Swilley v. Social Security, Commissioner of

Filing 22

OPINION AND ORDER DENYING Plaintiff's 14 Motion to File Medical Records and DENYING 15 Motion for a Physical Hearing--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERMAR TRAMEL
SWILLEY,
Case No. 2:20-cv-11404
District Judge Linda V. Parker
Magistrate Judge Anthony P. Patti

Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/

OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO FILE
MEDICAL RECORDS (ECF No. 14) AND MOTION FOR A PHYSICAL
HEARING (ECF No. 15)
On April 30, 2020, Plaintiff Jermar Tramel Swilley, without the assistance
of counsel, filed this action under 42 U.S.C. § 405(g) for review of a final decision
of the Commissioner of Social Security. (ECF No. 1.)1 Before the Court for
consideration are Plaintiff’s November 24, 2020 motion to file medical records
(ECF No. 14) and Plaintiff’s December 23, 2020 motion for a physical hearing in
front of judges (ECF No. 15).

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Although Plaintiff asserts in his complaint that he filed applications for both
social security disability and SSI benefits (ECF No. 1, PageID.2), it appears from
the transcript filed by the Commissioner on December 29, 2020, that only an
application for SSI benefits is at issue here (see ECF No. 17).

For the reasons that follow, Plaintiff’s motion to file medical records (ECF
No. 14) is DENIED. This Court generally considers only the medical records
before the Administrative Law Judge (ALJ) at the time of the hearing decision, and
Defendant the Commissioner of Social Security bears responsibility for filing those
medical records, which it did here on December 29, 2020 (ECF No. 17). See
Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 838-39 (6th Cir. 2016) (evidence
submitted to the Appeals Council after an ALJ’s decision is not considered part of
the record for purposes of a district court’s review); 42 U.S.C. § 405(g) (“As part
the Commissioner’s answer the Commissioner of Social Security shall file a
certified copy of the transcript of the record including the evidence upon which the
findings and decision complained of are based.”). Although Plaintiff states in his
motion that the records requested therein were “never use[d] as I ask the Michigan
Department of Corrections Diagnosed the Pla[i]ntiff Disable, and the Michigan
Deapartment [sic] of Corrections parole Board and Detroit Parole Officer . . . told
me to[] apply for Social Security” (ECF No. 14, PageID.77), he has given the
Court no indication that the transcript subsequently filed by the Commissioner
(ECF No. 17) lacks any of the medical records before the ALJ or the Appeals
Council at the time of their decisions. Nor does Plaintiff argue that the records
requested amount to new evidence that meets the established legal criteria for a
Sentence Six remand. See Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (under
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sentence six of 42 U.S.C. § 405(g), “the court remands because new evidence has
come to light that was not available to the claimant at the time of the administrative
proceeding and that evidence might have changed the outcome of the prior
proceeding”); Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148-49 (6th Cir. 1996)
(the Court can remand for further administrative proceedings pursuant to Sentence
Six “[i]f a claimant shows that the evidence is new and material, and that there was
good cause for not presenting it in the prior proceeding.”) (citing 42 U.S.C. §
405(g)); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (for the purposes of a
remand under Sentence Six, evidence is new “only if it was ‘not in existence or
available to the claimant at the time of the administrative proceeding”’) (quoting
Sullivan v. Finklestein, 496 U.S. 617, 626 (1990)).
Plaintiff’s motion for a physical hearing (ECF No. 15) is also DENIED. As
a result of the COVID-19 pandemic, the Court is conducting most of its hearings
via Zoom videoconference technology. Further, I only consider granting oral
argument in Social Security cases if the parties consent to my full adjudication.
See Magistrate Judge Patti’s Practice Guidelines (“Social Security cases generally
seek a judicial review of the administrative agency’s final decision denying
benefits. Oral arguments are not held unless the parties give written consent to full
adjudication before a Magistrate Judge pursuant to 28 U.S.C. § 636. In such cases,
the Court generally will hold oral argument upon its own volition. Parties should
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not, however, request or expect oral argument.”). See also E.D. Mich. Local Rule
73.1(c) (consent form for adjudication by magistrate judge not accepted unless all
parties agree and sign.)2
IT IS SO ORDERED.
Dated: January 11, 2021
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

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The attention of the parties is drawn to Fed. R. Civ. P. 72(a), which provides a
period of fourteen (14) days after being served with a copy of this order within
which to file objections for consideration by the district judge under 28 U.S.C. §
636(b)(1).
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