Spence v. Commissioner of Social Security

Filing 14

ORDER - IT IS THEREFORE ORDERED THAT:1. Plaintiff's counsel shall provide any of the above-mentioned exhibits in his possession to Defendant on or before August 15, 2012. If Plaintiffs counsel does not possess any of the above-mentioned exhibits , he shall inform Defendant of this fact, in writing, on or before August 15, 2012; 2. Defendant shall thereafter obtain any remaining medical evidence necessary to reconstruct the administrative record, and prepare the certified administrative recor d on or before November 15, 2012; 3. Defendant shall file a status report indicating efforts taken toreconstruct the administrative record on or before October 1, 2012; and, 4. Defendant's Motion to Remand (Doc. 12 ) is DENIED, in part, to theextent it seeks remand for a de novo hearing and new decision, and DENIED as moot, in part, due to the fact this case remains remanded to reconstruct the administrative record. Signed by Magistrate Judge Sharon L Ovington on 8/3/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LORA L. SPENCE,
Plaintiff,

:
:
Case No. 3:11cv00341

vs.

:

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

:
:

ORDER

This social security case was previously before the Court upon Defendant’s
Motion to Remand pursuant to Sentence Six of 42 U.S.C. § 405(g) (Doc. #7), Plaintiff
Lora L. Spence’s Response in Opposition (Doc. #8), and the record as a whole.
Defendant requested remand due to its inability to locate certain exhibits necessary to
prepare the certified administrative record in this case. The Court Ordered the case
remanded to allow Defendant the opportunity to continue to search for the missing
materials, “and if these efforts prove unsuccessful, to reconstruct the administrative
record, and prepare the certified administrative record . . . .” (Doc. #9). Defendant was
also required to file a memorandum indicating efforts taken to comply with the Court’s
Order. The case is now before the Court upon Defendant’s Response and Motion to
Remand (Doc. #12), Plaintiff’s Reply (Doc. #13), and the record as a whole.

Based on the recent search conducted by Defendant, the Court has been informed
Exhibits 34F through 50F have been obtained, but “Exhibits 51F through 73 could not be
replicated through such means, nor have such Exhibits been located.” (Doc. #12 at 6).
Defendant contends that it “has made a good faith effort to locate the missing exhibits,
and has exhausted all possible avenues to reconstruct the administrative record.” (Id.).
As a result, Defendant again seeks to conduct a de novo hearing and to issue a new
decision. (Id. at 7). Although Defendant appears to have made a “good faith” effort to
locate the missing exhibits, merely contacting Plaintiff’s counsel regarding the remaining
missing exhibits – while an appropriate first step – is not exhaustion of “all possible
avenues to reconstruct the administrative record.” (Id. at 6); see also 42 U.S.C. § 405(d).
This case was remanded on April 25, 2012, with specific instructions to reconstruct the
record “on or before July 2, 2012.” When the only action taken to reconstruct the record
appears to be contacting Plaintiff’s counsel less than a week before the July 2nd deadline,
questions arise as to the extent of Defendant’s efforts to fully comply with this Court’s
Order. Defendant made no indication, for example, that any attempt was made to obtain
the missing records directly from Plaintiff’s medical providers.
Based on the representations of Defendant, it appears the only exhibits that must
be obtained to reconstruct the administrative record are those marked 51F through 73F.
(Doc. #12 at 6). Thus, it continues to remain unnecessary to remand this matter for a de
novo hearing and new decision. This case therefore remains remanded for the limited
purpose of reconstructing the administrative record, in accordance with the directions and
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deadlines set forth below.
Failure of either party to comply with this Order may result in the imposition of
sanctions.
IT IS THEREFORE ORDERED THAT:
1.

Plaintiff’s counsel shall provide any of the above-mentioned exhibits in his
possession to Defendant on or before August 15, 2012. If Plaintiff’s
counsel does not possess any of the above-mentioned exhibits, he shall
inform Defendant of this fact, in writing, on or before August 15, 2012;

2.

Defendant shall thereafter obtain any remaining medical evidence necessary
to reconstruct the administrative record, and prepare the certified
administrative record on or before November 15, 2012;

3.

Defendant shall file a status report indicating efforts taken to reconstruct the
administrative record on or before October 1, 2012; and,

4.

Defendant’s Motion to Remand (Doc. #12) is DENIED, in part, to the
extent it seeks remand for a de novo hearing and new decision, and
DENIED as moot, in part, due to the fact this case remains remanded to
reconstruct the administrative record.

August 3, 2012
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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