Cuthbertson v. Commissioner of Social Security
Filing
26
ORDER granting 18 Motion to Remand; Adopting in part and rejecting in part, Report and Recommendations - re 23 Report and Recommendations. The Commissioner's final decision in this case is REVERSED and REMANDED for further proceedings consistent with this Order. The Clerk is directed to enter judgment accordingly and close this case. Signed by Judge Carlos E. Mendoza on 3/29/2017. (DJD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DIANE LOWE CUTHBERTSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Case No: 6:15-cv-2062-Orl-41JRK
Defendant.
/
ORDER
THIS CAUSE is before the Court on the Complaint (Doc. 1) filed by Plaintiff Dianne
Cuthbertson pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), which seeks judicial review of the
Commission of the Social Security Administration’s (“Commissioner”) decision denying
Plaintiff’s applications for disability insurance benefits (“DIB”) and supplemental Social Security
Income (“SSI”) payments. This cause is also before the Court on Defendant’s Motion to Remand
(Doc. 18). On January 4, 2017, Magistrate Judge James R. Klindt issued a Report and
Recommendation (“R&R,” Doc. 23), in which he recommends, inter alia, that Commissioner’s
final decision be reversed and remanded for further proceedings. The Commissioner filed
Defendant’s Objections to the United States Magistrate Judge’s Report and Recommendation
(Doc. 24), to which Plaintiff filed a Response to the Defendant’s Objection to the Magistrate
Judge’s Report and Recommendation (Doc. 25). After an independent de novo review of the
record, the R&R will be adopted in part and rejected in part.
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I.
BACKGROUND 1
On May 20, 2010, Plaintiff filed applications for DIB and SSI, claiming that she became
disabled on May 16, 2008. (R. 199–209). Initially and upon reconsideration, the Social Security
Administration denied both applications. (R. 81–92, 97–102). In April 2011, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”). (Id. at 107). Her case was assigned to ALJ
Aaron M. Morgan, and the hearing was held on August 25, 2011. (Id. at 50). Plaintiff, who was
represented by counsel, appeared and testified at the hearing. (Id. at 50–79). The vocational expert
who was scheduled to testify at the hearing could not appear due to illness, (id. at 56), therefore,
Plaintiff requested a supplemental hearing, (id. at 164).
On October 27, 2011, ALJ Morgan held a supplemental hearing, at which Plaintiff and the
vocational expert testified. (Id. at 31–48). A month later, ALJ Morgan issued a decision finding
that Plaintiff was not disabled. (Id. at 14–24). Plaintiff sought review of ALJ Morgan’s decision
with the Appeals Council, but her request was denied. (Id. at 659–61). She then appealed to the
United States District Court for the Middle District of Florida. See Cuthbertson v. Comm’r of Soc.
Sec., No. 6:13-cv-37-Orl-36KRS (M.D. Fla. Jan. 7, 2013). Upon consideration of Plaintiff’s
appeal, District Court Judge Charlene Edwards Honeywell entered an Order reversing the
Commissioner’s decision and remanding Plaintiff’s case for further administrative proceedings.
See id. at Doc. 17 (adopting the report and recommendation of the Magistrate Judge Karla R.
Spaulding).
1
The Administrative Record is filed at docket entry 14-1 through docket entry 14-15. For
clarity purposes, the Court will treat the Record as a single document, using the form (R. at __);
pincites will be to the bates numbers provided in the Record.
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On remand, Plaintiff’s case was rotationally assigned to ALJ John D. Thompson, Jr.
because ALJ Morgan was no longer assigned to the office handling Plaintiff’s disability claims.
(R. at 584). A hearing was held on August 3, 2015. (Id. at 581). During this hearing, ALJ
Thompson heard testimony from Plaintiff, two medical experts, and a vocational expert. (Id. at
581–638). On October 8, 2015, ALJ Thompson issued a decision finding that Plaintiff was not
disabled. (Id. at 558–570). Plaintiff was fifty-five on the date of ALJ Thompson’s decision.
On December 8, 2015, Plaintiff appealed to this Court, arguing that ALJ Thompson erred
by: (1) failing to apply the correct legal standards to the opinion of one of Plaintiff’s medical
experts; (2) failing to properly address and weigh the statements of Plaintiff’s third-party
witnesses; and (3) failing to apply the correct legal standards to Plaintiff’s testimony. (Pl.’s Brief,
Doc. 17, at 2–23). Plaintiff argues that the Court should reverse the matter for an award of benefits,
rather than further proceedings for two reasons: (1) the Commissioner has already considered
essential evidence, the cumulative effect of which establishes Plaintiff’s disability without any
doubt, and (2) Plaintiff has suffered an injustice because she filed her application for benefits
several years ago, and has yet to receive a final decision that is legally sufficient. (Id. at 23–24).
Plaintiff alternatively asks that that if the Court remands her case for further proceedings
that the Commissioner be ordered to assign a different ALJ for an unbiased reconsideration of her
disability claim. (Id. at 24 n.2). Plaintiff contends that ALJ Thompson cannot fairly consider her
application for benefits because he made multiple statements urging Plaintiff to amend her onset
disability date to her fifty-fifth birthday and suggested that he would only award benefits as of that
date. (Id.). In support of her argument, Plaintiff relies primarily on Martin v. Barnhart, 319 F.
Supp. 2d 1381, 1384 (S.D. Ga. 2004), where the court found that an ALJ created an appearance of
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impropriety by implying that he would grant an award of benefits to the claimant if she amended
her onset date of disability.
Commissioner argues that an award of benefits is inappropriate because Plaintiff has failed
to demonstrate that the evidence in her case establishes disability without any doubt or that she has
suffered an injustice. (Doc. 18 at 2). Conceding error, however, the Commissioner moves the Court
to remand Plaintiff’s case further administrative proceedings. (Id. at 1). On remand, the
Commissioner asserts that the ALJ should be instructed to:
evaluate whether Plaintiff’s impairments meet or equal a listing,
including Listing 1.02; evaluate and weigh the medical opinions of
record, including the medical expert’s opinion, and explain the
rationale for the weight given; consider all of the lay opinion
evidence; and determine whether claimant can perform work that
exists in significant numbers in the national economy, obtaining VE
testimony if necessary.
(Id.). The Commissioner did not respond to Plaintiff’s request for the reassignment of her case to
a different ALJ.
Upon review of the record, the Magistrate Judge found no “evidence establish[ing]
[Plaintiff’s] disability without any doubt.” (Doc. 23 at 11). He also found no injustice warranting
an award of benefits. (Id. at 13). Accordingly, the Magistrate Judge recommends that the Court
reverse and remand Plaintiff’s case for further proceedings. In light of the Commissioner’s failure
to respond to Plaintiff’s request for reassignment and the decision in Martin, the Magistrate Judge
also recommends that that the Court direct the Commissioner to reassign Plaintiff’s case to a
different ALJ. Alternatively the Magistrate Judge recommends that the Court strongly urge the
Commissioner to assign a different ALJ. (Doc. 23 at 13 n.8).
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The Commission objects to the Magistrate Judge’s recommendation regarding the
reassignment of Plaintiff’s case. 2 (See generally Doc. 24).
II.
LEGAL STANDARD
Pursuant to 28 U.S.C. § 636(b)(1), when a party makes a timely objection, the Court shall
review de novo any portions of a magistrate judge’s report and recommendation concerning
specific proposed findings or recommendations to which an objection is made. See also Fed. R.
Civ. P. 72(b)(3). De novo review “require[s] independent consideration of factual issues based on
the record.” Jeffrey S. v. State Bd. of Educ. of State of Ga., 896 F.2d 507, 513 (11th Cir. 1990)
(per curiam). The district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
III.
ANALYSIS
The Commissioner raises several arguments against reassignment for the first time in her
Objection. (See Doc. 24 at 1 n.1) (acknowledging that counsel mistakenly failed to address
Plaintiff’s argument regarding the reassignment issue in the reply brief). 3 The Commissioner
argues, inter alia, that reassignment is inappropriate because ALJ Thompson’s statements “were
2
Neither party objects to the Magistrate Judge’s recommendation that the Court reverse
this matter for further proceedings. Finding no clear error, the Court will accept the Magistrate
Judge’s recommendation. See Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006)
(explaining that in the absence of specific objections, “a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation” (quotation omitted)).
3
Where a party raises an argument for the first time in an objection to a report and
recommendation, the district court may exercise its discretion and decline to consider the
argument. See Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009). Nevertheless, the Court will
address the Commissioner’s arguments.
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based on the record and the absence of evidence, not any alleged bias or antagonism towards
Plaintiff.” (Id. at 2). Upon review of the record, the Court agrees.
The decision to remand a Social Security case to a different ALJ is generally reserved for
the Commissioner, however, courts may order the Commissioner to assign a different ALJ upon a
showing of bias on the part of the original ALJ. Travis v. Sullivan, 985 F.2d 919, 924 (7th Cir.
1993). There is a rebuttable presumption that the original ALJ is unbiased. See Schweiker v.
McClure, 456 U.S. 188, 195 (1982). Plaintiff, as the party asserting the ALJ’s bias, bears the
burden of rebutting that presumption by demonstrating a “conflict of interest or some other specific
reason for disqualification.” Id. at 195–96, 102. Importantly, “the ‘appearance of impropriety’
standard for recusal applicable to Article III judges, see 28 U.S.C. § 455(a), does not apply to
ALJs: rather, actual bias must be shown.” Hilburn v. Astrue, No. 8:10-cv-272-T-27EAJ, 2010 WL
3385135, at *1 (M.D. Fla. Aug. 26, 2010); cf. King ex rel. S.K. v. Comm’r of Soc. Sec., No. 607cv-537-ORL-22DAB, 2008 WL 4095493, at *5 (M.D. Fla. Aug. 29, 2008) (noting that “other
courts have held that remand to a different ALJ may be an appropriate remedy, even without an
express finding of bias” and collecting cases).
To constitute bias, the evidence “must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge learned from his participation in the
case.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also United States v. Amedeo,
487 F.3d 823, 828 (11th Cir. 2007) (same). As a corollary, “[o]pinions formed by the judge on the
basis of facts introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they display a deepseated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United
States, 510 U.S. 540, 555 (1994); see also Amedeo, 487 F.3d at 829 (same). When the alleged bias
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does not stem from an extrajudicial source, it must be “so extreme as to display clear inability to
render fair judgment.” Liteky, 510 U.S. at 551.
Plaintiff claims that reassignment of her case is warranted because ALJ Thompson made
multiple statements at the administrative hearing that indicate his inability to fairly consider
Plaintiff’s application for benefits. (Doc. 25 at 2). Specifically, ALJ Thompson stated: “[i]f
[Plaintiff] wants to amend her onset date to her 55th birthday and, you know, I’ll probably be
inclined to give her a benefit,” (R. at 606); “she’s just not getting benefits that far back. I mean,
you know, I’m not going to do that,” (id. at 607); “I mean, I’m not going to do that,” (id. at 607–
08); “the Court can do whatever it wants to,” (id. at 610). In ALJ Thompson’s decision, he also
noted that Plaintiff “declined to accept a later onset date as of her 55th birthday.” (Id. at 568).
Plaintiff claims that these statements create an appearance of impropriety. (Doc. 25 at 2).
The Court does not find that ALJ Thompson’s statements indicate that bias or an inability
to render fair judgment with regard to Plaintiff’s alleged disability. Plaintiff does not allege ALJ
Thompson considered evidence outside the record, or formed “an opinion on the merits on some
basis other than what the judge learned from his participation in the case.” Grinnell, 384 U.S. at
583. Moreover, Plaintiff has also not cited, and the Court has not found, any authority suggesting,
that it is improper for an ALJ to offer to allow a claimants to amend their onset disability date. But
see Reynolds v. Astrue, No. CIV. SKG-11-559, 2012 WL 1107649, at *14 (D. Md. Mar. 30, 2012)
(finding that it was not improper for an ALJ to raise the issue of amending the claimants onset date
where claimant was represented by counsel). The Court finds Reynolds persuasive and concludes
that the ALJ Thompson’s offer to allow Plaintiff to amend her onset date was not, in and of itself,
improper and is insufficient to establish bias. Thus, Plaintiff must show that ALJ Thompson’s
alleged bias evidences “clear inability to render fair judgment.” Liteky, 510 U.S. at 551.
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Plaintiff is entitled to a fair hearing that comports with due process. See Miles v. Chater,
84 F.3d 1397, 1401 (11th Cir. 1996) (“Trial before ‘an unbiased judge’ is essential to due process”)
(quoting Johnson v. Mississippi, 403 U.S. 212, 216 (1971)). Obviously, it would be improper for
ALJ Thompson to refuse to award Plaintiff benefits based on her refusal to amend her onset date.
The Court does not find, however, that ALJ Thompson’s statements create any fundamental due
process concerns that would warrant reassigning her case to a different ALJ.
ALJ Thompson’s statements merely indicate that he did not believe—based on evidence
presented at the hearing—that Plaintiff could establish that she had been disabled since 2006. (See
R. at 583–610). However, ALJ Thompson wanted “to cut her a break” (id. at 607), and proposed
that if Plaintiff amended her onset disability date to her fifty fifth birthday he would probably
award benefits, (id. at 606). Although ALJ Thompson’s statements were somewhat improvident,
nothing in the record suggests that he rendered, or would render, an unfavorable decision in
retribution for Plaintiff’s refusal to amend her onset date.
Further, the Court does not find that Martin supports Plaintiff’s argument for reassignment.
In Martin, the district court held that reassignment to a new ALJ was proper for two reasons: (1)
the ALJ considered extrajudicial evidence in deciding the claimant’s disability; and (2) the ALJ
created an appearance of impropriety by ostensibly conditioning the award of benefits on the
claimant amending her claim. Martin, 319 F. Supp. 2d at 1384. Plaintiff has not shown that ALJ
Thompson committed the combination of errors discussed in Martin. Moreover, unlike the
claimant in Martin, Plaintiff has not shown that ALJ Thompson relied on extrajudicial information
or that he displayed clear inability to render fair judgment. Simply put, Plaintiff has failed show
that ALJ Thompson’s comments display deep-seated favoritism or antagonism that would make
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fair judgment impossible or clearly indicate that he will not fairly and impartially consider
Plaintiff’s claim on remand.
That said, the Court still strongly encourages the Commissioner to reassign Plaintiff’s case
to a new ALJ. Plaintiff filed for Social Security benefits nearly seven years ago and the matter
remains unresolved. The parties seem to agree that ALJ Thompson erred when evaluating
Plaintiff’s claim, and that ALJ Thompson would be required to consider some of the same issues
using the appropriate legal standards. Thus, justice would be better served by assigning the matter
to a new ALJ on remand. Furthermore, assigning this case to a new ALJ will prevent Plaintiff from
raising allegations of bias by ALJ Thompson in any future appeal of this matter.
IV.
CONCLUSION
Therefore, it is ORDERED and ADJUDGED as follows:
1. The Report and Recommendation (Doc. 23) is ADOPTED in part and made a part
of this Order to the extent consistent with that stated herein. In all other respects,
the Report and Recommendation is REJECTED.
2. Defendant’s Motion to Remand (Doc. 18) is GRANTED.
3. The Commissioner’s final decision in this case is REVERSED and REMANDED
for further proceedings consistent with this Order.
4. The Commissioner is strongly encouraged to assign this matter to a new
Administrative Law Judge, who will: (1) evaluate whether Plaintiff’s impairments
meet or equal a listing, including Listing 1.02; (2) evaluate and weigh the medical
opinions of record, including the medical expert’s opinion, and explain the rationale
for the weight given; (3) consider all of the lay opinion evidence; and (4) determine
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whether Plaintiff can perform work that exists in significant numbers in the national
economy, obtaining vocational expert testimony, if necessary.
5. The Clerk is directed to enter judgment accordingly and close this case.
6. If Plaintiff ultimately prevails in this case upon remand to the Social Security
Administration, any motion for attorney’s fees under 42 U.S.C. § 406(b) must be
filed within thirty days of the date of the Commissioner’s letter is sent to Plaintiff’s
counsel of record at the conclusion of the Agency’s past due benefit calculation
stating the amount withheld for attorney’s fees. Any fee application must be filed
within the parameters set forth by the Order entered in In Re: Procedures for
Applying for Attorney’s Fees, No. 6:12-mc-124-Orl-22 (M.D. Fla. Nov. 14, 2012).
DONE and ORDERED in Orlando, Florida on March 29, 2017.
Copies furnished to:
Counsel of Record
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