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Stewart v. Colvin

United States District Court, C.D. Illinois, Springfield Division

October 17, 2016

YVONKIA STEWART, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION

          SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Plaintiff Yvonkia Stewart's Motion to Supplement the Record on Appeal (d/e 40). Whether the Motion is construed as a motion under Federal Rule of Appellate Procedure 10(e) or Federal Rule of Civil Procedure 60(b)(2), the Motion is DENIED.

         I. BACKGROUND

         On April 23, 2010, Plaintiff filed with the Social Security Administration a Title II application for a period of disability and disability benefits and a Title XVI application for supplemental security income. The Administrative Law Judge (ALJ) held a hearing on March 22, 2012 and a supplemental hearing on December 4, 2012. On February 18, 2013, the ALJ denied Plaintiff's applications, concluding that Plaintiff was not disabled under the Social Security Act. After the Appeals Council declined to review the ALJ's decision, Plaintiff filed a complaint in this Court requesting judicial review. See Schmidt v. Barnhart, 395 F.3d 737, 741 (7th Cir. 2005) (noting that “[t]he denial of review [by the Appeals Council] converted the ALJ's decision into the decision of the Social Security Commissioner for purposes of judicial review”).

         In her motion for summary judgment before this Court, Plaintiff argued that the Commissioner's decision was not supported by substantial evidence. Plaintiff also submitted new evidence that she claimed would lead to a different conclusion about the extent of her functional limitations. Plaintiff asked for a remand under sentence six of 42 U.S.C. § 405(g) so that the new evidence could be considered by the Commissioner.

         On March 31, 2016, this Court entered an Opinion affirming the Commissioner's decision. See Opinion (d/e 30). Specifically, this Court found that the decision was supported by substantial evidence and the new evidence did not create a reasonable probability that the ALJ would have reached a different conclusion.

         On May 25, 2016, Plaintiff filed her Notice of Appeal (d/e 32). On October 3, 2016, Plaintiff filed the Motion to Supplement the Record on Appeal at issue herein.[1]

         II. PLAINTIFF'S MOTION TO SUPPLEMENT THE RECORD ON APPEAL

         In her Motion, Plaintiff claims that the documents she seeks to include in the record on appeal were entered into evidence in the district court and/or are relevant to the subject of the appeal. Plaintiff describes the new evidence as including: (1) a Functional Capacity Evaluation dated March 8, 2016; (2) a Functional Capacity Evaluation dated March 8, 2016, reprinted May 5, 2016; (3) an Obstetrics and Gynecology consultation medical record dated March 10, 2016; (4) an HSHS St. John's Hospital Medical Report dated April 5, 2016; (5) a Functional Capacity Evaluation Amendment dated September 1, 2016; (6) a Vocational Rehabilitation Functional Limitation Report dated September 16, 2016, correlating with the Functional Capacity Evaluations of March and September 2016; (7) an article entitled Reflex Seizures and Reflex Epilepsy from the American Journal of Electroneurodiagnostic Technology; and (8) a copy of Plaintiff's Medical Billing and Coding diploma from the Ultimate Medical Academy dated August 2016. Pl. Mot. at 5. Contrary to Plaintiff's assertion, none of this evidence was previously presented to this Court.

         III. ANALYSIS

         A timely notice of appeal divests the district court of jurisdiction over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Where, as here, the appeal is taken from a judgment that determines the entire action, the filing of the notice of appeal divests the district court of the power to take any further action in the proceeding “except in aid of the appeal, to correct clerical mistakes under Fed.R.Civ.P. 60(a), or in aid of execution of a judgment that has not been stayed or superseded.” Henry v. Farmer City State Bank, 808 F.2d 1228, 1240 (7th Cir. 1986).

         Under Rule 10(e) of the Rules of Appellate Procedure, a party can move to correct or modify the record on appeal. Fed.R.App.P. 10(e). Such motions should first be presented to the district court. See Fed.R.App.P. 10(e); Seventh Circuit Rule 10(b) (providing that motions to correct or modify the record pursuant to Rule 10(e) of the Rules of Appellate Procedure or a motion to strike matter from the record on appeal should be presented first to the district court); see also, e.g., Zimmerman v. Chi. Bd. of Trade, 360 F.3d 612, 622 (7th Cir. 2004) (a motion to strike matters from the record on appeal must first be presented to the district court). The purpose of Rule 10(e) is to ensure that the Court of Appeals has a complete record of the proceedings before the district court. United States v. Elizalde-Adame, 262 F.3d 637, 641 (7th Cir. 2001). The Rule does not, however, permit a party to add materials to the record on appeal that were not before the district court. Id. at 640.

         Therefore, while this Court has jurisdiction to entertain a Rule 10(e) motion, Plaintiff's motion is not properly brought pursuant to Rule 10(e) because Plaintiff seeks to add new material to the record on appeal that was not before this Court.

         Defendant suggests that Federal Rule of Civil Procedure 60(b)(2) provides the proper procedure for Plaintiff to seek relief, although Defendant denies that Plaintiff is entitled to the relief she seeks. Under Rule 60(b)(2), a court may relieve a party from a final judgment on account of newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b). Fed.R.Civ.P. 60(b)(2). When a timely Rule 60(b) motion is filed but the court lacks the authority to grant it because of a pending appeal, the court may defer ruling on the motion, deny the motion, or state either that it would grant the motion if the Court of Appeals remands for that purpose or that the motion raises a substantial issue. Fed.R.Civ.P. 62.1(a); see also Seventh Circuit Rule 57 (providing that, when a party files a motion to modify a final judgment while the case is pending on appeal, the district court can indicate whether it is inclined to grant the motion, in which case the Court of Appeals will remand the case ...


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