United States District Court, D. Arizona
S. WILLETT UNITED STATES MAGISTRATE JUDGE.
Order sets forth the Court's rulings on three pending
Motions (Docs. 23, 28, 29).
Plaintiff's “Notice & Motion for
Discovery” (Doc. 23)
March 9, 2018 filing (Doc. 23), Plaintiff requests that the
Court allow him to conduct discovery. For the following
reasons, the Court will deny Plaintiff's request.
Court has jurisdiction to review the ALJ's decision
pursuant to 42 U.S.C. § 405(g). Section 405(g)
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party, . . . may obtain a review of such decision by a civil
action . . . . Such action shall be brought in the district
court of the United States for the judicial district in which
the plaintiff resides . . . . As part of the
Commissioner's answer, the Commissioner of Social
Security shall file a certified copy of the transcript of the
record including the evidence upon which the findings and
decision complained of are based. The court shall have power
to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without
remanding the cause for a rehearing. The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . . The
court may . . . at any time order additional evidence to be
taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding . . . .
§ 405(g) does not explicitly preclude discovery, the
Court's review is generally limited to the administrative
record. See Brown v. Sullivan, 916 F.2d 492, 494
(9th Cir. 1990) (stating that “discovery is not
ordinarily available in social security matters”);
Higbee v. Sullivan, 975 F.2d 558, 561-62 (9th Cir.
1992) (“An adequate hearing record is indispensable
because a reviewing court may consider only the
Secretary's final decision, the evidence in the
administrative transcript on which the decision was based,
and the pleadings.”); Harman v. Apfel, 211
F.3d 1172, 1177 (9th Cir. 2000) (“As in other
administrative law contexts, judicial review in cases under
the Social Security Act is limited to a review of the
administrative record for a determination of whether the
Commissioner's decision is supported by substantial
evidence in the record.”); Papendick v. Sullivan,
969 F.2d 298, 302 (7th Cir. 1992) (“It is clear
from the statute that a district court may not consider
evidence outside the certified record. But that is what
Papendick's discovery requests sought. The court,
therefore, did not abuse its discretion.”).
Court does not find good cause to allow Plaintiff to conduct
discovery in this case. In due course, the Court will decide
Plaintiff's request presented in his Motion for Remand
(Doc. 29) that the Court remand the matter to the
Commissioner for consideration of new evidence.
Plaintiff's “Notice & Motion for
Discovery” (Doc. 23) will be denied.
Plaintiff's “Motion to Verify Timeliness of
Defendant's Answer” (Doc. 28)
March 22, 2018 Motion (Doc. 28), Plaintiff requests that the
Court verify whether Defendant's Answer (Doc. 24) filed
on March 12, 2018 is timely. The Court will grant
Plaintiff's Motion (Doc. 28) to the extent set forth
Rule of Civil Procedure 12(a)(2) provides that a
“United States, a United States agency, or a United
States officer or employee sued only in an official capacity
must serve an answer to a complaint, counterclaim, or
crossclaim within 60 days after service on the United States
attorney.” The Summons and Complaint were served on the
United States Attorney on January 9, 2018. (Doc. 12). As
Defendant correctly states, sixty days from January 9, 2018
is Saturday, March 10, 2018. (Doc. 31 at 2). In accordance
with Federal Rule of Civil Procedure 6(a)(1)(C), the
answering deadline was extended to Monday, March 12, 2018.
Therefore, Defendant's Answer (Doc. 24) filed on March
12, 2018 is timely.
contrary to Plaintiff's assertion (Doc. 34 at 3),
Defendant timely served the Answer on Plaintiff as it was
mailed to Plaintiff on March 12, 2018. (Doc. 28 at 6; Doc. 34
at 5). Federal Rule of Civil Procedure 5(b)(2)(C) provides
that when service is made by mail to the person's last
known address, “service is complete upon
Plaintiff's “Motion for Remand so that New Evidence
Can Be Considered, & Counterarguments to ECF No. 27,
Defendant's Response to ...