days of the filing of this Order, file a motion for reversal and/or

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remand.
5.

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If Plaintiff files a motion for reversal and/or remand, Plaintiff’s motion must

include:
a.

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

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the two, that allegedly renders Plaintiff disabled and is supported by evidence contained in the

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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 with precise references to the

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applicable portions of the record. The summary must not include medical evidence unrelated to

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the conditions or ailments on which Plaintiff’s claim or claims of disability are based.
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 with precise references to the applicable portions of the

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record.
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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 Administrative Law Judge’s decision.
6.

If Defendant has not filed a notice of voluntary remand, within thirty days after

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being served with Plaintiff’s motion for reversal and/or remand, Defendant must file a cross-

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motion to affirm, which will be considered an opposition to Plaintiff’s motion. This motion must

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include:
a.

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

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

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entitled to the benefits in question.
b.

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A complete summary of all testimony adduced at the administrative

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hearing, including the Administrative Law Judge’s findings, if any, concerning the credibility of

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witnesses, which Defendant contends constitutes substantial evidence to support the

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

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A statement as to whether there are any inaccuracies in Plaintiff’s

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summaries. If Defendant believes Plaintiff’s summaries are inaccurate, Defendant must set forth

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

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summaries accurate.

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7.

The motions filed by Plaintiff and Defendant under paragraphs 5 and 6 of this

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Order, respectively, must also contain points and authorities dealing with the specific legal issues

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involved in this case, rather than principles of law applicable to Social Security cases in general.

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8.

Plaintiff will be deemed to have acceded to the accuracy of the summaries

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supplied by Defendant under 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 response

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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

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the record) to make the summaries accurate.
9.

The motions filed by both Plaintiff and Defendant must 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 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 which

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

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Any stipulations by the parties regarding the portions of the record, if any,

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that the parties agree were fairly and accurately summarized by the Administrative Law Judge

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and therefore do not require repetition in the parties’ briefs. Even if the parties agree the entire

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record was fairly and accurately summarized by the Administrative Law Judge, the parties still

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must include sufficient factual background in their briefs to provide the Court with context to

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understand the parties’ arguments.

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10.

Oral argument will be deemed waived and the case will stand submitted unless the

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Court orders otherwise. A party who requests oral argument must file a request under Local Rule

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78-1 within ten days following the filing of the last document required by this Order. It is within

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the Court’s discretion whether to permit oral argument.

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11.

A party’s failure to file a motion or points and authorities required by this Order

may result in dismissal of the action or reversal of the Commissioner of Social Security’s decision
DATED: November 18, 2022
DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE

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