BIRKNER v. COLVIN

Filing 22

ORDER granting in part and denying in part 11 Plaintiff's Motion for Summary Judgment and denying 18 Defendant's Motion for Summary Judgment, and the case is remanded for further consideration in light of this Order. Signed by Judge Alan N. Bloch on 09/29/2014. (dpo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LISA BIRKNER,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN, ACTING
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)

Civil Action No. 13-103-E

O R D E R
AND NOW, this 29th day of September, 2014, upon
consideration of Defendant’s Motion for Summary Judgment (Doc.
No. 18) filed in the above-captioned matter on November 26,
2013,
IT IS HEREBY ORDERED that said Motion is DENIED.
AND, further, upon consideration of Plaintiff’s Motion for
Summary Judgment (Doc. No. 11) filed in the above-captioned
matter on September 9, 2013,
IT IS HEREBY ORDERED that said Motion is GRANTED IN PART
and DENIED IN PART.

It is GRANTED to the extent that it seeks

remand to the Commissioner of Social Security (“Commissioner”)
for further consideration and DENIED in all other respects.
Accordingly, this matter is hereby remanded to the Commissioner

1

for further evaluation under sentence four of 42 U.S.C. § 405(g)
in light of this Order.
Pursuant to Section 405(g), when judicial review of a
social security decision is sought, the Commissioner must file
with its answer a certified copy of the transcript of the record
including the evidence upon which the decision being challenged
was based.

When material information from the administrative

proceedings is omitted from the transcript when filed before the
district court, it prevents meaningful judicial review and
warrants a remand.

See Hippensteel v. Soc. Sec. Admin., 302 F.

Supp. 2d 382 (M.D. Pa. 2001).

Unfortunately, that is the case

here.
The short answer to the question of what is wrong with the
transcript is that Exhibit 11F is incomplete.

The long answer,

though, shows the true extent of the problems with this poor
exhibit.

Exhibit 11F apparently is a 151-page exhibit that was

submitted to the administrative law judge (“ALJ”) at or before
the hearing held on May 26, 2011.

(R. 35).

The ALJ’s decision

denying Plaintiff’s claim for disability insurance benefits and
supplemental security income benefits is particularly thorough
and well-written, and includes several citations to specific
page numbers of the exhibits that were presented to him,
including Exhibit 11F.

In fact, Exhibit 11F, as discussed

2

supra, was fairly significant to the ALJ’s decision that
Plaintiff was not entitled to benefits.
When Plaintiff filed this appeal and the administrative
transcript was prepared, Exhibit 11F purportedly occupied pages
438 to 588 of the transcript.1

(R. iii).

However, when the

transcript was first filed in this case on June 24, 2013, a
significant portion of Exhibit 11F was omitted, including pages
1-24 of the exhibit, which would be expected to correspond to
pages 438-61 of the transcript.

This was remedied when the

Government filed an errata on August 12, 2013 adding these pages
to the transcript.

But this was far from the most serious

problem with Exhibit 11F.
Immediately following the later-added pages 438-61, right
in the middle of Exhibit 11F, starting on page 462 of the
transcript, was something called Exhibit 19F,2 which contained
seven pages that belonged nowhere in Exhibit 11F or anywhere
else in the transcript because they related, not to Plaintiff,
but to a completely different person.
here.

The real confusion starts

Plaintiff’s counsel asserted that since these seven

pages, albeit labeled Exhibit 19F, were included in the middle
1

The exhibit, as presented to the ALJ, was itself numbered
1-151. For reasons that will become clear later, it is
important to pay attention to both the exhibit page numbers and
the supposed corresponding transcript page numbers.
2

To further complicate matters, there was already an Exhibit
19F in the administrative transcript. (R. 1347-61).
3

of Exhibit 11F, the ALJ must have treated them as part of that
151-page exhibit.

Ergo, counsel argued that remand was required

since the ALJ must have been referring to these records that
belong to a different person in citing to Exhibit 11F in support
of his decision.

The Government countered by arguing that these

seven pages did, in fact, relate to Plaintiff and that they even
contained her date of birth.

Both attorneys, as it turned out,

were incorrect.
The documents labeled 19F, on even cursory review, refer to
events that happened long after the ALJ rendered his decision
that Plaintiff was not disabled on July 22, 2011.

In fact, the

cover letter that is part of the exhibit shows that they were
submitted, not to the ALJ, but to the Appeals Council on
September 26, 2012.

Considering that the cover letter clearly

states that these documents refer to the other individual,
expressly identified by a different social security number, it
does not appear that these records were even considered by the
Appeals Council as part of this matter.3

Indeed, these documents

appear to be Exhibit 19F in an entirely different case, Civil
No. 13-24.

It can only be assumed, then (if it is safe to

assume anything in this case), that the Commissioner made a
3

The Appeals Council made no mention of this evidence in
denying Plaintiff’s request for review, although it did
reference other evidence submitted after the ALJ’s decision.
(R. 1-7).
4

clerical error by mistakenly including the seven pages in the
record of this case.

Regardless, it is quite apparent that

documents submitted a year after the ALJ’s decision and that
relate to events that had yet to occur were not relied upon by
the ALJ in reaching his decision.

Accordingly, there would have

been absolutely no reason to remand this matter based on the
existence of this material.4

These pages certainly should not

have been there, but they themselves were not the problem.5
The reason why the confusion surrounding Exhibits 11F and
19F is relevant is because, as noted, the ALJ cited extensively
to Exhibit 11F in reaching his conclusion that Plaintiff is not
disabled, particularly in support of his discussion of her drugseeking behavior which weighed heavily in his credibility
determinations.

Although Plaintiff’s claim that the ALJ’s

citations to Exhibit 11F might be referring to the yet-to-exist

4

Just to clarify, it is the ALJ’s decision that a district
court reviews on an appeal of a denial of benefits. Evidence
that was not before the ALJ cannot be considered by a district
court in its determination of whether or not the ALJ’s decision
was supported by substantial evidence, even if it was submitted
to the Appeals Council. See Matthews v. Apfel, 239 F.3d 589,
594 (3d Cir. 2001); Chandler v. Commissioner of Soc. Sec., 667
F.3d 356, 360 (3d Cir. 2011).
5

That said, the Government’s claim that pages 462-68 of the
transcript relate to Plaintiff and identify her by her birthdate
is simply wrong. They do not. While the source of this
confusion is unclear, given that the Government’s brief cites to
pages in the transcript that were not part of the transcript
filed here at the time the brief was filed, the Government may
have been working from a different version of the transcript.
5

Exhibit 19F was obviously not correct, it soon became apparent
that part of this uncertainty was that an additional part of
Exhibit 11F was missing from the administrative transcript filed
with the Court -- pages 25-135.

Specifically, after the

misplaced seven pages called Exhibit 19F, which ended on page
468 of the transcript, there was nothing until page 573 of the
transcript, which picks back up with what is labeled page 136 of
Exhibit 11F.

Many of the ALJ’s citations were to records

contained in this missing material.

So the Court went about

trying to determine what happened to pages 469-572.
On short notice, personnel at the United States Attorney’s
office handling this matter worked hard to quickly obtain and
file the missing pages.

On September 25, 2014, they were able

to file an errata containing pages marked 469-572.

Presumably,

this should have finally corrected the problem, but it did not.
Page 469 of the transcript was not, as might be expected, page
25 of Exhibit 11F, but rather page 32.

Indeed, pages 25-31 of

Exhibit 11F were nowhere to be found, apparently having been
superseded by the seven-page Exhibit 19F containing the medical
records of an innocent bystander.

In other words, rather than

the seven pages of Exhibit 19F merely being dropped in the
middle of Exhibit 11F, they actually replaced seven pages of the
exhibit that apparently was before the ALJ.

Since the page

numbers on the filed transcript now show no gaps, the Court has
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to assume that the seven apparently missing pages of Exhibit 11F
are no longer part of the record.
Were that seven other pages were missing, none of this may
have mattered.

However, as noted, the ALJ, in his thoroughness,

cited not just to Exhibit 11F generally in discussing
Plaintiff’s drug-seeking behavior, but to specific page numbers
of that exhibit as it appeared before him.

Two of his citations

were to pages included in the missing seven -- pages 29 and 31.
As discussed, the 29th and 31st pages of Exhibit 11F, as it now
appears in the transcript, are pages dealing with the third
person’s medical history pertaining to another case.

Again, for

the reasons stated, it is obvious that the ALJ was not referring
to those pages.

Nonetheless, the Court is unable to review two

of the pages upon which the ALJ apparently did rely.
Ultimately, then, the problem is not that the seven pages of
Exhibit 19F were included, but that the seven lost pages of
Exhibit 11F were not.
Despite the fact that the ALJ relied on more than just
those two pages in making his findings and in discussing the
drug-seeking behavior that he found relevant in determining the
validity of Plaintiff’s claimed impairments, the existence of
other evidence does not mean that the missing portion of the
administrative record is not material, given that it was
expressly relied upon by the ALJ.
7

Indeed, the Government, in

its brief, also cites to these pages (calling them pages 466 and
468 – the pages that would have matched up with pages 29 and 31
of Exhibit 11F had they been included in the transcript).

Given

the reliance on this information by both the ALJ and the
Government, the Court finds the missing evidence to be material.
Since the Government failed in its duty to file a complete and
accurate transcript containing all of the material information,
the Court simply cannot determine whether the ALJ’s decision was
supported by substantial evidence.
There is no good reason for the Court to adjudicate this
matter based on such an untrustworthy record.

Accordingly, this

case must be remanded to clarify the record, hopefully by
removing the unwarranted Exhibit 19F and instead providing a
complete and accurate copy of Exhibit 11F.

s/Alan N. Bloch
United States District Judge

ecf:

Counsel of record

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