Ashley v. Social Security Administration

Filing 17

MEMORANDUM OPINION and ORDER: Signed by the Honorable Jeffrey Cole on 1/7/21. Mailed notice (yt)

Case: 1:20-cv-03978 Document #: 17 Filed: 01/07/21 Page 1 of 3 PageID #:1248

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHLEEN A.,1
Plaintiff,
v.
ANDREW SAUL, Commissioner of
Social Security,
Defendant.

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No. 20 C 3978
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The plaintiff has filed a motion to take discovery in this Social Security appeal – which she
has docketed as “First MOTION to Defer Responsive Pleading Deadline.” She claims she is entitled
to discovery “because there was a second hearing held before a different ALJ then [sic] the
first hearing, and the second ALJ is impartial [sic] and bias [sic] against disabled claimants.” The
Motion states that the Plaintiff is entitled to discovery so that she can “establish the basis to take
discovery to establish the lack of appropriateness of the second hearing and the lack of partiality
[sic] of ALJ Studzinski.” [Dkt. #15].
Discovery is essentially unheard of in these cases. Little Co. of Mary Hosp. v. Sebelius, 587
F.3d 849, 856 (7th Cir. 2009). And for sound and obvious reasons. Judicial review under 42 U.S.C.
§ 405(g) is limited to a closed administrative record to which neither party may add evidence before
the district court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The plaintiff’s single-spaced, pageand-a-half motion is unsupported by citation to any case or statute allowing for discovery in a Social

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Northern District of Illinois Internal Operating Procedure 22 prohibits listing the full name of the
Social Security applicant in an Opinion. Therefore, the plaintiff shall be listed using only their first name and
the first initial of their last name.

Case: 1:20-cv-03978 Document #: 17 Filed: 01/07/21 Page 2 of 3 PageID #:1249

Security appeal to determine whether the ALJ was biased. Thus, any argument that might have
been made is deemed waived. Williams v. Bd. of Educ. of City of Chicago, 982 F.3d 495, 511 (7th
Cir. 2020); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991)(“We repeatedly have
made clear that perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived ....”). Indeed, if the motion were to be granted, it would mean that
henceforth trial by an ALJ could lead in any case to further investigation by way of discovery and
appeals would become but a distant step in a procedure never envisioned by the Congress or the
courts. And all this only for the asking by a Social Security applicant’s lawyer.
Review of the record shows that the second hearing was held because the first ALJ became
unavailable under HALLEX I-2-8-40A (Death, Retirement, Resignation, Illness causing absence
of 20 days or more) and had not completed a draft decision under HALLEX I-2-1-55F2. (R.
14). And so the case was reassigned and a second hearing was convened. The standard of due
process in these matters is violated when an ALJ exhibits bias or animus against the claimant during
a hearing. Davenport v. Astrue, 417 F. App'x 544, 546–47 (7th Cir. 2011); United States v.
Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 386 (7th Cir.2010). Bias cannot be shown
through a mere pattern of rulings by a judicial officer; it requires evidence that the officer had it in
for the party for reasons unrelated to the officer's view of the law. Keith v. Barnhart, 473 F.3d 782,
789 (7th Cir.2007). Plaintiff provides no such evidence and, worse, does not even claim that the ALJ
had any personal enmity toward her. Indeed, she didn’t even attend the second hearing. (R. 36).
The motion [Dkt. #15] is denied.

ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 1/7/21
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