Kehoe v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 13, 2020
• Docket: 3:19-cv-05953
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 MARTY RODNEY KEHOE,

10 Plaintiff, CASE NO. C19-5953-MAT

11 v. ORDER GRANTING MOTION TO 12 ANDREW M. SAUL, STRIKE AND REFILE CERTIFIED Commissioner of Social Security, ADMINISTRATIVE RECORD 13 Defendant. 14

15 Defendant filed a Motion to Strike and Refile the Certified Administrative Record (Dkt. 16 18), explaining the previously filed record does not contain a transcript of a prior oral hearing (see 17 Dkts. 19, 22). Plaintiff objects to the motion to strike and refile, suggesting defendant seeks to add 18 evidence harmful to plaintiff’s position or helpful to defendant’s argument, stating the transcript 19 was not relied upon or considered in the Administrative Law Judge (ALJ) decision at issue in this 20 case, and arguing the Court lacks authority to grant the relief requested. (Dkts. 20-21.) The Court 21 finds no merit to plaintiff’s objections. 22 Defendant seeks to file a complete copy of a Certified Administrative Record provided by 23 the Office of Appellate Operations to correct an accidental omission of a hearing transcript. This 1 request is both appropriate and necessary. See 42 U.S.C. § 405(g) (“As part of the Commissioner’s 2 answer the Commissioner of Social Security shall file a certified copy of the transcript of the record 3 including the evidence upon which the findings and decision complained of are based.”); see also

4 Hearings, Appeals and Litigation Law Manual (HALLEX), I-4-2-30 (B)(4) (“If a record is not 5 complete, it is not a ‘full and accurate’ record of the proceedings relating to the litigated claim. . 6 . . Such deficiencies may include: . . . [a] missing transcript of oral hearing[.]”) Plaintiff’s 7 suggestion of an improper or ulterior motive on the part of defendant is unexplained, unsupported, 8 and no more than speculative. Also, and as set forth and supported in defendant’s reply, ALJs 9 have access to a claimant’s entire case file, including any prior decisions and associated hearings, 10 in rendering a decision. (See Dkt. 22 at 4-5.) 11 Finally, the cases relied upon by plaintiff in his opposition are distinguishable. See, e.g., 12 Lowry v. Barnhart, 329 F.3d 1019, 1024-25 (9th Cir. 2003) (rejecting Commissioner’s request to 13 supplement record with a letter created after plaintiff filed her opening brief and “conveniently

14 plugg[ing] [a] hole in the record by generating a letter that undercut” plaintiff’s claim: “The district 15 court docket shows that the letter was never made a part of the record. Indeed, it could not have 16 been, because it post-dates not only the notice of appeal but even [the] opening brief on appeal.”); 17 Kuligowski v. Comm’r of Soc. Sec., C18-5906-JLR, 2019 WL 2339973 at *1-2 (W.D. Wash. June 18 3, 2019) (rejecting request to amend record after counsel for Commissioner attested an argument 19 in plaintiff’s opening brief made him question the accuracy of a hearing transcript, counsel listened 20 to audio recording of hearing and requested a new certified transcript “‘highlight[ing] the place 21 where’ he found the inaccuracy[,]” but the Commissioner offered no assurance as to the accuracy 22 of the remainder of the record; concluding that, “[t]o allow the Commissioner to selectively 23 undermine the certification procedure does not serve justice[,]” and that the Social Security 1 Administration, rather than the court, should settle any dispute between the parties as to the 2 accuracy of the transcript); Wetzler v. Colvin, C15-1074-BHS-DWC, 2016 WL 4376635 at *2-3 3 (W.D. Wash. July 11, 2016) (rejecting plaintiff’s request to supplement record with 147 pages of

4 materials, including internal field office notes and correspondence between plaintiff’s counsel and 5 administration employees, where “the Court [had] no way of knowing if all or some of the 6 additional documents were before” the ALJ”), adopted, 2016 WL 4363311 (W.D. Wash. Aug. 16, 7 2016). Unlike those cases, the current matter is akin to the typically unopposed and routinely 8 permitted motions to correct the record that come before this Court. 9 For the reasons stated above, defendant’s Motion to Strike and Refile the Certified 10 Administrative Record (Dkt. 18) is GRANTED. The Court STRIKES the Certified Administrative 11 Record filed on December 20, 2019 (Dkt. 10), and GRANTS defendant leave to refile the Certified 12 Administrative Record. 13 DATED this 13th day of March, 2020.

14 A 15 Mary Alice Theiler 16 United States Magistrate Judge

17 18 19 20 21 22 23