Opinion
Civil Action No. 1:12-cv-03003-AP
02-13-2013
DAVID T. MILEY, Plaintiff, v. Michael J. Astrue, Commissioner of Social Security Defendant.
For Plaintiff : ALAN M. AGEE, P.C. Alan M. Agee #18444 TERESA ABBOTT, P.C. Teresa H. Abbott For Defendant : John F. Walsh United States Attorney J. Benedict García Assistant United States Attorney United States Attorney's Office District of Colorado Alexess D. Rea Special Assistant United States Attorney
JOINT CASE MANAGEMENT PLAN FOR SOCIAL SECURITY CASES
1. APPEARANCES OF COUNSEL AND PRO SE PARTIES
For Plaintiff:
ALAN M. AGEE, P.C.
Alan M. Agee #18444
TERESA ABBOTT, P.C.
Teresa H. Abbott
For Defendant:
John F. Walsh
United States Attorney
J. Benedict García
Assistant United States Attorney
United States Attorney's Office
District of Colorado
Alexess D. Rea
Special Assistant United States Attorney
2. STATEMENT OF LEGAL BASIS FOR SUBJECT MATTER JURISDICTION
The Court has jurisdiction based on section 205(g) of the Social Security Act, 42 U.S.C. 405(g).
3. DATES OF FILING OF RELEVANT PLEADINGS
A. Date Complaint Was Filed: November 15, 2012
B. Date Complaint Was Served on U.S. Attorney's Office: November 21, 2012
C. Date Answer and Administrative Record Were Filed: January 22, 2013
4. STATEMENT REGARDING THE ADEQUACY OF THE RECORD
Upon information and belief, the Plaintiff believes the record is complete and accurate, except as discussed in Paragraph 5 below. To the best of his knowledge, Defendant states that the record is complete and accurate.
5. STATEMENT REGARDING ADDITIONAL EVIDENCE
Plaintiff states that she anticipates filing a MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD AND/OR FOR REMAND FOR CONSIDERATION OF NEW AND MATERIAL EVIDENCE UNDER SENTENCE SIX OF 42 U.S.C. § 405(g) pertaining to the following medical records: Dr. Thomas McIntee's letter dated October 30, 2012 and also with medical records from Stanford University Hospital (23 pages) that were submitted to the Appeals Council on April 2, 2012. Defendant states that he plans to consult with the Appeals Council regarding the April 2, 2012 records to see whether a supplemental transcript containing those records is appropriate. Defendant would not oppose Plaintiff submitting this or other additional evidence with his brief, but cannot stipulate to supplement the certified administrative record with the additional evidence that was not before the ALJ or the Appeals Council. See 42 U.S.C. § 405(g) (sentence three: stating that 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"); contra Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006) (stating that because the Appeals Council "considered" treatment records, the records are a part of the administrative record to be considered by the court when evaluating the ALJ's decision for substantial evidence); Proctor v. Astrue, 665 F.Supp.2d 1243, 1251 (D. Colo. 2009) (citing Chambers v. Barnhart, 389 F.3d 139, 1142 (10th Cir. 2004) ("If the evidence does qualify and the Appeals Council considered it in connection with the claimant's request for administrative review, it becomes part of the record in evaluating the Commissioner's denial of benefits under the substantial-evidence standard.") (emphasis added)). The October 30, 2012 evidence is dated after the Appeals Council denied review and thus cannot be part of the certified administrative record. If Plaintiff submits the additional evidence with his opening brief, the Court could still consider the evidence to determine if it met the criteria of remand under sentence six of 42 U.S.C. 405(g). See Selman v. Califano, 619 F.2d 881, 884-85 (10th Cir. 1980) (court cannot consider additional evidence outside of the administrative record, except to determine whether the case should be remanded under sentence six of 42 U.S.C. § 405(g) for consideration of additional evidence). Defendant would reserve the right to argue that the requirements for sentence six remand were not met.
6. STATEMENT REGARDING WHETHER THIS CASE RAISES UNUSUAL CLAIMS OR DEFENSES
The parties state that this case does not raise unusual claims or defenses.
7. OTHER MATTERS
The parties state that there are no other matters.
8. BRIEFING SCHEDULE
A. Plaintiff's Opening Brief Due: March 25, 2013
B. Defendant's Response Brief Due: April 24, 2013
C. Plaintiff's Reply Brief (If Any) Due: May 9, 2013
9. STATEMENTS REGARDING ORAL ARGUMENT
A. Plaintiff's Statement: Plaintiff requests oral argument.
B. Defendant's Statement: Defendant does not request oral argument.
10. CONSENT TO EXERCISE OF JURISDICTION BY MAGISTRATE JUDGE
Indicate below the parties' consent choice.
A. () All parties have consented to the exercise of jurisdiction of a United States Magistrate Judge.
B. (X) All parties have not consented to the exercise of jurisdiction of a United States Magistrate Judge.
11. AMENDMENTS TO JOINT CASE MANAGEMENT PLAN
THE PARTIES FILING MOTIONS FOR EXTENSION OF TIME OR CONTINUANCES MUST COMPLY WITH D.C.COLO.LCivR 7.1(C) BY SUBMITTING PROOF THAT A COPY OF THE MOTION HAS BEEN SERVED UPON THE MOVING ATTORNEY'S CLIENT, ALL ATTORNEYS OF RECORD, AND ALL PRO SE PARTIES. The parties agree that the Joint Case Management Plan may be altered or amended only upon a showing of good cause.
BY THE COURT:
John L. Kane
U.S. DISTRICT COURT JUDGE
APPROVED: ALAN M. AGEE, P.C. By: s/ Alan M. Agee
Alan M. Agee
512 S. 8th Street
Colorado Springs, CO 80905
719-473-1515
719-473-2880 (facsimile)
ageealanmpc@qwestoffice.net
Attorney for Plaintiff John F. Walsh
United States Attorney
By: s/ Alexess Rea
Special Assistant U.S. Attorney
1001 17th Street
Denver, CO 80202
303-844-7101
303-844-0770 (facsimile)
Alexess.rea@ssa.gov
Attorneys for Defendant