2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ***
5 6 JOSE N. AVILA, 7 Plaintiff, 2:21-cv-00546-VCF 8 vs. 9 KILOLO KIJAKAZI, Acting Commissioner of ORDER CONCERNING REVIEW OF 10 Social Security, SOCIAL SECURITY CASES
11 Defendant.
12 13 This action involves the judicial review of an administrative action by the Social Security 14 Administration (hereinafter “SSA”) denying plaintiff’s claim for Social Security benefits. 15 1. This court has jurisdiction pursuant to 42 U.S.C. § 1395FF(b)(1)(A), which incorporates 42 16 U.S.C. § 405(g), and allows for judicial review of a final decision of the SSA. 17 2. Judicial review of the SSA's final decision must be based solely on the administrative record. 18 This court may affirm, modify, or reverse the final decision of the SSA. Under 42 U.S.C. § 405(g), the 19 SSA's final decision will be disturbed only if the factual findings underlying the decision are not supported 20 by substantial evidence or if the decision fails to apply the correct legal standards. Tackett v. Apfel, 180 21 F.3d 1094, 1097 (9th Cir.1999). The findings of the SSA as to any fact shall be conclusive and must be 22 upheld if supported by substantial evidence. 42 U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 459 23 (9th Cir.2001). “Substantial evidence” is “more than a mere scintilla but less than a preponderance; it is 24 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe 25 v. Chater, 108 F.3d 978, 980 (9th Cir.1997). Whether substantial evidence supports a finding is 1 determined from the record as a whole, with the court weighing both the evidence that supports and the 2 evidence that detracts from the ALJ's conclusion. Id. When the evidence can rationally be interpreted in 3 more than one way, the court must uphold the SSA's decision. Id. 4 Accordingly, 5 IT IS HEREBY ORDERED that: 6 1. Defendant shall submit an electronic courtesy copy of the administrative record, under seal, to 7 CM/ECF within seven (7) days of the filing of this Order. The uploaded CAR must be filed in a searchable 8 PDF format with each exhibit linked separately and Optical Character Recognition performed. 9 2. In the event plaintiff intends to request a remand of this case on the basis of new evidence, 10 plaintiff will, within thirty (30) days of the filing of this Order, file a motion to remand in this Court 11 based on new evidence. The new evidence shall be attached to the motion. A copy of the motion and 12 evidence shall be served on:
13 United States Attorney 14 501 South Las Vegas Boulevard South Las Vegas, NV 89101 15
16 3. In the event plaintiff files a motion for remand on the basis of new evidence, the defendant 17 will have until thirty (30) days from the date of service of such motion to file either, (i) a notice of 18 voluntary remand of the case, or (ii) points and authorities in opposition to plaintiff’s motion. If defendant 19 files points and authorities in opposition, plaintiff will have until twenty (20) days from the date of service 20 of such points and authorities to file a reply. 21 4. Under 42 U.S.C. § 405(g), remand for reconsideration of new evidence will not be granted 22 unless the evidence is new and material and there is a showing of good cause for failure to incorporate 23 24 25 1 the evidence into the record at an earlier stage. Therefore, if plaintiff seeks remand for consideration of 2 new evidence, the motion will include a statement of reasons why the new evidence was not incorporated 3 into the record at an earlier stage. 4 5. In the event plaintiff does not file a motion for remand on the basis of new medical evidence, 5 the plaintiff will, within thirty (30) days of receipt of this Order, file with this Court a motion for reversal 6 and/or remand. 7 6. Whenever plaintiff files a motion for reversal and/or remand, which includes issues based on 8 the administrative record, plaintiff’s motion shall include: 9 (a) A specification of each and every condition or ailment, or combination thereof, that 10 allegedly renders plaintiff disabled and is allegedly supported by evidence contained in the 11 administrative record. 12 (b) A complete summary of all medical evidence in the record that supports plaintiff’s claim 13 of disability due to each condition or ailment specified in subparagraph 5(a) above, with 14 precise references to the applicable portions of the record. This summary shall not include 15 medical evidence unrelated to the conditions or ailments upon which plaintiff’s claim or 16 claims of disability are based. 17 It shall be sufficient compliance with this subparagraph if plaintiff shall stipulate that the 18 Administrative Law Judge fairly and accurately summarized the evidence contained in the record. 19 (c) A complete summary of all other evidence adduced at the administrative hearing that 20 supports plaintiff’s claim with precise references to the applicable portions of the record. 21 It shall be sufficient compliance with this subparagraph if plaintiff shall stipulate that the 22 Administrative Law Judge fairly and accurately summarized the evidence adduced at the 23 administrative hearing. 24 (d) A complete but concise statement as to why the record does not contain substantial 25 1 evidence to support the defendant’s claim. 2 7. If defendant has not filed a notice of voluntary remand and the issues in question relate to 3 the administrative record, the defendant, within thirty (30) days after being served with plaintiff’s motion 4 for reversal and/or remand, will file a cross-motion to affirm which will be considered an opposition to 5 plaintiff’s motion. This motion will include: 6 (a) A complete summary of all evidence in the record that the defendant contends constitutes 7 substantial evidence to support the administrative determination that plaintiff is not entitled 8 to the benefits in question. It will be sufficient compliance with this subparagraph if the 9 defendant will stipulate that the Administrative Law Judge fairly and accurately 10 summarized the evidence contained in the record. 11 (b) A complete summary of all testimony adduced at the administrative hearing, including 12 the Administrative Law Judge’s findings, if any, concerning the credibility of witnesses, 13 which the defendant contends constitutes substantial evidence to support the administrative 14 determination that plaintiff is not entitled to the benefits in question. It will be sufficient 15 compliance with this subparagraph if the defendant will stipulate that the Administrative 16 Law Judge fairly and accurately summarized the testimony adduced at the administrative 17 hearing. 18 (c) A statement as to whether there are any inaccuracies in the summaries filed by plaintiff. 19 If the defendant believes plaintiff’s summaries are inaccurate, defendant will set forth what 20 additions or corrections are required (with appropriate references to the record) in order to 21 make the summaries accurate. 22 8.
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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ***
5 6 JOSE N. AVILA, 7 Plaintiff, 2:21-cv-00546-VCF 8 vs. 9 KILOLO KIJAKAZI, Acting Commissioner of ORDER CONCERNING REVIEW OF 10 Social Security, SOCIAL SECURITY CASES
11 Defendant.
12 13 This action involves the judicial review of an administrative action by the Social Security 14 Administration (hereinafter “SSA”) denying plaintiff’s claim for Social Security benefits. 15 1. This court has jurisdiction pursuant to 42 U.S.C. § 1395FF(b)(1)(A), which incorporates 42 16 U.S.C. § 405(g), and allows for judicial review of a final decision of the SSA. 17 2. Judicial review of the SSA's final decision must be based solely on the administrative record. 18 This court may affirm, modify, or reverse the final decision of the SSA. Under 42 U.S.C. § 405(g), the 19 SSA's final decision will be disturbed only if the factual findings underlying the decision are not supported 20 by substantial evidence or if the decision fails to apply the correct legal standards. Tackett v. Apfel, 180 21 F.3d 1094, 1097 (9th Cir.1999). The findings of the SSA as to any fact shall be conclusive and must be 22 upheld if supported by substantial evidence. 42 U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 459 23 (9th Cir.2001). “Substantial evidence” is “more than a mere scintilla but less than a preponderance; it is 24 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe 25 v. Chater, 108 F.3d 978, 980 (9th Cir.1997). Whether substantial evidence supports a finding is 1 determined from the record as a whole, with the court weighing both the evidence that supports and the 2 evidence that detracts from the ALJ's conclusion. Id. When the evidence can rationally be interpreted in 3 more than one way, the court must uphold the SSA's decision. Id. 4 Accordingly, 5 IT IS HEREBY ORDERED that: 6 1. Defendant shall submit an electronic courtesy copy of the administrative record, under seal, to 7 CM/ECF within seven (7) days of the filing of this Order. The uploaded CAR must be filed in a searchable 8 PDF format with each exhibit linked separately and Optical Character Recognition performed. 9 2. In the event plaintiff intends to request a remand of this case on the basis of new evidence, 10 plaintiff will, within thirty (30) days of the filing of this Order, file a motion to remand in this Court 11 based on new evidence. The new evidence shall be attached to the motion. A copy of the motion and 12 evidence shall be served on:
13 United States Attorney 14 501 South Las Vegas Boulevard South Las Vegas, NV 89101 15
16 3. In the event plaintiff files a motion for remand on the basis of new evidence, the defendant 17 will have until thirty (30) days from the date of service of such motion to file either, (i) a notice of 18 voluntary remand of the case, or (ii) points and authorities in opposition to plaintiff’s motion. If defendant 19 files points and authorities in opposition, plaintiff will have until twenty (20) days from the date of service 20 of such points and authorities to file a reply. 21 4. Under 42 U.S.C. § 405(g), remand for reconsideration of new evidence will not be granted 22 unless the evidence is new and material and there is a showing of good cause for failure to incorporate 23 24 25 1 the evidence into the record at an earlier stage. Therefore, if plaintiff seeks remand for consideration of 2 new evidence, the motion will include a statement of reasons why the new evidence was not incorporated 3 into the record at an earlier stage. 4 5. In the event plaintiff does not file a motion for remand on the basis of new medical evidence, 5 the plaintiff will, within thirty (30) days of receipt of this Order, file with this Court a motion for reversal 6 and/or remand. 7 6. Whenever plaintiff files a motion for reversal and/or remand, which includes issues based on 8 the administrative record, plaintiff’s motion shall include: 9 (a) A specification of each and every condition or ailment, or combination thereof, that 10 allegedly renders plaintiff disabled and is allegedly supported by evidence contained in the 11 administrative record. 12 (b) A complete summary of all medical evidence in the record that supports plaintiff’s claim 13 of disability due to each condition or ailment specified in subparagraph 5(a) above, with 14 precise references to the applicable portions of the record. This summary shall not include 15 medical evidence unrelated to the conditions or ailments upon which plaintiff’s claim or 16 claims of disability are based. 17 It shall be sufficient compliance with this subparagraph if plaintiff shall stipulate that the 18 Administrative Law Judge fairly and accurately summarized the evidence contained in the record. 19 (c) A complete summary of all other evidence adduced at the administrative hearing that 20 supports plaintiff’s claim with precise references to the applicable portions of the record. 21 It shall be sufficient compliance with this subparagraph if plaintiff shall stipulate that the 22 Administrative Law Judge fairly and accurately summarized the evidence adduced at the 23 administrative hearing. 24 (d) A complete but concise statement as to why the record does not contain substantial 25 1 evidence to support the defendant’s claim. 2 7. If defendant has not filed a notice of voluntary remand and the issues in question relate to 3 the administrative record, the defendant, within thirty (30) days after being served with plaintiff’s motion 4 for reversal and/or remand, will file a cross-motion to affirm which will be considered an opposition to 5 plaintiff’s motion. This motion will include: 6 (a) A complete summary of all evidence in the record that the defendant contends constitutes 7 substantial evidence to support the administrative determination that plaintiff is not entitled 8 to the benefits in question. It will be sufficient compliance with this subparagraph if the 9 defendant will stipulate that the Administrative Law Judge fairly and accurately 10 summarized the evidence contained in the record. 11 (b) A complete summary of all testimony adduced at the administrative hearing, including 12 the Administrative Law Judge’s findings, if any, concerning the credibility of witnesses, 13 which the defendant contends constitutes substantial evidence to support the administrative 14 determination that plaintiff is not entitled to the benefits in question. It will be sufficient 15 compliance with this subparagraph if the defendant will stipulate that the Administrative 16 Law Judge fairly and accurately summarized the testimony adduced at the administrative 17 hearing. 18 (c) A statement as to whether there are any inaccuracies in the summaries filed by plaintiff. 19 If the defendant believes plaintiff’s summaries are inaccurate, defendant will set forth what 20 additions or corrections are required (with appropriate references to the record) in order to 21 make the summaries accurate. 22 8. The motions filed by plaintiff and defendant pursuant to paragraphs 5, 6 and 7 of this Order, 23 must also contain appropriate points and authorities dealing with the specific legal issues involved in this 24 case, rather than principles of law applicable to Social Security cases in general. 25 1 9. Plaintiff will be deemed to have acceded to the accuracy of the summaries supplied by the 2 || defendant in response to subparagraphs 7(a) and 7(b) of this Order unless within twenty (20) days after 3 || being served with defendant’s motion to affirm plaintiff files and serves a reply brief setting forth: 4 (a) In what manner the summaries are inaccurate; 5 (b) What additions or corrections are required (with appropriate references to the record) in 6 order to make the summaries accurate. 7 10. The motions filed by both plaintiff and defendant must also contain the following: 8 (a) A statement as to whether the transcript of the administrative hearing can be adequately 9 comprehended in spite of the fact that such transcript may contain the words “inaudible” 10 or “unintelligible” in one or more places, and specifying each page, if any, in which 11 testimony relating to the particular issues of this case cannot be adequately comprehended. 12 (b) A specification of each page in the administrative record that is partially or totally 13 illegible, and a statement whether each such illegible page contains information relevant to 14 an understanding of any issue presented in this case. 15 11. Oral argument will be deemed waived and the case shall stand submitted unless 16 argument is ordered by the Court or requested pursuant to Local Rule 78-2, by one of the 17 parties within ten (10) days following the filing of the last document required by this Court. 18 It will be at the Court’s discretion whether oral argument is granted. 19 12. Failure of a party to file a motion or points and authorities required by this Order may 20 || result in dismissal of the action or reversal of the decision of the Commissioner, o£Social Security. 21 DATED this 6th day of October, 2021. fg wt see tigate □□ 22 CAM FERENBACH 33 UNITED STATES MAGISTRATE JUDGE
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