Armstrong v. Commissioner of Social Security

Western District of Texas, txwd-5:2019-cv-01092

ORDER DIRECTING FILING OF BRIEFS. Signed by Judge Richard B. Farrer.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MICHELLE NACOLE ARMSTRONG, § § Plaintiff, § 5-19-CV-01092-DAE-RBF § vs. § § ANDREW SAUL, COMMISSIONER OF § SOCIAL SECURITY; § § Defendant. § ORDER DIRECTING FILING OF BRIEFS Pursuant to 28 U.S.C. § 636(b), Rule 1(h) of Appendix C to the Local Rules, and the Docket Management Order of Cases Seeking Judicial Review of Social Security Decisions entered on October 8, 2019, in the San Antonio Division of the Western District of Texas, this action to review the final decision of the Commissioner of Social Security has been referred for a report and recommendation. Defendant has filed an answer, together with a certified copy of the transcript of the administrative proceedings, and therefore it is now ORDERED that the parties submit briefs in accordance with the following requirements: 1. On or before February 10, 2020, Plaintiff shall file and serve a brief setting forth all errors Plaintiff contends entitle Plaintiff to relief. The brief shall contain the following, under the appropriate headings and in the order here indicated: a. A statement of the case. This statement should indicate briefly the course of the proceeding and its disposition at the administrative level, and it should further set forth a general statement of the facts. The statement of the facts shall include: Plaintiff's age, education, and work experience; a summary of the physical and mental impairments alleged; a brief outline of the medical evidence; and a brief summary of other evidence of record. Each statement of fact shall be followed by a reference to the page in the record containing support for the statement. b. A statement of the exact issues presented for review. Separate issues should be set forth in separate numbered paragraphs. The issues before the Court may be limited to the exact issues properly raised in the parties' briefs. 1 c. An argument. The argument may be preceded by a summary. The argument shall be divided into sections, each section separately treating each issue, numbered to correspond with the statement of issues. The argument should set forth Plaintiff's contentions with respect to the issues presented and reasons therefor. Each contention must be supported by specific reference to the portion of the record relied upon and by citations to statutes, regulations, and cases that support Plaintiff's position. Cases from other districts and circuits should be cited only in conjunction with relevant cases from this jurisdiction, or if on-point authority from this jurisdiction does not exist. If Plaintiff has moved for remand to the Commissioner for further proceedings, the argument in support thereof must set forth good cause for such remand. Furthermore, if the remand is for the purpose of taking additional evidence, such evidence must be attached to the brief, or, if such evidence is in the form of a consultative examination sought at government expense, Plaintiff must make a proffer of the nature of the evidence anticipated to be obtained. d. A short conclusion. The conclusion should concisely state the precise relief sought. 2. Defendant's brief, which should respond specifically to each issue raised by Plaintiff, shall be filed no later than forty-five (45) days after the filing of Plaintiff's brief. Defendant's brief shall conform to the requirements set forth above for Plaintiff's brief, except that a statement of the issues and a statement of the case need not be included unless Defendant is dissatisfied with Plaintiff's respective statements. 3. Plaintiff may serve, file, and submit a brief in reply to the brief of Defendant, within fourteen (14) days after the filing of Defendant's brief. Plaintiff's and Defendant's briefs are limited to twenty (20) pages in length. Plaintiff's reply brief is limited to ten (10) pages in length. These page limits are exclusive of the caption, signature block, any certificate, and accompanying documents. Parties may seek to extend these page limits by filing a motion for leave pursuant to Local Rule CV-7(b), after conferring with the opposing party regarding the need for additional pages. The parties are notified that substantive motion practice—in accordance with Federal Rule of Civil Procedure 12(c) (motion for judgment on the pleadings) and Federal Rule of Civil Procedure Rule 56 (summary judgment)—is not appropriate in this action. While Plaintiff may 2 seek remand as a remedy in Plaintiff's appeal brief, Plaintiff should not file a separate motion to remand or a motion for summary judgment. On or before February 10, 2020, both parties must advise the Court, if they have not already done so, whether they elect to consent, or not consent, to proceed before me, instead of the District Court. If needed, attached is a Consent Form for the parties use. See Local Rule CV- 72. Unless the Court schedules oral argument, the Court's determination will be based on the parties' briefs and the record of proceedings before the Commissioner. In the event Plaintiff fails to timely file a brief, the Court will enter judgment, after the above time limits have expired, on the basis of the Complaint, Answer, and the record of proceedings before the Commissioner. This Briefing Schedule takes precedence over all other such orders that may have been filed previously. If the parties fail to comply with this Order, the Court may in its discretion impose penalties or sanctions. Counsel should be aware that sanctions can include involuntary dismissal for failure to comply with pretrial instructions, as provided by Federal Civil Procedure Rule 41(b). IT IS SO ORDERED. SIGNED this 23rd day of December, 2019. RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION MICHELLE NACOLE ARMSTRONG, § § Plaintiff, § 5-19-CV-01092-DAE-RBF § vs. § § ANDREW SAUL, COMMISSIONER OF § SOCIAL SECURITY; § § Defendant. § CONSENT ADVISORY TO THE CLERK OF COURT The undersigned party in the above captioned case elects as follows (please select only one of the following options): □ I Consent to Proceed Before A United States Magistrate Judge in accordance with provisions of 28 U.S.C. § 636. The undersigned party in the above captioned case waives the right to proceed before a United States District Judge and consents to have a United States Magistrate Judge conduct any and all further proceedings in this case, including rendering a decision, and to order the entry of final judgment. Any appeal shall be taken to the United States Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 636(c)(3). □ I Do Not Consent to Proceed Before A United States Magistrate Judge. The undersigned party in the above captioned case elects not to have this case decided by a United States Magistrate Judge, and prefers that this case proceed before the District Judge. _________________________________________ Party Name (Printed) By: _____________________________________ Signed by Pro Se Party or Attorney _________________________________________ Date