REPORT AND RECOMMENDATION
Plaintiff Jessica Cross brings this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI").*fn1
Specifically, Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") denying her applications for benefits was not supported by substantial evidence and was contrary to the applicable legal standards. The Commissioner argues that the decision was supported by substantial evidence and made in accordance with the correct legal standards. Plaintiff has also submitted a motion to strike the supplemental transcript in this case.
On March 17, 2005, Plaintiff, then nineteen(19) years old, protectively filed an application for SSI and DIB, claiming disability since March 2, 1998, because of schizophrenia and manic depression (R. at 31-32, 48-55).*fn2 Her application was denied initially on August 4, 2005 (R. at 25-32). Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ") on October 6, 2005 (R. at 33).
On December 19, 2006, Plaintiff and her attorney appeared before the ALJ (R. at 232-60). ALJ Robert E. Galeconsidered the case de novo and, on April 27, 2007, issued a decision finding Plaintiff was not disabled (R. at 12-24). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on June 20, 2008 (R. at 4-7). On August 12, 2008, Plaintiff filed this action disputing thedisability determination. Both parties thereafter filed briefs in support of their respective positions and Plaintiff filed a motion to strike the supplemental transcript. Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.*fn3
A. Motion to Strike the Supplemental Transcript
On May 11, 2009, the Commissioner filed a supplemental transcript consisting of a letter dated February 9, 2007, from the ALJ to "Elain Scherba-Germain," a medical source for the Plaintiff (SR. at 261-62).*fn4 The letter to Ms. Scherba-Germain requested all medical records for the relevant period (SR. 261). At the bottom of the letter is an unsigned handwritten notation stating "no response as of 3/27/07" (SR. at 261). The letter was part of the original transcript before the ALJ, but was omitted when the transcript was prepared for the parties and submitted to this Court. See, Defendant's Motion Reply, Attachment A, pp. 2-4.
Plaintiff requests that the Court (1) strike the supplemental transcript; or (2) require the Commissioner to demonstrate that the transcript contains new and material evidence under the sentence six standard in 42 U.S.C. § 405(g); or (3) grant the Plaintiff permission to file a Reply to Defendant's Memorandum of Law in the underlying case "in order to afford the Plaintiff due process in addressing all the evidence." Plaintiff's Motion, p. 2.
In response, the Commissioner argues (1) that there is no authority to support Plaintiff's motion to strike the supplemental transcript; (2) that the supplemental transcript does not contain new and material evidence and remand pursuant to sentence six of 42 U.S.C. § 405(g) is not warranted; and (3) that Plaintiff already made a merits argument on the development of the record which obviates the need for another submission on the same. Defendant's Motion Reply, p. 1.
1. The Motion to Strike the Supplemental Transcript is Denied
As an initial matter, the Court notes that Defendant has offered authority and an explanation for the submission of the supplemental transcript in the first instance. Defendant's Reply, pp. 1-4. The Commissioner's procedure manual for appeals, HALLEX clearly anticipates that on occasion a document or page will be "inadvertently omitted from the original" certified record, in which case an SSA employee will have to prepare a supplemental certified administrative record.*fn5
In addition, Patrick J. Herbst, the Chief of Court Case Preparation and Review, submitted a declaration explaining that the letter to Ms. Scherba-Germain was inadvertently omitted from the transcript in October of 2008, but was recovered when his employees searched the original files at the request of an SSA attorney in April of 2009. Declaration of Patrick J. Herbst, Dkt. No. 25, Attachment 1, pp. 2-4.
Furthermore, although Plaintiff has asserted that there is "no foundation" for the letter and that it is "of unknown etiology," the supplemental transcript also contains a certification, signed by Mr. Herbst. Plaintiff's Motion, p. 4; Supplemental Transcript, p. ii. The certification, dated April 29, 2009, states that "the documents annexed hereto are true and accurate copies of the letter dated February 9, 2007 which were [sic] inadvertently omitted from the administrative record in the case of Jessica L. Cross, certified on October 2, 2008." (SR. at ii).
As to whether the Court should now strike the properly submitted supplemental transcript, the Court notes that Plaintiff cited no authority for her request. See Plaintiff's Motion, pp. 2-4. Therefore, the Court turns first to the statute.
The Act requires that "[a]s 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." 42 U.S.C. § 405(g) (sentence three). The court's power to affirm, modify, or reverse the Commissioner's decision is based upon a review of the pleadings and the transcript of record. 42 U.S.C. § 405(g) (sentence four). Thus, the Court's power to review the Commissioner's decision is predicated, in part, upon a review of the "evidence upon which the findings and decision complained of are based." 42 U.S.C. § 405(g) (sentence three).
The ALJ based his decision, in part, upon Ms. Scherba-Germain's failure to provide treatment notes despite requests by Plaintiff's attorney and the Social Security Administration. In his written decision, the ALJ referred to his own attempts to obtain treatment notes from Ms. Scherba-Germain: "Furthermore, despite the claimant's attorney's and the Administration's endeavors, the record is void of any treatment notes from Dr. [sic] Scherba-Germain to support her opinion" (R. at 22).*fn6 And, the hearing transcript shows that Plaintiff's counsel was seeking treatment notes from Ms. ScherbaGermain even before the hearing (R. at 234-35) ("[W]e've been trying to get the treatment records from her current psychologist, Dr. Shreiver Germain, [sic] who submitted a medical source statement, but not her treatment notes."). Thus, it is only logical to conclude that the Court cannot strike a portion of the evidence upon which the Commissioner relied in formulating his decision.
Furthermore, there is ample case law to support the general premise that "a reviewing court considers the whole record." Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court is limited to reviewing the administrative record that was before the agency and formed the basis for the agency's decision. See Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C. Cir. 1981) (finding that the district court properly struck litigation affidavits);see also State of New York v. Shalala, 1996 WL 87240, at *5 (S.D.N.Y. 1996) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971)) ("Judicial review of agency action is generally limited to review of the full administrative record that was before the agency at the time it rendered its decision."). Therefore, a court may strike materials submitted to the court "on an appeal from agency action that were not part of the administrative record on which the challenged agency action was based." State of New York v. Shalala, 1996 WL 87240, at *5 (citations omitted); see, e.g., Idaho Conservation League v. Thomas, 91 F.3d 1345, 1350 (9th Cir. 1996) (finding that the district court properly struck documents "which were not before the decision maker at the time of the decision" and declined to strike exhibits which it determined "were part of the record"). Once again, the logical inference from this case law is that to strike any portion of the record upon which the agency relied would only frustrate the Court's duty to review "the whole record."
Therefore, the Court denies Plaintiff's motion to strike the supplemental transcript.
2. The Motion for Remand Under "Sentence Six" Is Denied
Plaintiff also moves for the Court to require the Commissioner to prove that the supplemental transcript meets the three part standard set out on "sentence six" of 42 U.S.C. § 405(g) for remanding a case to receive "additional evidence." Plaintiff's Motion, p. 3. However, Plaintiff misunderstands the purpose of the sentence six standard in question. Sentence six of section 405(g) states in relevant 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;
42 U.S.C. § 405(g) (sentence six). This portion of the sentence six remand applies specifically to evidence that was not before the Commissioner and is submitted for the first time to the District Court. See Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (explaining that under sentence six "the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding"); accord Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990) (noting that sentence six "plainly describes" remand "when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding").
Once again, the Court notes that the supplemental transcript in this case contains a letter from the ALJ to Ms. Scherba-Germain, dated prior to the ALJ's written decision. By its very nature, the letter is part of the evidence upon which the ALJ based his decision. See (R. at 22) (The ALJ's decision in which he states, "Furthermore, despite the claimant's attorney's and the Administration's endeavors, the record is void of any treatment notes from Dr. [sic] Scherba-Germain to support her opinion."). Cf. See Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1267-69 (11th Cir. 2007) ("Our settled precedents establish that a sentence six remand is available when evidence not presented to the Commissioner at any stage of the administrative process requires further review."); see, e.g., Peacock v. Astrue, 2008 WL 2074426, at *3 (May 15, 2008, M.D.Ala.) (declining to remand under sentence six of 42 U.S.C. § 405(g) where evidence was not available to the ALJ, but was considered by the Appeals Council, because sentence six does not "grant a court the power to remand for reconsideration of evidence previously considered by the Appeals Council"). The ALJ clearly had the letter available to him at the time he was considering Plaintiff's claim because he had written the letter prior to writing his decision. And, the letter was clearly not submitted for the first time to this Court. Therefore, the Court denies Plaintiff's motion for sentence six remand because the letter to Ms. Scherba-Germain is not the type of evidence to which sentence six remand applies.
3. The Motion for Permission to Reply is Denied
Finally, Plaintiff moves for permission to file a Reply to Defendant's Memorandum of Law in the underlying case. Plaintiff's Motion, p. 2. Defendant points to General Order 18, which directs local procedure for Social Security benefits appeals in the N.D.N.Y. Defendant's Response, p. 8. Although General Order 18 does not explicitly prohibit a Reply, the procedures outlined do not allow for a Plaintiff to submit a Reply to the Commissioner's Brief. See General Order 18, (N.D.N.Y. Sept. 12, 2003) (ordering Plaintiff and Commissioner to each file a brief).
Plaintiff is essentially arguing that allowing a Reply would be equitable. Plaintiff's Motion, p. 2, 4 (arguing that Plaintiff relied on the original transcript and that she was prejudiced by the withholding of the letter). Plaintiff notes that Defendant had an opportunity to consider the evidence in the supplemental transcript before submitting his Brief, ...