Opinion
Case No. CIV-19-887-R
06-11-2020
WILLIAM EDGAR BRYANT, Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, William Edgar Bryant, brings this action under 42 U.S.C. § 405(g) for judicial review of the Social Security Administration's final decision finding he was not disabled under the Social Security Act. United States District Judge David L. Russell has referred this matter to the undersigned Magistrate Judge. 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). See Doc. 15. Plaintiff seeks a remand for an award of benefits. Doc. 16, at 17-19. He also argues the ALJ erred in its consideration of the opinion evidence, warranting further development. Id. at 12-17. The undersigned agrees the Appointments Clause error requires a remand, but for further proceedings rather than an immediate award of benefits.
Citations to court orders and the parties' filings are to the electronic case filing designations and pagination; citations to the transcript of the administrative record (AR) are to the sequentially numbered pages.
I. Background.
In 2014, this Court remanded the ALJ's decision based on an error in calculating the date last insured for DIB. AR 552-54, 555-63. A different ALJ offered Plaintiff a favorable decision if he would amend his onset date. Plaintiff declined the ALJ's offered onset date, and the ALJ held another administrative hearing. In 2015, the ALJ issued an unfavorable decision. Id. at 571-87. The Appeals Council remanded the case to the original ALJ, finding that the second ALJ had failed to explain why the medical evidence no longer supported a finding of disability. Id. at 597-99.
In 2018, the original ALJ held another administrative hearing and on April 30, 2018, the ALJ issued its finding that Plaintiff was not disabled Id. at 402-22.
In April 2019, Mr. Bryant filed written exceptions, asserting that the original ALJ was not properly appointed under the Constitution's Appointments Clause at the time of the 2018 hearing and lacked legal authority to hear his case or issue a decision. Id. at 431. The Appeals Council did not respond to Mr. Bryant's exceptions in its July 22, 2019 denial of a request for review. Id. at 393-95.
II. Analysis.
In his motion to remand, the Commissioner concedes Plaintiff has preserved his Appointments Clause argument, and that this argument requires remand. Doc. 20, at 2. "[T]he ALJ issued his decision before the Acting Commissioner[] ratified all ALJ appointments, and Plaintiff timely raised the appointment issue to the Appeals Council before it denied review." Id. The Commissioner argues this administrative error does not provide a basis to remand for an award of benefits. Id. at 5.
First, Plaintiff insists remand for further findings is a must: "On remand, the Appeals Council 'will conduct a new and independent review of the claims filed and either remand the case to an ALJ other than the ALJ who issued the decision under review, or issue its own new decision about the claim covering the period before the date of the ALJ's decision.' SSR 19-1p. There is no alternative remedy." Doc. 16, at 6; see id. at 11 ("[T]his case should be remanded for a new hearing before an ALJ who has been lawfully appointed.").
Later, Plaintiff states he "will not agree to yet another remand for further proceedings." Doc. 16, at 17; see Doc. 21, at 4 ("[Plaintiff] has argued (and continues to argue) that remand for an award of benefits rather than for further dilatory proceedings is the only appropriate remedy in this case."). Compare Doc. 16, at 17 ("Remand is required for further evaluation of the medical evidence of record."), with id. at 18 ("[R]emand for further development and delay is unwarranted."). Plaintiff cites excessive delay through no fault of his own, and argues that "all of the treating and examining medical sources of record" found him to have disabling limitations. Id. at 17-18.
The Commissioner argues that while delay is a factor this Court can consider, more important is that the record show "the evidence clearly established that plaintiff was disabled." Doc. 20, at 6 (quoting Hardridge v. Colvin, 2014 WL 7246810, at *3 (D. Kan. Dec. 17, 2014)). The Commissioner does not agree with Plaintiff's assessment of the medical record. See id. at 6-7.
To be sure, this Court may exercise its discretion to remand either for further administrative proceedings or for an immediate award of benefits. See Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir. 1993). In making this decision, courts should consider both "the length of time the matter has been pending and whether or not given the available evidence, remand for additional fact-finding would serve [any] useful purpose but would merely delay the receipt of benefits." Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (internal quotation marks and citation omitted).
The Court acknowledges this case has been pending for nearly ten years, has been through three administrative hearings, an Appeals Council remand, and now, a second review by this Court. The length of time that the matter has been pending weighs in favor of awarding benefits.
The Court also considers whether a remand for additional fact-finding would serve any useful purpose or would merely delay the receipt of benefits. The undersigned agrees with the Commissioner that the record's conflicting opinion evidence does not fully support a determination that Plaintiff is disabled. Doc. 20, at 7. See Stallings v. Berryhill, No. CIV-17-106-BMJ, 2017 WL 5588186, at *10 (W.D. Okla. Nov. 20, 2017) (rejecting request for immediate award of benefit, noting case pending for several years, included "two administrative hearings, one remand by the Appeals Council and now, review by this Court" but that "[r]emand for additional analysis is appropriate as the current record does not fully support a determination that Plaintiff is disabled as a matter of law"). And without a legally firm ALJ decision to review, given the Appointments Clause error, the Court cannot make such a determination. Doc. 16, at 6 (Plaintiff states the Appointment Clause error "absolutely require[s]" remand); see also Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017), ("An automatic award of benefits in a disability benefits case is a rare and prophylactic exception to the well-established ordinary remand rule."), (Order and Amended Opinion filed Jan. 25, 2018).
III. Recommendation.
Given the Appointments Clause error, the undersigned recommends the Court remand this case for further administrative proceedings.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court on or before June 25, 2020, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the Magistrate Judge in this matter.
ENTERED this 11th day of June, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE