Anderson v. Astrue (CONSENT)

Filing 29

ORDER directing that this Court's 19 Order granting the Commissioner's 13 Motion is VACATED, as further set out; further ORDERED that the Clerk is DIRECTED to close this appeal, as further set out; the Commissioner is DIRECTED to move to reopen this case after he has completed administrative action, as further set out. Signed by Honorable Judge Susan Russ Walker on 9/27/11. (Furnished to SSA Hearings & Appeals and SSA Chief Judge.) (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
RUBY J. ANDERSON,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO. 1:09CV681-SRW
(WO)

ORDER
Plaintiff Ruby J. Anderson brings this action pursuant to 42 U.S.C. § 405(g) seeking
judicial review of a decision by the Commissioner of Social Security (“Commissioner”)
denying her application for a period of disability and disability insurance benefits under the
Social Security Act. On October 20, 2009, upon the Commissioner’s motion, the court
remanded this action to the Commissioner for further proceedings pursuant to sentence six
of § 405(g), without entry of judgment. (R. 343-45). On April 23, 2010, the Appeals Council
remanded the case to an administrative law judge (“ALJ”) with instructions to “take any
further action needed to complete the administrative record and issue a new decision, on the
issue of disability before September 3, 2008[.]” (R. 39-40).1 The ALJ conducted a hearing
on August 5, 2010 (R. 614-30), and, on August 19, 2010, issued a decision concluding that

1

The Appeals Council limited the ALJ’s consideration to the period before September 3,
2008, because plaintiff had been found, on the basis of a subsequent application, to be disabled as
of that date. (R. 40).

plaintiff was not disabled prior to September 3, 2008. (R. 13-23). On February 11, 2011,
the Commissioner answered the complaint and filed a certified administrative transcript; the
Commissioner moved to reopen the case advising the court that administrative proceedings
on remand had been completed. (Doc. ## 13-15). The court granted the Commissioner’s
motion to reopen the case. (Doc. # 19).
However, upon review of the record and briefs submitted by the parties, it appears that
administrative proceedings have not, in fact, been completed. Plaintiff has attached to her
brief a “Request for Review of Hearing Decision/Order” with a date stamp indicating that
it was received at the Dothan Social Security office on August 27, 2010. (Doc. # 22-2). In
his brief, the Commissioner concedes – citing this document – that “Plaintiff filed exceptions
to the ALJ’s decision (Docket 22-2), but the Appeals Council did not assume jurisdiction,
making the ALJ’s decision the Commissioner’s final decision for purposes of judicial
review.” (Commissioner’s brief, p. 2). The Commissioner cites no evidence of record in
support of his assertion that the Appeals Council declined to assume jurisdiction. (Id.).2

2

It is not apparent to the court that this document, filed with the Dothan office, demonstrates
proper filing of exceptions. In contrast with the Commissioner’s regulations regarding request for
review of an ALJ’s decision in cases other than those remanded by a court, which provide expressly
for filing in a local SSA office, the regulations governing court-remand cases require that exceptions
be filed directly with the Appeals Council. Compare 20 C.F.R. §404.984(b)(in court remand cases,
“[e]xceptions may be filed by submitting a written statement to the Appeals Council” within 30 days
of receipt of ALJ decision) and 20 C.F.R. § 404.968 (request for review may be filed within 60 days
“at one of our offices” but request for extension of time to request review “must be filed with the
Appeals Council”). However, the Commissioner does not contend that plaintiff’s request for review
was not filed properly, and the court accepts the Commissioner’s concession that plaintiff filed
exceptions to the ALJ’s decision. See also R. 10 (notice of ALJ’s decision directing claimant to send
written exception to the Appeals Council and providing mailing address but stating, also, that “[i]f
2

On remand from a federal court, the Appeals Council may either make a decision on
the case itself or it may remand the case to an ALJ for a decision on the case or a
“recommended decision” to be returned to the Appeals Council for action. 20 C.F.R.
§ 404.983.3 In this instance, the Appeals Council remanded the case to an ALJ with
instructions to issue a new decision. (R. 39-40). Eight days after the ALJ issued the new
decision, as noted above, plaintiff submitted a “Request for Review of Hearing
Decision/Order” form to the Social Security office in Dothan, Alabama. (Doc. # 22-2).4
The Commissioner’s regulations specify the manner in which the Appeals Council
must respond to timely-filed written exceptions in court-remand cases:
If written exceptions are timely filed, the Appeals Council will consider your
reasons for disagreeing with the decision of the administrative law judge and
all the issues presented by your case. If the Appeals Council concludes that
there is no reason to change the decision of the administrative law judge, it will
issue a notice to you addressing your exceptions and explaining why no

you need help, you may file in person at any Social Security or hearing office”).
3

This regulatory provision incorporates the procedures of § 404.977 in cases remanded to
an ALJ by the Appeals Council. Only the first two subsections of § 404.977 apply in the present
case; subsections (c)(d) and (e) pertain to cases in which the Appeals Council remands for a
“recommended decision.”
4

Five and a half weeks later, plaintiff’s counsel’s office submitted additional evidence to the
Appeals Council by facsimile. (Doc. # 28-1). The parties disagree about the standard governing this
court’s review of the additional evidence which, like plaintiff’s request for review, is not a part of
the certified administrative transcript the Commissioner has filed with the court. The Commissioner
contends that the court may consider the evidence only to determine whether plaintiff’s additional
evidence satisfies the requirements for a sentence six new evidence remand; plaintiff contends that
the evidence was before the Commissioner at the administrative level and this court should,
therefore, consider it in determining whether the Commissioner’s decision is supported by
substantial evidence. This issue turns on whether plaintiff’s additional evidence was timely filed
and submitted to the Commissioner properly at the administrative level.
3

change in the decision of the administrative law judge is warranted. In this
instance, the decision of the administrative law judge is the final decision of
the Commissioner after remand.
20 C.F.R. § 404.984(b)(2)(emphasis added). The Commissioner cites no such notice and the
court has not located, in its review of the certified transcript, any Appeals Council action
addressing plaintiff’s exceptions to the ALJ’s decision. Plaintiff does not indicate, in her
summary of the proceedings on remand, that she received any notice from the Appeals
Council notifying her of its decision regarding whether to assume jurisdiction of her case.
(See Plaintiff’s brief, p. 2)(“On August 27, 2010, Ms. Anderson filed a Request for Review
of Hearing Decision with the Appeals Council (Exhibit 1). On February 11, 2011, Defendant
filed a Motion to Reopen this case in the Middle District of Alabama.”).
Thus, it appears that – contrary to the Commissioner’s representation in his motion
to reopen this case – administrative proceedings have not been completed. The court cannot
assume, for purposes of its review, that the Appeals Council actually declined to assume
jurisdiction of plaintiff’s case or that it would have done so had it considered plaintiff’s
written exceptions. Accordingly, and for good cause, it is
ORDERED that this court’s order granting the Commissioner’s motion to reopen this
case is VACATED as – due to plaintiff’s written exceptions – this case remains pending
before the Commissioner on the court’s previous remand order.5
5

See 20 C.F.R. § 404.984(b)(3)(“When you file written exceptions to the decision of the
administrative law judge, the Appeals Council may assume jurisdiction at any time, even after the
60-day time period which applies when you do not file exceptions. If the Appeals Council assumes
jurisdiction, it will make a new, independent decision based on the preponderance of the evidence
4

It is further ORDERED that the Clerk is DIRECTED to close this appeal, pending
conclusion of administrative proceedings on remand. The Commissioner is DIRECTED to
move to reopen the case after he has completed administrative action in accordance with his
regulations and must, at that time, file a complete transcript of the administrative
proceedings.
DONE, this 27th day of September, 2011.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE

in the entire record affirming, modifying, or reversing the decision of the administrative law judge,
or it will remand the case to an administrative law judge for further proceedings[.]”).
5