Dilworth v. Commissioner of Social Security

Filing 29

ORDER denying 22 Motion for Summary Judgment; granting 23 Motion to Amend/Correct; finding as moot 25 Motion to revise brief. Defendant shall have 30 days from this date in which to file a responsive brief. Plaintiff will have seven (7) days from the filing of Defendant's brief to file any reply. Signed by Magistrate Judge Jane M. Virden on 12/11/18. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
ABERDEEN DIVISION
ERIC DILWORTH

PLAINTIFF

V.

NO. 1:18CV119-JMV

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

ORDER ON MOTIONS
On October 26, 2018, Plaintiff filed a motion for summary judgment [22]. On
November 1, Plaintiff filed a motion to amend his brief [23]. The same day Plaintiff filed a
motion to revise a brief already submitted. For the reasons set out below, Plaintiff’s motion for
summary judgment is DENIED; Plaintiff’s motion to amend [23] is granted; and Plaintiff’s
motion to revise [25] is deemed moot.
Plaintiff’s stated basis for seeking summary judgment is his claim that the certified
administrative record filed by the Acting Commissioner of Social Security is not “the proper
evidence required by the court” because it is not “text-searchable” and, therefore, does not
comply with the court’s Order or Rule 56 of the Federal Rules of Civil Procedure. As
Defendant points out, summary judgment is only “appropriate if the record discloses ‘that there
is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter
of law.’” See Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993) (citation omitted). Because
Plaintiff points the Court to a putative procedural issue, as opposed to pointing to evidence that
entitles him to entry of judgment in his favor, he has failed to convince the Court that entry of
judgment is appropriate. Furthermore, as is customary in Social Security cases filed in this
district, an Order Directing Filing of Briefs [14] was entered September 14, 2018, which Order
directed Plaintiff to file a memorandum brief that sets out all errors he contends entitle him to
relief. That Order further explained that the issues before the Court would be limited to the

issues properly raised in the briefs and that oral argument would be held before the undersigned.
Based on this, summary judgment motion practice is neither permitted nor necessary. Lastly,
Plaintiff is simply incorrect to the extent he contends the Court’s Order requires that the
administrative record be “text-searchable.” As Defendant states, the electronic copy of the
administrative record filed with the Court does in fact contain a searchable page navigation
toolbar of the PDF reader, as referenced in the Court’s Order.
Next, Plaintiff filed his initial brief [20] on October 19. Then, by his motion to amend
[23] filed November 1, Plaintiff requested leave to amend his brief to comply with the
instructions in the Order Directing the Filing of Briefs on the basis that he had not received that
Order prior to filing his initial brief. The same day, Plaintiff filed his amended brief [24] and a
motion to revise [25] the initial brief. The Court finds that the motion to revise the initial brief
is duplicative of the motion to amend. Because Defendant does not oppose Plaintiff’s request
for leave to amend and for good cause shown, Plaintiff’s brief [24] filed November 1 is deemed
the operative brief for Plaintiff, and Defendant shall have 30 days from this date in which to file
a responsive brief. Plaintiff will have seven (7) days from the filing of Defendant’s brief to file
any reply.
So ORDERED this 11th day of December, 2018.

/s/ Jane M. Virden
U.S. MAGISTRATE JUDGE