Burch v. Commissioner of Social Security
Filing
37
ORDER granting 26 Motion for Judgment as a Matter of Law. The Clerk is directed to reopen the case and enter judgment in favor of Plaintiff. Signed by Magistrate Judge Anthony E. Porcelli on 10/27/2020. (REE)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ERIK BURCH,
Plaintiff,
v.
Case No. 8:14-cv-1802-T-AEP
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
/
ORDER
This cause comes before the Court upon Plaintiff’s Motion for Judgment as a Matter of
Law (Doc. 26) and the Commissioner’s Response in Opposition thereto (Doc. 30). A hearing
on the matter was held on October 1, 2020. Upon consideration, Plaintiff’s Motion (Doc. 26) is
due to be granted.
I.
Background
On July 25, 2014, Plaintiff filed his original complaint against the Commissioner
seeking judicial review of the Social Security Administration’s (“SSA”) denial of Supplemental
Security Income (“SSI”) benefits. (Doc. 1). The Commissioner filed a Motion to Dismiss (Doc.
11) alleging that the Court lacked subject matter jurisdiction over Plaintiff’s claim as Plaintiff
did not timely file his request for hearing with the SSA and therefore had not exhausted his
administrative remedies. Subsequently, Plaintiff filed an Amended Complaint (Doc. 12)
alleging a colorable constitutional claim that Plaintiff was unable to understand the SSA appeal
process due to his mental impairments. Further, Plaintiff filed his Response in Opposition (Doc.
16) to the Commissioner’s Motion to Dismiss (Doc. 11) again asserting that a colorable
constitutional claim existed given that Plaintiff suffered from a documented mental illness and
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was unable to represent himself in the SSA proceedings. On July 7, 2015, the undersigned
directed the parties to file supplemental briefings on the issues (See Docs. 19, 21 & 22). On
October 26, 2015, the undersigned issued a Report and Recommendation denying the Motion
to Dismiss (Doc. 11) and recommended that:
Plaintiff's case be remanded to the Secretary with instructions that the Secretary is
directed to make a determination, after considering such evidence as the parties may
submit, whether Mr. Burch's mental illness prevented him from understanding and
pursuing his administrative remedies during the material time period.
(Doc. 24). Subsequently, the Court adopted the undersigned’s Report and Recommendation and
closed the case (Doc. 25). On August 14, 2020, Plaintiff filed his Motion for Judgment as a
Matter of Law (Doc. 26) seeking the Court to reopen the case for the purpose of entering
judgment and allowing for Plaintiff to file a motion for attorney’s fee’s pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Plaintiff, relying on Melkonyan v. Sullivan,
501 U.S. 89 (1991), contends the case should be reopened and that judgment be entered in this
matter because the initial remand was under sentence six of 42 U.S.C. § 405(g). The
Commissioner, however, filed his Response in Opposition (Doc. 30), asserting that the case
cannot be reopened because the case was remanded under sentence four of 42 U.S.C. § 405(g),
in which the remand order served as a “judgment” and therefore the case cannot be reopened.
A hearing on the matter was held on October 1, 2020. 1 For the following reasons, Plaintiff’s
Motion (Doc. 26) is due to be granted.
II.
Discussion
Notably, the Supreme Court in Melkonyan v. Sullivan, 501 U.S. 89 (1991) distinguished
between a sentence four and a sentence six remand under 42 U.S.C. § 405(g). The Court stated
that “the fourth sentence of § 405(g) authorizes a court to enter a judgment affirming,
1After
the hearing, the parties filed a Notice (Doc. 35) consenting to the undersigned’s
jurisdiction, of which the Court approved (Doc. 36).
2
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modifying, or reversing the decision of the Secretary, with or without remanding the cause for
a rehearing.” Id. at 98. Whereas the sixth sentence of § 405(g):
[D]escribes an entirely different kind of remand in which the district court does not
affirm, modify, or reverse the Secretary's decision; it does not rule in any way as to the
correctness of the administrative determination. Rather, the court remands because new
evidence has come to light that was not available to the claimant at the time of the
administrative proceeding and that evidence might have changed the outcome of the
prior proceeding.
Id. In this instance, Plaintiff contends that the Court’s remand was a sentence six remand
because the case was returned to the Secretary for further action and the ALJ received additional
evidence to consider. The Commissioner, however, contends that this Court remanded the case
under sentence four, namely because the administration reconsidered Plaintiff’s claims under a
sentence four remand. The Commissioner also alleges that the fact that new evidence was
considered is not determinative because it is inherent in remand orders that additional evidence
may be considered. Thus, the Commissioner contends that the Court entered judgment and
therefore the case cannot be reopened. Upon review, however, the Court agrees with Plaintiff,
and finds that this Court did not enter a judgment, and that the Court’s remand aligns with a
sentence six remand under 42 U.S.C. § 405(g).
The issue of whether the Court’s remand is considered a sentence four or sentence six
remand is a unique one. Namely, this Court’s jurisdiction was not premised upon a “final”
decision, but rather a finding that Plaintiff raised a colorable constitutional claim. Under Section
405(g), “[a]ny individual, after any final decision of the Secretary made after a hearing to which
he was a party, . . . may obtain a review of such decision by a civil action . . . .” Id. Thus, on
its face, Section 405(g) bars judicial review of a denial of a claim of disability benefits unless
there is a final decision. See Mathews v. Eldridge, 424 U.S. 319, 328 (1976). Ordinarily, the
power to determine when finality has occurred rests with the Secretary, but in cases where a
Plaintiff has raised a colorable constitutional claim a court may deem the exhaustion
3
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requirement waivable and retain jurisdiction over the claim. Id.; see also Califano v. Sanders,
430 U.S. 99, 109 (1977)(stating that “when constitutional questions are in issue, the availability
of judicial review is presumed, and we will not read a statutory scheme to take the
“extraordinary” step of foreclosing jurisdiction unless Congress' intent to do so is manifested
by “ ‘clear and convincing’ ” evidence).
Notably, in Mathews, the Court concluded that a constitutional challenge, which was
“entirely collateral” to the plaintiff’s claim of entitlement to benefits, was a final decision for
purposes of retaining jurisdiction. 424 U.S. at 328-332 (emphasis added). Here, as in Mathews,
the Court maintained jurisdiction over Plaintiff’s collateral constitutional challenge regarding
whether Plaintiff was denied due process based upon his alleged mental impairments.
Significantly, this Court did not make any substantive ruling on Plaintiff’s claim to entitlement
to disability benefits. Rather, the Court merely remanded the case to the Secretary to address
whether Plaintiff’s alleged mental impairments deprived him of due process. Namely, the
remand was to determine whether Plaintiff’s mental illness prevented him from understanding
and pursuing his administrative remedies during the material time period. (See Doc. 24).
The Eleventh Circuit in Elchediak v. Heckler, 750 F.2d 892 (11th Cir. 1985), reached
an almost identical finding, and concluded that Mr. Elchediak raised a colorable constitutional
claim, and remanded to the district court with instructions that it “direct the Secretary to make
a determination, after considering such evidence as the parties may submit, whether Mr.
Elchediak's mental illness prevented him from understanding and pursuing his administrative
remedies following the denial of his first application for benefits.” Id. at 894. (emphasis added).
Similar to Elchediak, this Court remanded the case back to the Secretary “with instructions that
the Secretary is directed to make a determination, after considering such evidence as the parties
may submit, whether Mr. Burch's mental illness prevented him from understanding and
4
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pursuing his administrative remedies during the material time period.” (Doc. 24, at
20)(emphasis added). Thus, this Court followed the instruction of the Eleventh Circuit and
remanded the case back to the Secretary with instruction to consider additional evidence
regarding Plaintiff’s collateral constitutional claim. As such, the Court finds that such a remand
aligns with a sentence six remand because it was not a substantive ruling or determination on
Plaintiff’s claim of entitlement to disability benefits so as to be considered a judgment under
Section 405(g). See Melkonyan, 501 U.S. at 98. Therefore, the case shall be reopened and
judgment entered in favor of Plaintiff. Accordingly, it is hereby
ORDERED:
1. Plaintiff’s Motion for Judgment as a Matter of Law (Doc. 26) is GRANTED.
2. The Clerk is directed to enter judgment in favor of Plaintiff.
DONE AND ORDERED in Tampa, Florida, on this 27th day of October, 2020.
cc: Counsel of Record
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