Ayers v. Astrue

Filing 15

REPORT AND RECOMMENDATIONS re 11 MOTION for Summary Judgment, 13 MOTION to Remand. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 8/22/2011. Signed by Judge Lynne A. Sitarski on 8/5/2011. (lid)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PAULETTE A. AYERS,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Defendant.

:
:
:
:
:
:
:

CIVIL ACTION

NO. 1:10-771-PD

REPORT AND RECOMMENDATION
LYNNE A. SITARSKI
UNITED STATES MAGISTRATE JUDGE

August 5, 2011

This action was brought pursuant to 42 U.S.C. § 405(g) to review the final decision of the
Commissioner of Social Security (“Commissioner”) denying the claims of Paulette A. Ayers
(“Plaintiff”) for Disability Insurance Benefits (“DIB”) Title II of the Social Security Act, 42
U.S.C. §§ 401-433. Plaintiff has filed a request for review of the final decision of the
Commissioner. (Doc. Nos. 11 & 12). By way of response, Defendant filed a Motion to Remand.
(Doc. No. 13). The matter has been referred to me for a Report and Recommendation. For the
reasons set forth below, I recommend that Defendant’s unopposed Motion for Remand be
granted, Plaintiff’s request for review be denied as moot, and that final judgment be entered.

I.

FACTS AND PROCEDURAL HISTORY
Plaintiff filed an application for DIB on May 6, 2003, alleging that she had been disabled

since June 2, 2002, due back strain/sprain and depression. (R. 14-15, 58, 83-84, 94-96).
Plaintiff’s application was denied at the initial levels, and Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). (R. 43-48, 53-54). In a decision dated November 18, 2004,
the ALJ found that Plaintiff retained the residual functional capacity to perform a significant

range of light work, and there were a significant number of jobs in the national economy that
Plaintiff could perform. (R. 23-24). Thus, the ALJ concluded that Plaintiff was not entitled to
DIB. (R. 24-25). The Appeals Council subsequently denied Plaintiff’s request for review. (R.
5). The ALJ’s decision thus became the final decision of the Commissioner. 42 U.S.C. § 405(g).
Plaintiff then initiated an action in the District Court of Delaware seeking judicial review of the
ALJ’s decision. (R. 384-438). Plaintiff’s first appeal to the District Court resulted in remand
due to the ALJ’s failure to properly evaluate Plaintiff’s credibility and the treating source
opinions. (R. 384-438). On April 23, 2008, the ALJ again determined that Plaintiff was not
entitled to benefits. (R. 349-374). The Appeals Council then denied Plaintiff’s exceptions to
that decision. (R. 340-345). Plaintiff initiated this action on September 10, 2009, seeking
judicial review of the ALJ’s decision. The matter was referred to this Magistrate Judge for
preparation of a Report and Recommendation.

II.

DISCUSSION
Plaintiff alleges that the ALJ made multiple factual and legal errors in rejecting at least

seven treating source opinions that were consistent with a finding of disability, the ALJ’s
hypothetical to the vocational expert (“VE”) was incorrect, the VE’s testimony conflicted with
Agency policy, and the record is missing at least 18 relevant exhibits. (Doc. No. 12, p. 1-2).
Plaintiff notes that Ms. Ayers’ case has been delayed for eight years. Thus, Plaintiff requests that
the matter be remanded for payment of benefits.
In response, Defendant filed a Motion to Remand. Defendant’s Motion to Remand

2

informs the Court that the parties now agree that remand for further proceedings is warranted.1
The parties agree, and the record reflects, that the ALJ cited to numerous exhibits that do not
actually appear to be part of the record.2 (R. 349-357). Given the missing and/or misidentified
records, Defendant has properly requested remand pursuant to sentence four of 42 U.S.C. section
405(g), and I find that the matter should be remanded for full and proper consideration of a
complete administrative record.
Specifically, the ALJ should locate the missing and/or misidentified records, which are
referenced in the ALJ’s decision, and issue a new decision if the records are located. If the
records are not located on remand, the ALJ should obtain the missing records and then issue a
new decision. Additionally, the ALJ should be mindful of the fact that the January 28, 2011
decision to award benefits may have relied on evidence that is also in the record in the present
case. (Doc. No. 12, Ex. A). The January 28, 2011 decision should not be disturbed on remand.
Finally, final judgment should be entered in this case.
Therefore, I make the following:

1

Defendant states that “The Commissioner has contacted Plaintiff’s counsel, who
consents to the granting of [Defendant’s remand] motion.” (Doc. No. 13, p. 2).
2

For example, the ALJ’s opinion cites to and relies upon exhibits B-4F through B-17F,
B20F. (R. 349-374). However, the record does not appear to contain any documents labeled B4F through B-17F or B20F, in either the List of Exhibits (R. 1-4) or on the actual exhibits
themselves. (R. 115-293, 456-561).
3

RECOMMENDATION

AND NOW, this

5TH day of August, 2011, it is RESPECTFULLY

RECOMMENDED that the instant matter be remanded to the Administrative Law Judge for
further proceedings consistent with this Report and Recommendation.

BY THE COURT:

/s/ Lynne A. Sitarski
LYNNE A. SITARSKI
UNITED STATES MAGISTRATE JUDGE

4