Schofield v. Berryhill

Filing 20

ORDER denying 15 Plaintiff's Motion to Supplement the Record by Judge J Richard Creatura.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROBERT W. SCHOFIELD,

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Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

CASE NO. 13-cv-5228-JRC
ORDER DENYING PLAINTIFF’S
MOTION TO SUPPLEMENT THE
RECORD

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United
States Magistrate Judge, ECF No. 6). This matter is before the Court on plaintiff’s motion

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to supplement the record (see ECF No. 15). Defendant has filed a response (see ECF No.
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17).
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ORDER DENYING PLAINTIFF’S MOTION TO
SUPPLEMENT THE RECORD - 1

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After considering and reviewing the record, the Court concludes that plaintiff’s

2 motion shall be denied.
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Plaintiff moves the Court to supplement the record, seeking the addition of the
following documents:
1. June 27, 2012 correspondence by plaintiff’s counsel to the Tacoma district office;
2. Fee agreement dated June 22, 2012;
3. Identifying Information for Possible Direct Payment of Authorized Fees, SSA1695;
4. Authorization to Disclose Information to the SSA, SSA-827;
5. SSA Consent for Release of Information, SSA-3288;
6. Letter to the Appeals Council dated June 29, 2012 (with enclosures);
7. Fax of December 12, 2012 to the Appeals Council (with enclosures); and
8. Fax of January 14, 2013 to the Appeals Council (with enclosures).

11 (see Motion, pp. 2-3, and attached Exhibits).
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Defendant responds that this Court’s jurisdiction is limited to reviewing the

13 pleadings and the transcript of record (see Response, ECF No. 17, pp. 1-2 (citing 42
14 U.S.C. § 405(g), sentence four)).
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Although plaintiff may contend that this evidence should have been made part of

16 the record, defendant argues that this new evidence may be added to the record now, only
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following a sentence six remand subsequent to a showing of materiality and a showing of
good cause for the failure to incorporate such evidence into the record in a prior

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proceeding (see id., p. 2 (citing 42 U.S.C. § 405(g); Shalala v. Schaefer, 509 U.S. 292,
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296-97 (1993))). Defendant also contends that such new evidence only is material if it
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may change the outcome and bears directly on the matter before the Court (see id. (citing
Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001)).

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ORDER DENYING PLAINTIFF’S MOTION TO
SUPPLEMENT THE RECORD - 2

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Defendant contends that plaintiff has not demonstrated that the new evidence is

2 material, and contends that this new evidence is not relevant to any of plaintiff’s
3 arguments presented to this Court on appeal of the ALJ’s written decision. Defendant
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also contends that this new evidence is mentioned only in the procedural history section
of his Opening Brief (see ECF No. 15).

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Finally, defendant contends that even if the new evidence established a procedural
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error on the part of the Appeals Council, no harm has been established that is relevant to
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the outcome of the case (see Response, ECF No. 17, p. 3).
Because of the persuasiveness of defendant’s arguments, and controlling 9th

11 Circuit authority regarding this subject, as noted above, the Court hereby DENIES
12 plaintiff’s motion to supplement the record.
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Dated this 16th day of September, 2013.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER DENYING PLAINTIFF’S MOTION TO
SUPPLEMENT THE RECORD - 3