Perry v. Social Security, Commissioner of

Filing 9

ORDER Denying without Prejudice Plaintiff's 7 Motion to Amend/Correct--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REGINALD PERRY,
Plaintiff,
v.

Case No. 2:17-cv-12718
District Judge Victoria A. Roberts
Magistrate Judge Anthony P. Patti

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/
ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO AMEND STATEMENT OF CLAIMS (DE 7)
Plaintiff, Reginald Perry, filed this complaint in pro per on August 18, 2017
for judicial review of a social security decision. Plaintiff’s form complaint
includes several sections, including one labeled, “Statement of Claim.” It states:
New evidence that was not available had not been reviewed. Dis[c]
dis[ea]se, inflam[m]ation, pain, numbness and tingling in the feet and
back. No longer able [to] work at all now. Pain medication makes
plaintiff drowsy. Plaintiff has headaches daily and sharp pain running
up his arms.
(DE 1 at 3.) Currently before the Court is Plaintiff’s August 22, 2017 “motion to
amend statement of claims,” by which he seeks to “include a relevant allegation of
[d]ue process violation.” In particular, Plaintiff claims:
Plaintiff's RFC was not fairly considered in accordance with the rules.
Mr. Perry is 61yrs. of age and was [f]ound capable of doing less than
a full line of sedentary work. Without doubt 20 CFR sec. 1567 states

[t]hat "for a finding of a full range of light work one must be able to
perform substantially all of the Requirements of the rule.[”][1] Yet
plaintiff[’]s RFC findings concluded that he could only perform
nearly 6 hrs. [o]f sedentary work performance. Thus plaintiff claims
the ALJ failed to properly apply SSR 201.14 of the Medical
Vocational Guidelines and RFC Grid Rule 2011.01 in error. Error by
the ALJ amounts to a violation of a claimant[’]s Due Process Rights.
(DE 7 at 2.) In sum, Plaintiff’s complaint seems to make a “new and material
evidence” argument under Sentence 6; on the other hand, Plaintiff’s proposed
amendment suggests that the ALJ’s June 15, 2016 decision (DE 1 at 10-20), made
final by the Appeals Council’s June 13, 2017 denial of Plaintiff’s request for
review (DE 1 at 7-9), was erroneous – a Sentence 4 argument.
Upon consideration, Plaintiff’s motion (DE 7) is DENIED WITHOUT
PREJUDICE. Plaintiff may file an amended complaint (1) after his original
complaint has been served and (2) within Rule 15’s provisions for amendments for
“amending as a matter of course.” Fed. R. Civ. P. 15(a)(1). To be clear, “[a] party
may amend its pleading once as a matter of course within: (A) 21 days after
serving it, or (B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1).

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In fact, the definition of light work provides that “[t]o be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities.” 20 C.F.R. § 404.1567(b).

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Moreover, Plaintiff is hereby advised that “[a]ny amendment to a pleading,
whether filed as a matter of course or upon a motion to amend, must, except by
leave of court, reproduce the entire pleading as amended, and may not incorporate
any prior pleading by reference.” E.D. Mich. LR 15.1. In other words,
“[g]enerally, amended pleadings supersede original pleadings.” Hayward v.
Cleveland Clinic Found., 759 F.3d 601, 617 (6th Cir. 2014) (citing 6 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed.2010)).
Thus, should Plaintiff file an amendment to his original complaint after it has been
served, any such amended complaint should be drafted to replace the one
originally filed on August 18, 2017.
IT IS SO ORDERED.

Dated: August 31, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on August 31, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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