Kuligowski v. Commissioner of Social Security, No. 3:2018cv05906 - Document 29 (W.D. Wash. 2019)
Court Description: ORDER denying Commissioner's 22 Motion for Leave to Supplement the Certified Record; denying Plaintiff's 28 Motion for Leave to File a Surreply. Signed by Judge James L. Robart. (SWT)
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Kuligowski v. Commissioner of Social Security Doc. 29 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 JASON KULIGOWSKI, Plaintiff, 9 10 v. 11 COMMISSIONER OF SOCIAL SECURITY, 12 Case No. C18-5906JLR ORDER DENYING THE COMMISSIONER’S MOTION TO SUPPLEMENT THE CERTIFIED RECORD Defendant. 13 Before the court is the Commissioner’s motion for leave to supplement the 14 Certified Record. (Mot. (Dkt. # 22).) Plaintiff opposes the motion. (Resp. (Dkt. # 25).) 15 16 17 The Commissioner filed the original Certified Record as part of her answer, as required by statute. (Certified Record (Dkt. # 7); 42 U.S.C. § 405(g) (sentence three).) Plaintiff 18 filed an opening brief relying on the Certified Record, including a transcript of a hearing 19 held on March 15, 2017. (Pl. Br. (Dkt. # 12).) 20 The instant motion is based on the Commissioner’s counsel’s declaration. 21 (Phillips Decl. (Dkt. # 23).) Counsel states that, because one of Plaintiff’s opening brief 22 arguments made him question whether the March 2017 hearing transcript was correct, 23 counsel listened to a portion of the audio recording. (Id. at ¶¶ 3-6.) The audio recording ORDER DENYING THE COMMISSIONER’S MOTION TO SUPPLEMENT THE CERTIFIED RECORD - 1 Dockets.Justia.com 1 is not part of the Certified Record. (See generally Certified Record.) After listening to 2 the recording, counsel concluded that the transcript in the Certified Record did not 3 accurately represent the audio recording. (Phillips Decl. ¶¶ 3-6.) Counsel then contacted 4 5 the Social Security Administration to ask for “a more complete transcript, . . . highlight[ing] the place where” he found the inaccuracy. (Id. ¶ 6.) Counsel obtained a 6 new transcript of the March 15, 2017, hearing, and now asks the Court to amend the 7 Certified Record by adding the new transcript. (Id. ¶ 7; Mot. at 1.) 8 This court “has no authority to amend the administrative record.” Wetzler v. 9 10 Colvin, No. C15-1074BHS-DWC, 2016 WL 4376635, at *2 (W.D. Wash. July 11, 2016), 11 report and recommendation adopted, No. C15-1074BHS, 2016 WL 4363311 (W.D. 12 Wash. Aug. 16, 2016). In Wetzler, for example, the plaintiff moved to supplement the 13 administrative record by adding a prior ALJ decision. Id. In recommending a denial of 14 the plaintiff’s request, the court explained that 42 U.S.C. § 405(g) “does not provide the 15 Court with a procedure for amending the administrative record on appeal.” Id. at *3. 16 This principle applies here. 1 17 A. 18 19 Amendment of the Certified Record as a “Pleading” The Commissioner argues that, because the statute governing social security appeals requires the Commissioner to file “a certified copy of the transcript of the record” 20 as part of the Commissioner’s answer, this court should grant leave to amend the 21 22 1 Both parties refer to a recent case in this district in which the Commissioner’s request to supplement the administrative record with a corrected hearing transcript was granted. In that 23 case, however, the request was unopposed and thus the court did not address the issue. See Cox v. Berryhill, C18-5000BAT (W.D. Wash.), Dkt. # 18, 21, 24. ORDER DENYING THE COMMISSIONER’S MOTION TO SUPPLEMENT THE CERTIFIED RECORD - 2 1 Certified Record as a pleading under Federal Rule of Civil Procedure 15(a)(2) “when 2 justice so requires.” (Mot. at 1-2 (quoting 42 U.S.C. § 405(g); Fed. R. Civ. Pro. 3 15(a)(2)); see also W.D. Wash. General Order 05-15 at 2 (“[T]he Commissioner shall file 4 5 the certified administrative record . . . as the Commissioner’s Answer. No separate Answer need be filed.”). However, 42 U.S.C. § 405(g) indicates that a record should not 6 be treated as a pleading. In providing for judicial review, the statute states that “[t]he 7 court shall have power to enter, upon the pleadings and transcript of the record, a 8 9 10 judgment. . . .” 42 U.S.C. § 405(g) (sentence four). By referring separately to the “pleadings” and the “transcript of the record,” the statute indicates that these are separate 11 items even though the transcript must be filed “[a]s part of the Commissioner’s answer.” 12 Id. (sentence three and four). Moreover, pleadings are not evidence, while the transcript 13 of the record must “includ[e] the evidence upon which the findings and decision 14 complained of are based.” Id. (sentence three). 15 Even if the Certified Record were a “pleading” that could be amended under 16 Federal Rule of Civil Procedure 15(a)(2) “when justice so requires,” the court concludes 17 18 that justice does not require granting the Commissioner’s motion. After having previously “certifie[d] that the documents [in the Certified Record] constitute a full and 19 accurate transcript of the entire record of proceedings relating to this case” the 20 Commissioner now avers that the Certified Record is inaccurate. (See Certified Record at 21 22 23 1; Mot. at 1-4.) The Commissioner does not offer any assurance that, aside from the specific inaccuracy identified in the March 15, 2017, hearing transcript, the remainder of ORDER DENYING THE COMMISSIONER’S MOTION TO SUPPLEMENT THE CERTIFIED RECORD - 3 1 the Certified Record is accurate. To allow the Commissioner to selectively undermine 2 the certification procedure does not serve justice. 3 B. Amendment of the Certified Record as an Appellate Record 4 The Commissioner further argues that, because this court serves in an appellate 5 6 capacity for social security disability appeals, the standard for modifying the Certified Record is found in Federal Rule of Appellate Procedure 10(e), which provides as follows: 7 Correction or Modification of the Record 8 9 (1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly. 10 11 12 (2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded: 13 (A) on stipulation of the parties; 14 (B) by the district court before or after the record has been forwarded; or 15 (C) by the court of appeals. 16 17 18 Fed. R. App. P. 10(e). To the extent this rule applies, subsection (1) is relevant to the present case because there is a “difference” between the parties “about whether the record 19 truly discloses what occurred” in the proceedings below. Id. Accordingly, “the 20 difference must be submitted to and settled by” the tribunal below, here the Social 21 Security Administration. Id.; see also United States v. Sanchez-Lopez, 879 F.2d 541, 548 22 (9th Cir. 1989) (“[E]xhibits and papers not filed with the district court or admitted into 23 evidence are not part of the appellate record.”). Logic further supports the conclusion ORDER DENYING THE COMMISSIONER’S MOTION TO SUPPLEMENT THE CERTIFIED RECORD - 4 1 that the tribunal below must settle a dispute between the parties regarding the accuracy of 2 the record for appeal. This court was not present at the March 15, 2017, hearing and has 3 not heard the hearing recording, and thus has no way to determine whether the original 4 5 transcript or the newly offered transcript is more accurate. This is a matter for the tribunal below. 2 6 Accordingly, the court DENIES the Commissioner’s motion for leave to 7 supplement the Certified Record. 8 9 C. Surreply After the parties completed their briefing on the instant motion, Plaintiff filed a 10 11 12 document styled as a motion for leave to file a surreply. 3 (MFS (Dkt. # 28).) The local rules permit a party to file a surreply “strictly limited” to requesting that the court “strike 13 material contained in or attached to a reply brief.” Local Rules W.D. Wash. LCR 7(g), 14 7(g)(2). “Extraneous argument or a surreply filed for any other reason will not be 15 considered.” Id. at 7(g)(2). The issues raised in Plaintiff’s motion do not relate to a 16 motion to strike and are therefore inappropriate for a surreply. (See generally MFS.) 17 Accordingly, the court DENIES Plaintiff’s motion for leave to file a surreply. 18 D. 19 Conclusion For the foregoing reasons, the court DENIES the Commissioner’s motion for leave 20 21 2 In the reply brief, the Commissioner argues that this court should not “proceed to decide this 22 case on an inaccurate record. . . .” (Reply (Dkt. # 27) at 3.) Neither party, however, has requested a remedy that is within the court’s authority under 42 U.S.C. § 405(g). 23 3 The local rules specify that a party “must file a notice of intent to file a surreply,” not a motion for leave to file a surreply. See Local Rules W.D. Wash. LCR 7(g)(1). ORDER DENYING THE COMMISSIONER’S MOTION TO SUPPLEMENT THE CERTIFIED RECORD - 5 1 to supplement the Certified Record (Dkt. # 22) and DENIES Plaintiff’s motion for leave 2 to file a surreply (Dkt. # 28). 3 4 5 6 DATED this 3rd day of June, 2019. A JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER DENYING THE COMMISSIONER’S MOTION TO SUPPLEMENT THE CERTIFIED RECORD - 6
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