United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO
CORRECT THE RECORD
Dennis Saylor, IV United States District Judge
an appeal from a denial of social security benefits.
Plaintiff Charles Brownell requests that the administrative
record in this case be corrected to include three additional
documents. For the reasons given below, the motion will be
hearing before the administrative law judge
(“ALJ”) was held in this case on April 23, 2015.
(A.R. 65-106). Vocational expert Rule Baruch testified at
that hearing as to the possible jobs that a hypothetical
person with similar limitations to plaintiff could perform.
(A.R. 94-105). After the hearing, the record was held open
for plaintiff to submit rebuttal vocational evidence. (A.R.
20). Among other things, plaintiff then submitted written
evidence from vocational expert David Meuse and Baruch's
answers to interrogatories served on her by plaintiff. (A.R.
396-99, 419-22). Plaintiff also requested a supplemental
hearing. (A.R. 412).
supplemental hearing was held on February 9, 2016. (A.R.
45-64). At the hearing, additional evidence was entered into
the record. (A.R. 48-49). At the end of the hearing,
plaintiff's counsel requested that the record be held
open for an additional ten days for the submission of a
post-hearing brief, but assured the judge that he would not
submit any new affidavits. (A.R. 62). The judge gave him
until February 26, 2016, and indicated that plaintiff should
expect a written decision in “late March or sometime in
April.” (A.R. 63). Plaintiff submitted his brief on
February 25. (A.R. 424-25).
9, 2016, four days before the ALJ issued his decision,
plaintiff's counsel attempted to submit a supplemental
affidavit from Meuse, his vocational expert. (Pl. Mot. to
Correct Rec. Ex. A). This affidavit was not considered by the
ALJ and not included in the administrative record for this
case. (See A.R. 20-21, 36).
issued his decision on May 13, 2016. (A.R. 20-38). That
decision was unfavorable to plaintiff. (A.R. 17). Plaintiff
appealed to the Appeals Council and submitted the
supplemental affidavit to the Appeals Council as well. (A.R.
10-11; Pl. Mot. to Correct Rec. Ex. C). In connection with
its denial of plaintiff's appeal, the Appeals Council
acknowledged the affidavit but did not make it part of the
record. (A.R. 1-3). It explained: “The Administrative
Law Judge decided your case through December 31, 2010. This
additional evidence does not relate to the period at issue.
Therefore, it does not affect the decision about whether you
were disabled beginning on or before December 31,
2010.” (A.R. 2).
filed the present motion to correct the record on December
19, 2017. He requests that the following documents be
included in the administrative record:
(1) a two-page supplemental affidavit from Meuse dated May 6,
2016, together with the May 9, 2016 cover letter submitting
it to the ALJ (Pl. Mot. to Correct Rec. Ex. A);
(2) the electronic receipt showing that the cover letter and
affidavit were submitted to the agency's electronic
filing system (id. Ex. B); and
(3) an exhibit showing that the cover letter and affidavit
were submitted to the Appeals Council (id. Ex. C).
reviewing the final decision of ALJ, this 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.” 42 U.S.C. §
essentially argues that the “good cause” for
failure to incorporate the supplemental affidavit into the
record is that, as rebuttal vocational expert evidence, it
was properly submitted to the ALJ after the hearing. He is
correct that he may submit rebuttal evidence and that
rebuttal-type evidence is not required to be submitted at
least five days before a hearing. See 20 C.F.R.
§ 405.331(a) (2016) (“You must submit any written
evidence no later than 5 business days before the date of the
scheduled hearing.”). But he has provided no authority
for the proposition that he may ignore the deadlines
explicitly set by the ALJ for submission of such evidence and
file new materials at any time. He has never attempted to
justify the late submission of the supplemental affidavit. He
had hired Meuse prior to the supplemental hearing, and
presumably could have elicited this testimony within the time
allowed by ...