COURTNEY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 17

MEMORANDUM DECISION ON PLAINTIFF'S MOTION TO SUPPLEMENT RECORD granting in part and denying in part 12 Motion to Supplement the Record - By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

SALLY MAE COURTNEY,
Plaintiff
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
Defendant

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No. 2:13-cv-72-DBH

MEMORANDUM DECISION ON PLAINTIFF’S MOTION TO SUPPLEMENT RECORD

In this Social Security appeal, the plaintiff moves to supplement the record with a letter
from her attorney and two letters to the plaintiff’s attorney from a treating licensed clinical social
worker. Plaintiff’s Motion to Supplement the Record (“Motion”) (ECF No. 12) at 1. I grant the
motion in part.
On August 31, 2012, and October 3, 2012, the plaintiff’s attorney submitted the
documents in question to the Appeals Council. Id. at 1. The letter at issue was directed to the
administrative law judge and dated September 29, 2011. Id. at 2. The hearing before the
administrative law judge was held on September 21, 2011. ECF No. 12-1 at [5]. His decision is
dated October 12, 2011. Administrative Record (ECF No. 9-2) at 36. The Appeals Council
declined to review the records in question because “[t]his new information is about a later time”
after October 12, 2011. Id. at 2.

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Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin is substituted as the defendant in this matter.

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The defendant does not object to the addition of the attorney’s letter to the record,
Defendant’s Re[sp]onse to Plaintiff’s Motion to Supplement the Record (ECF No. 14) at 2, and,
therefore, the motion is granted as to that document.
The other records at issue are two letters to the plaintiff’s attorney from Jennifer C.
Wood, a licensed clinical social worker, who began treating the plaintiff on September 28, 2011,
one week after the hearing before the administrative law judge. ECF 12-1 at [1], [3]. “[T]he
official record closes once the administrative law judge issues his or her decision regardless of
whether it becomes our final decision.” 20 C.F.R. § 405.360. In this case, therefore, the official
record was closed well before Wood’s records were submitted.
When additional evidence is submitted to the Appeals Council, as was the case here,
Motion at 1, it will be considered only “where it relates to the period on or before the date of the
hearing decision, and only if you show that there is a reasonable probability that the evidence . . .
would change the outcome of the decision[.]” 20 C.F.R. § 405.401(c). The plaintiff contends
that Wood’s records “discuss treatment of the Plaintiff beginning 9/28/11, which is before the
ALJ decision[.]” Motion at 1.
It is true that Wood apparently began treating the plaintiff two weeks before the
administrative law judge’s opinion was issued. However, in the letters Wood makes no attempt
to diagnose the plaintiff retrospectively nor does she indicate when her diagnoses would first
have been applicable. More important, perhaps, is the fact that the plaintiff offers no explication
of how the letters were likely to have changed the outcome of the commissioner’s decision.
Even if this were not the case, the plaintiff has also failed to demonstrate the additional
requirement imposed by 20 C.F.R. § 405.401(c): that an action of the defendant misled her; that
she had a physical, mental, educational, or linguistic limitation that prevented her from

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submitting the evidence earlier; or that some other unusual, unexpected, or unavoidable
circumstance beyond her control prevented her from submitting the evidence earlier.
The plaintiff attempts to avoid this omission by contending that the Appeals Council did
consider Wood’s letters, thus making them part of the record, despite the fact that the Appeals
Council did not include these letters in the recitation of “additional evidence” that it
“considered,” Administrative Record at 1 & 5, but rather addressed them separately, concluding
that they “d[id] not affect the decision about whether you were disabled beginning on or before
October 12, 2011.”

Id. at 2.

If accepted, the plaintiff’s interpretation would allow any

disappointed applicant for Social Security benefits to begin treatment with a new provider after
the administrative hearing and submit records from that provider to the Appeals Council and,
absent consideration by the Council, thereby obtain remand of his or her claim. That is not a
reasonable interpretation of the relevant Social Security regulations, and the plaintiff cites no
authority to support her interpretation.
For the foregoing reasons, the plaintiff’s motion is GRANTED as to the letter dated
September 29, 2011, from the plaintiff’s lawyer to the administrative law judge, and otherwise
DENIED.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 18th day of September, 2013.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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