Opinion
Civil No. 00-525-FR
March 4, 2001
Sara L. Gabin Lake Oswego, Oregon Attorney for Plaintiff.
Kristine Olson United States Attorney, William W. Youngman Assistant United States Attorney Portland, Oregon, Victoria Blais Special Assistant United States Attorney Seattle, Washington Attorneys for Defendant.
OPINION AND ORDER
The matter before the court is the defendant's motion to strike (#16-1).
BACKGROUND
The plaintiff, Carla J. Dack, brings this action pursuant to 42 U.S.C. § 1383(c)(3) of the Social Security Act (the Act), to obtain judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying her March 5, 1996 application for Supplemental Security Income.
On March 5, 1996, Dack filed an application for a period of disability based upon a bipolar and compulsive disorder, bone spurring, and post traumatic stress disorder alleging an onset date of March 5, 1996. The application was denied initially and upon reconsideration. After a timely request for a hearing, Dack, represented by counsel, appeared and testified before Administrative Law Judge Riley Atkins (the ALJ) on October 22, 1997.
On January 28, 1998, the ALJ issued a decision finding that Dack was not disabled within the meaning of the Act. On November 10, 1998, Dack appealed the decision of the ALJ to the Appeals Council requesting that her claim be remanded for rehearing based upon the additional evidence that she had to offer in support of her claim of disability. On March 1, 2000, more than two years after the decision of the ALJ, the Appeals Council declined to review the decision of the ALJ, and the decision of the ALJ became the final decision of the Commissioner.
On February 4, 2000, Dack filed another application for Supplemental Security Income benefits based upon her bipolar disorder and a vascular necrosis of her right hip, with a total hip replacement. This application was granted with an effective date of January 1, 2000.
On November 15, 2000, Dack filed her opening brief in this case seeking the review and reversal of the decision of the Commissioner to deny her application of March 6, 1996 for Supplemental Security Income benefits. In addition to her opening brief, Dack included copies of a number of documents from the file of the Commissioner who reviewed the application she had filed on February 4, 2000. Dack requests that these documents be included in the record as a supplement to the administrative record which was before the Commissioner at the time.
CONTENTIONS OF THE PARTIES
The Commissioner moves the court to strike the supplemental evidence submitted by Dack with her opening brief. The Commissioner contends that Dack is not entitled to supplement the administrative record with documents from a subsequent application. The Commissioner contends that this court may not consider evidence outside of the record certified in this case.
Dack contends that it is proper for this court to consider new evidence because the evidence is material and she has demonstrated good cause for having failed to incorporate the evidence into the record in the prior proceeding. Dack contends that the court should remand this case to the Commissioner along with her new evidence.
APPLICABLE LAW
Review under 42 U.S.C. § 405(g) is based upon the certified copy of the transcript of record and the pleadings. 42 U.S.C. § 405(g). Section 405(g) provides, in part:
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; and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner's findings of fact or the Commissioner's decision, or both. . . .
RULING OF THE COURT
Carla Dack is entitled to assert that this court should remand to the Commissioner for consideration any new evidence under Section 405(g). The court cannot determine whether to remand, however, until the Commissioner has filed a memorandum regarding the merits of the new evidence.The defendant's motion to strike (#16-1) is DENIED. The defendant shall file a response to the plaintiff's opening brief on or before March 5, 2001. The plaintiff shall file a reply to the defendant's response on or before March 19, 2001. The court will review the case thereafter.
IT IS SO ORDERED.