Van Arsdale v. Astrue

Filing 35

ORDER granting in part and denying in part 32 Defendant's Motion to Reverse and Remand. See attached opinion. As both parties have consented to the Magistrate Judge entering a final order in this case, there is no need for review by a district judge. See 28 U.S.C. § 636(c). The Clerk is directed to close the case. SO ORDERED. Signed by Judge Thomas P. Smith on July 24, 2012. (Slitt, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MICHELLE L. VAN ARSDALE,
- Plaintiff

v.

CIVIL NO. 3:11CV01014(TPS)

MICHAEL J. ASTRUE,
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
- Defendant
ORDER
The defendant's Motion To Reverse and Remand this case to the
Commissioner under sentence four of 42 U.S.C. § 405(g) [Dkt. #32]
is GRANTED in part and DENIED in part.

To the extent that the

parties have consented to a remand of the case to the Commissioner
for the taking of additional evidence, the motion is granted.

To

the extent that the motion fails to limit the time for further
administrative action by the Commissioner, and provides for the
scheduling of telephonic testimony on remand, the motion is denied.
The plaintiff filed her application for benefits on November
10, 2005.

The ALJ issued an unfavorable decision on September 27,

2007, and the Appeals Council needed until March 25, 2009 to deny
review of this decision.

After the plaintiff commenced an action

[09-cv-706 (CSH)] in this Court on April 28, 2009, the Commissioner
moved for a voluntary remand, which was granted on September 17,
2009.

The Appeals Council then needed more than six months, until

April 12, 2010, to remand the case to the New Haven Office of
Disability Adjudication and Review.

Once back in the hands of the

New Haven office, it took almost nine more months for a second
hearing to be held before the ALJ.

On April 21, 2011, the ALJ

issued a partially favorable decision finding, inter alia, that the
plaintiff was disabled for the "closed period" of December 1, 2005
to December 31, 2006 only.

The plaintiff commenced the instant

action on June 23, 2011 challenging that decision, and on July 11,
2012, the Commissioner once again moved for voluntary remand.
Thus, the plaintiff has been waiting for more than six and a half
years for a decision from the Commissioner that is free from legal
error and is supported by substantial evidence.

Given the history

of this case, the Appeals Council is ORDERED to release this matter
to the New Haven Office of Disability Adjudication and Review
within 125 days of the entry of this order.
In her opposition memo [Dkt. #33], the plaintiff objects to
testimony being received via telephone on remand, as 20 C.F.R. §
404.938

contains

testimony.

no

provision

for

the

receipt

of

telephonic

The propriety of telephonic testimony is in doubt in

this District, and the use of such testimony may, in some cases,
constitute reversible error.

See Edwards v. Astrue, 3:10cv1017

(MRK), 2011 WL 3490024 (D.Conn. Aug. 10, 2011). Accordingly, given
the history of this case, and the timely objection raised by the
plaintiff, no telephonic testimony shall be received on remand

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without the consent of the plaintiff.
As

both

parties

have

consented

to

the

Magistrate

Judge

entering a final order in this case, there is no need for review by
a district judge.
to close the case.

See 28 U.S.C. § 636(c).

The Clerk is directed

SO ORDERED.

Dated at Hartford, Connecticut this 24th

day of July, 2012.

/s/ Thomas P. Smith
THOMAS P. SMITH
UNITED STATES MAGISTRATE JUDGE

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