Dawson v. Bowen

136 F.R.D. 618, 1988 U.S. Dist. LEXIS 17617, 1988 WL 235674
CourtDistrict Court, S.D. Ohio
DecidedMarch 4, 1988
DocketNo. C-2-84-1353
StatusPublished
Cited by3 cases

This text of 136 F.R.D. 618 (Dawson v. Bowen) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawson v. Bowen, 136 F.R.D. 618, 1988 U.S. Dist. LEXIS 17617, 1988 WL 235674 (S.D. Ohio 1988).

Opinion

ORDER

TERENCE P. KEMP, United States Magistrate Judge.

In this social security disability action, a dispute has arisen over the proper scope, if any, of the Plaintiff’s ability to gain inf or-[619]*619mation through discovery. The Secretary originally found that Plaintiff did not suffer from a severe impairment. That conclusion was found to lack substantial evidence in support of it, and the case was remanded for a continuation of the sequential evaluation process. Upon remand, the Secretary again denied benefits. After the record of completed remand proceedings was filed in this Court, the Plaintiff served a request for production of documents upon the Secretary, asking to review all documents used by the Secretary or his agents in reaching the decision below, whether or not such documents are a part of the administrative record.

When the Secretary did not produce the requested documents, the Plaintiff filed a motion to compel discovery on September 22, 1987. The Secretary had earlier served upon the Plaintiff a response to the request for production and submitted that response to the Court, along with an additional response, in a document for which leave to file instanter was granted on November 3, 1987. Plaintiff filed a reply memorandum on October 28, 1987 and an affidavit of counsel the same day. Plaintiff also requested an extension of time within which to move for summary judgment and an oral argument on the motion to compel.

Notwithstanding the unresolved nature of the discovery dispute, Plaintiff filed a summary judgment motion on February 10, 1988, and attached copies of documents that had been obtained pursuant to a Freedom of Information Act request. Assuming that the filing of the motion rendered the discovery dispute moot, I dismissed the motion to compel without prejudice to its renewal in an order dated February 12, 1988. On February 19, 1988, Plaintiff filed a motion for reconsideration asserting that the redacted state of the documents received under his Freedom of Information Act request made his request for discovery still important. Although the motion is styled as one for reconsideration, I will construe it as a renewal of the discovery motion and will grant that motion.

The basis of Plaintiffs motion is succinctly set forth in the affidavit of counsel. Although this Court’s review of a final decision of the Secretary denying an application for social security disability benefits is limited to a determination of whether substantial evidence on the record supports the Secretary’s determination, the affidavit states that counsel has received documents used by the Secretary but not made a part of the record in other similar cases, and that he has a good faith belief that such documents exist in this case. The Secretary did not deny the existence of such records (and the documents received by Plaintiff pursuant to his Freedom of Information Act request confirm that such documents exist), but asserted that the only admissible evidence in a social security case is that which is contained in the record. The Secretary also states that to permit such discovery in each social security case would unduly burden the processing of such cases, and that in any individual case where counsel believes that a document has been omitted from the record, an informal request to have the transcript of proceedings supplemented would cure the defect.

The attachments to Plaintiff’s summary judgment motion clearly prove that there are documents other than those appearing as a part of the record that were used by the Appeals Council in some fashion in making the determination that Plaintiff is not entitled to disability benefits. The attached documents consist of a medical opinion from M. Louis Offen, M.D. reviewing the facts of Plaintiff’s case and setting forth conclusions as to some of the medical evidence of record. Portions of the document containing what are described as “predecisional opinions and analysis” were deleted from Dr. Offen’s memorandum. The precise issue raised by Plaintiff’s discovery request is whether the disclosure of any additional portions of this document, or other such documents, if they exist, is reasonably calculated to lead the Plaintiff to evidence admissible in this proceeding. F.K.Civ.P. 26.

Treating the issue strictly as one of allowable discovery, the analysis must begin with the question of what evidence is admissible before this Court in an action seek[620]*620ing review of the Secretary’s denial of disability benefits. If there is no evidence admissible on the issues presented for review, it seems unlikely that any discovery is permitted. “While Rule 26 should not be read narrowly, it plainly precludes [discovery] in those situations where no evidence could be admitted in any event.” Interstate Investors, Inc. v. United States, 287 F.Supp. 374 (S.D.N.Y.1968), aff'd 393 U.S. 479, 89 S.Ct. 707, 21 L.Ed.2d 687 (1969).

It is well-settled law that an action to review the determination of the Secretary is not a trial de novo in the District Court. Domanski v. Celebrezze, 323 F.2d 882 (6th Cir.1963), cert. denied 376 U.S. 958, 84 S.Ct. 980, 11 L.Ed.2d 976 (1964). Evidence other than that contained in the administrative record can be submitted only for the limited purpose of securing a remand to consider newly discovered, material evidence. 42 U.S.C. Section 405(g). Even then, the court does not consider whether that new evidence is sufficient to change the Secretary’s decision, but remands the case so that the Secretary may consider whether the evidence is sufficiently persuasive to change the result of the case. Wilson v. Secretary of H.H.S., 733 F-2d 1181 (6th Cir.1984); Igonia v. Califano, 568 F.2d 1383 (D.C.Cir.1977). Even the Secretary may not introduce evidence that is not part of the certified transcript of the proceedings. Atteberry v. Finch, 424 F.2d 36 (10th Cir.1970).

Applying these principles, several courts have implied that discovery is not available in an action seeking review of a social security disability determination. See, e.g., Igonia v. Califano, supra, at 1389; Pippin v. Richardson, 349 F.Supp. 1365 (M.D.Fla. 1972). In other, similar contexts involving review of agency determinations under either a “substantial evidence” or “some evidence” standard, courts have directly refused to allow discovery. Elm Grove Savings & Loan Ass’n v. Federal Home Loan Bank Bd., 391 F.Supp. 1041 (E.D.Wisc. 1975); Couch v. Udall, 265 F.Supp. 848 (W.D.Okla.1967), aff'd 404 F.2d 97 (10th Cir.1968). The bases of these decisions is that if the record as it exists supports the Secretary’s decision, then consideration of other evidence would not change that result. Conversely, if the record is inadequate to support the decision, additional evidence would not change that result either.

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Cite This Page — Counsel Stack

Bluebook (online)
136 F.R.D. 618, 1988 U.S. Dist. LEXIS 17617, 1988 WL 235674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-bowen-ohsd-1988.