Barbera v. Commissioner of the Social Security Administration

Filing 37

ORDER - IT IS ORDERED denying Plaintiff's "Notice & Motion for Discovery" (Doc. 23 ). IT IS FURTHER ORDERED granting Plaintiff's "Motion to Verify Timeliness of Defendant's Answer" (Doc. 28 ) to the extent set fo rth herein. IT IS FURTHER ORDERED construing Plaintiff's "Motion for Remand so that New Evidence Can Be Considered, & Counterarguments to ECF No. 27 , Defendant's Response to ECF No. 23 & ECF No. 26 " (Doc. 29 )" as Plaintiff's Opening Brief. The Clerk of Court shall amend the docket accordingly. (See document for complete details). Signed by Magistrate Judge Eileen S Willett on 4/25/18. (SLQ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Joseph Michael Barbera,

No. CV-17-03862-PHX-ESW

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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This Order sets forth the Court’s rulings on three pending Motions (Docs. 23, 28,

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29).
I. DISCUSSION

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A. Plaintiff’s “Notice & Motion for Discovery” (Doc. 23)

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In his March 9, 2018 filing (Doc. 23), Plaintiff requests that the Court allow him to

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conduct discovery. For the following reasons, the Court will deny Plaintiff’s request.
The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. §
405(g). Section 405(g) provides:
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party, . . . may obtain a review of such decision by a civil
action . . . . Such action shall be brought in the district court
of the United States for the judicial district in which the
plaintiff resides . . . . As part of the Commissioner’s answer,
the Commissioner of Social Security shall file a certified copy
of the transcript of the record including the evidence upon

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which the findings and decision complained of are based. The
court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing
the
decision
of
the
Commissioner
of Social Security, with or without remanding the cause for a
rehearing.
The
findings
of
the
Commissioner
of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . . The court may . . . at any
time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into
the record in a prior proceeding . . . .

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While § 405(g) does not explicitly preclude discovery, the Court’s review is

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generally limited to the administrative record. See Brown v. Sullivan, 916 F.2d 492, 494

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(9th Cir. 1990) (stating that “discovery is not ordinarily available in social security

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matters”); Higbee v. Sullivan, 975 F.2d 558, 561-62 (9th Cir. 1992) (“An adequate

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hearing record is indispensable because a reviewing court may consider only the

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Secretary’s final decision, the evidence in the administrative transcript on which the

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decision was based, and the pleadings.”); Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir.

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2000) (“As in other administrative law contexts, judicial review in cases under

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the Social Security Act is limited to a review of the administrative record for a

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determination of whether the Commissioner’s decision is supported by substantial

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evidence in the record.”); Papendick v. Sullivan, 969 F.2d 298, 302 (7th Cir. 1992) (“It is

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clear from the statute that a district court may not consider evidence outside the certified

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record. But that is what Papendick’s discovery requests sought. The court, therefore, did

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not abuse its discretion.”).

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The Court does not find good cause to allow Plaintiff to conduct discovery in this

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case. In due course, the Court will decide Plaintiff’s request presented in his Motion for

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Remand (Doc. 29) that the Court remand the matter to the Commissioner for

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consideration of new evidence. Plaintiff’s “Notice & Motion for Discovery” (Doc. 23)

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will be denied.

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B. Plaintiff’s “Motion to Verify Timeliness of Defendant’s Answer” (Doc. 28)

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In a March 22, 2018 Motion (Doc. 28), Plaintiff requests that the Court verify

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whether Defendant’s Answer (Doc. 24) filed on March 12, 2018 is timely. The Court

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will grant Plaintiff’s Motion (Doc. 28) to the extent set forth herein.

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Federal Rule of Civil Procedure 12(a)(2) provides that a “United States, a United

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States agency, or a United States officer or employee sued only in an official capacity

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must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after

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service on the United States attorney.” The Summons and Complaint were served on the

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United States Attorney on January 9, 2018. (Doc. 12). As Defendant correctly states,

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sixty days from January 9, 2018 is Saturday, March 10, 2018. (Doc. 31 at 2). In

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accordance with Federal Rule of Civil Procedure 6(a)(1)(C), the answering deadline was

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extended to Monday, March 12, 2018. Therefore, Defendant’s Answer (Doc. 24) filed on

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March 12, 2018 is timely.

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Finally, contrary to Plaintiff’s assertion (Doc. 34 at 3), Defendant timely served

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the Answer on Plaintiff as it was mailed to Plaintiff on March 12, 2018. (Doc. 28 at 6;

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Doc. 34 at 5). Federal Rule of Civil Procedure 5(b)(2)(C) provides that when service is

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made by mail to the person’s last known address, “service is complete upon mailing.”

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C. Plaintiff’s “Motion for Remand so that New Evidence Can Be Considered,
& Counterarguments to ECF No. 27, Defendant’s Response to ECF No. 23
& ECF No. 26” (Doc. 29)

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Local Rule of Civil Procedure 16.1 and the Court’s Scheduling Order (Doc. 3) set

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forth a briefing procedure to be followed in this matter. The parties are required to

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follow that briefing procedure “rather than filing motions/cross-motions for summary

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judgment.” LRCiv 16.1.

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On March 27, 2018, Plaintiff filed a “Motion for Remand so that New Evidence

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Can Be Considered, & Counterarguments to ECF No. 27, Defendant’s Response to ECF

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No. 23 & ECF No. 26” (Doc. 29).

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Plaintiff’s Motion for Remand (Doc. 29) is an unauthorized filing under LRCiv 16.1 and

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the Court’s Scheduling Order, the Court may strike it from the record. See Fed R. Civ. P.

Defendant has responded (Doc. 31). Because

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16(f), 37(b)(2)(A). However, in the interest of judicial economy, the Court will instead

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construe Plaintiff’s Motion for Remand (Doc. 29) as Plaintiff’s Opening Brief.

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II. CONCLUSION

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Based on the foregoing,

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IT IS ORDERED denying Plaintiff’s “Notice & Motion for Discovery” (Doc.

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23).
IT IS FURTHER ORDERED granting Plaintiff’s “Motion to Verify Timeliness
of Defendant’s Answer” (Doc. 28) to the extent set forth herein.

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IT IS FURTHER ORDERED construing Plaintiff’s “Motion for Remand so that

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New Evidence Can Be Considered, & Counterarguments to ECF No. 27, Defendant’s

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Response to ECF No. 23 & ECF No. 26” (Doc. 29)” as Plaintiff’s Opening Brief. The

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Clerk of Court shall amend the docket accordingly.

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Dated this 25th day of April, 2018.

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