Hinson v. Commissioner of Social Security
Filing
33
OPINION AND ORDER granting 25 Defendant's Opposed Motion for Entry of Judgment with Remand. The decision of the Commissioner is REVERSED AND REMANDED. The Clerk of Court is directed to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Magistrate Judge Douglas N. Frazier on 12/1/2014. (CAS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH HINSON,
Plaintiff,
v.
Case No: 2:14-cv-222-FtM-DNF
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
OPINION AND ORDER
This cause is before the Court on Defendant the Commissioner of the Social Security
Administration’s Opposed Motion for Entry of Judgment with Remand (Doc. 25) filed on
October 22, 2014. On October 24, 2014, Plaintiff Joseph Hinson filed a Response to Defendant’s
Motion for Entry of Judgment with Remand (Doc. 26). Defendant filed a Reply to Plaintiff’s
Response to Motion for Voluntary Remand (Doc. 28) on October 20, 2014, and on November
14, 2014, Plaintiff filed a Sur-Reply to Defendant’s Response to Plaintiff’s Response to
Defendant’s Motion for Entry of Judgment with Remand (Doc. 32). For the reasons explained
below, the Court finds that Defendant’s Opposed Motion for Entry of Judgment with Remand
(Doc. 25) is due to be GRANTED.
Defendant is requesting that this action be remanded to the Commissioner for the
following reason:
Upon remand, an administrative law judge (ALJ) will offer Plaintiff an opportunity
for a new hearing and issue a new decision. The ALJ will also reconsider Plaintiff’s
residual functional capacity, including whether he requires an assistive device or
wheelchair, and, if necessary, seek vocational expert testimony to determine
whether there are a significant number of jobs in the national economy that Plaintiff
can perform.
(Doc. 25 p. 1). Plaintiff argues that Defendant’s reasons for remand are too limited and requests
that the Court remand this case for additional reasons. Plaintiff argues that this case should be
remanded for the following reasons:
Upon remand, the Appeals Council will determine if reversal and a grant of benefits is
warranted based on the Listings. If so, a finding of disability will be made. The
evidence at least raises the reasonable possibility of Administrative Law Judge (ALJ)
Larry Butler's bias and abuse of discretion in his adjudication of Plaintiff's case.
Therefore, on remand, if the Appeals Council determines that the evidence needs to be
considered further, an ALJ other than ALJ Larry Butler will consider Plaintiff’s case
and issue a new decision. That ALJ will consider the evidence and determine whether
the claim can be adjudicated pursuant to the Listings, or, if the claim requires further
consideration of the evidence, offer the Plaintiff an opportunity for a new hearing and
issue a new decision. The newly assigned ALJ will reconsider Plaintiff's residual
functional capacity and also seek vocational expert testimony to determine whether
there are a significant number of jobs in the national economy that Plaintiff can
perform.
(Doc. 26 p. 2). Thus, Plaintiff agrees with Defendant’s reason for remand, but argues that the Court’s
remand order should contain two additional directives. First, Plaintiff argues that the Court should
specifically direct the ALJ to consider the evidence and determine whether Plaintiff’s claim can be
adjudicated pursuant to the Listings. Second, Plaintiff argues that the Court should specify that an ALJ
other than ALJ Larry Butler consider the case.
Defendant argues that it would be unnecessary and redundant to direct the Appeals Council to
consider whether Plaintiff’s condition meets or equals a Listing because the Commissioner’s
regulations already require the ALJ to consider whether Plaintiff’s condition meets or equals a Listing
as part of his new administrative hearing. (Doc. 28 p. 2). Notably, Defendant does not argue that
Plaintiff is not entitled to have an ALJ consider whether his condition meets or equals a Listing, but
rather that such a consideration will occur as a matter of course pursuant to 20 C.F.R. §
404.1520(a)(4)(iii). (Doc. 28 p. 2). Accordingly, as Plaintiff and Defendant are in agreement that a
determination must be made as to whether Plaintiff’s condition meets or equals a listing, in an
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abundance of caution and in order to provide clarity upon remand, the Court finds it prudent to specify
that the ALJ shall consider whether Plaintiff’s condition meets or equals a listing.
As to Plaintiff’s argument that the Court should specify that a new ALJ must hear the case on
remand, Defendant argues that the selection of a new ALJ on remand is a decision for the
Commissioner. (Doc. 28 p. 3). Defendant contends that Plaintiff has not shown the selection of a new
ALJ is necessary, and thus, the decision should be left with the Commissioner. (Doc. 28 p. 3).
Plaintiff argues this case should be remanded to a new ALJ because there is a possibility that
ALJ Butler was biased or abused his discretion in the instant case. (Doc. 26 p. 2). Plaintiff’s claim of
bias arises from a lawsuit ALJ Butler filed in federal court in February 2014 captioned Larry Butler v.
Carolyn Colvin, S.D. Fla., Docket 14-60444-cv-Williams/Turnoff (hereinafter referred as “the
Lawsuit”). In the Lawsuit, ALJ Butler is suing the Commissioner of Social Security on the grounds
that he was improperly reprimanded for not providing interpreters to three social security claimants.
In his complaint in the Lawsuit, ALJ Butler alleges that
a pattern and practice had developed amongst several local representatives of routinely
alleging that a claimant required an interpreter at a hearing in order to testify. The
reason representatives routinely requested interpreters at hears was to bolter [sic] an
argument that the claimant could not “communicate in English” as contemplated by 20
CFR 404.1564(b)(5); 416.964(b)(4). If a claimant cannot “communicate in English”
application of the “Grids” can result in an award of disability benefits five (5) years
earlier than benefits would be awarded to another claimant with an identical medical
and vocational profile who can “communicate in English.”
(Doc. 22-1 p. 8; ¶13, ALJ Butler’s Complaint in the Lawsuit). In an attachment to his Complaint, ALJ
Butler indicates that the three cases involved in the reprimand were cases in which Plaintiff’s counsel
was the claimants’ counsel. (Doc. 22 p. 25; Doc. 22-1 p. 57; ALJ Butler’s Complaint in the Lawsuit,
Attachment Number 6). ALJ Butler also characterizes the requests for interpreters as “an attempt to
bolster the illegitimate contention that the claimant cannot ‘communicate in English,’” and that such a
practice was a “deception.” (Doc. 22 p. 26; Doc. 22-1 p. 59).
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Given ALJ Butler’s comments in the Lawsuit, Plaintiff argues that ALJ Butler could not have
afforded him a fair and impartial hearing in this case. Plaintiff contends that ALJ Butler’s comments
display a deep-seated antagonism for Plaintiff’s counsel which renders fair judgment impossible. (Doc.
22 p. 26). Plaintiff argues that at the very least, ALJ Butler’s conduct creates a concern that his
decision-making ability has been compromised. (Doc. 22 p. 26).
“An administrative law judge shall not conduct a hearing if he or she is prejudiced or partial
with respect to any party or has any interest in the matter pending for decision.” 20 C.F.R. § 404.940.
“The impartiality of the ALJ is integral to the integrity of the system.” Miles v. Chater, 84 F.3d 1397,
1401 (11th Cir. 1996)(citing Johnson v. Mississippi, 403 U.S. 212, 216 (1971)). Courts must start from
the presumption that administrative adjudicators, such as ALJs are unbiased. See Schweiker v.
McClure, 456 U.S. 188, 195-196 (1982). This presumption of unbiasedness, however, can be
overcome by a showing of conflict of interest or some other specific reason for disqualification. Id.
In this case, the Court finds that Plaintiff has failed to overcome the presumption that ALJ
Butler’s decision was made without bias or prejudice. As Defendant correctly notes, Plaintiff has
pointed to nothing in ALJ Butler’s decision or in his conduct at the hearing to sustain his burden
of showing that the disability review process was compromised. Plaintiff’s claim of bias is further
undermined by the fact that ALJ Butler rendered his decision in this case on November 29, 2012,
well before he filed suit against the Commissioner of Social Security on February 21, 2014.
In addition, the Court rejects Plaintiff’s argument that this case is similar to Miles v. Chater,
84 F.3d 1397 (11th Cir. 1996), in which the Eleventh Circuit specified that a new ALJ should hear
the claimant’s case on remand. In Miles, an ALJ opined in his decision that he rejected the
evaluation of an examining physician because that physician, when performing evaluations for the
claimant’s attorney, “invariably conclude[s] that the person being examined is totally disabled.”
Id. at 1399. The Eleventh Circuit held that the ALJ’s reason for rejecting the physician’s opinion
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was not supported by any evidence in the case and reflected that the review process was
compromised. Id.
The facts in this case are significantly different. Whereas in Miles the ALJ displayed bias
in considering the merits of the claimant’s appeal actually before him, in this case there is no
evidence that ALJ Butler did anything improper. The only fact that Plaintiff relies on for support
is that ALJ Butler cast Plaintiff’s attorney in a negative light in a lawsuit filed more than a year
after he rendered his decision in this case. Without a showing of actual bias or prejudice in this
case, the Court will not include a directive to the Appeals Council to remand this case to a different
ALJ. On remand, the selection of a new ALJ will be a decision for the Commissioner to determine.
Hillburn v. Astrue, 2010 WL 3385135, at *1 (M.D. Fla. Aug. 26, 2010). Accordingly,
IT IS HEREBY ORDERED:
1) Defendant’s Opposed Motion for Entry of Judgment with Remand (Doc. 25) is
GRANTED and the decision of the Commissioner is REVERSED AND
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).
2) Upon remand, the ALJ shall consider the evidence and determine whether the claim
can be adjudicated pursuant to the Listings, or, if the claim requires further
consideration of the evidence, offer Plaintiff an opportunity for a new hearing and
issue a new decision.
The ALJ shall reconsider Plaintiff’s residual functional
capacity, including whether he requires an assistive device or wheelchair, and if
necessary, seek vocational expert testimony to determine whether there are significant
number of jobs in the national economy that Plaintiff can perform.
3) The Clerk of Court is directed to enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
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DONE and ORDERED in Fort Myers, Florida on December 1, 2014.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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