Smith v. BERRYHILL

Filing 15

ORDER remanding case for further administrative proceedings. Ordered by US MAGISTRATE JUDGE STEPHEN HYLES on 1-11-18. (bdd)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
JEREMY N SMITH,
Plaintiff,
v.
NANCY A BERRYHILL,
Commissioner of Social Security,
Defendant.

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CASE NO. 3:17-CV-39-MSH
Social Security Appeal

ORDER
Plaintiff Jeremy Smith brings this action seeking judicial review of the
Commissioner’s final decision to terminate disability insurance benefits awarded to him
on May 9, 2006. The Commissioner contends Plaintiff’s medical improvement as of
October 1, 2012, is sufficient to allow him to engage in sedentary work. Tr. 18. In
concluding that Plaintiff is capable of work, the Commissioner adopted the decision of an
Administrative Law Judge (“ALJ”) issued on December 11, 2015. Tr. 18-24, 1-3. The
ALJ conducted the hearing on November 3, 2015, but only assessed Plaintiff’s medical
condition through October 1, 2012. Tr. 21-22.
Social Security Ruling 13-3p requires each adjudicator in the administrative process
to consider whether a claimant is disabled at any time through the date of the adjudicator’s
final determination or decision. SSR13-3p, WL 785484 (Feb. 21, 2013). The Social
Security Act establishes the relevant standard of review and provides that an individual
may have previously awarded benefits terminated if substantial evidence demonstrates “the

individual is now able to engage in substantial gainful activity[.]” Social Security Act §
223(f), 42 U.S.C. § 423(f) (2015). It further provides that “any determination under this
section shall be made on the basis of the individual’s prior or current condition[.]” Id. By
issuing SSR13-3p, the Commissioner adopted as nationwide policy the holding of the Sixth
Circuit in Difford v. Sec’y of Health and Human Servs., 910 F.2d 1316, 1320 (6th Cir.
1990) (“the plain meaning of statutory references to ‘now’ or ‘current’ compels a
consideration of an individual’s ability to perform substantial gainful activity at the time
of the hearing.”). Thus, the Commissioner has ruled administratively that the statute
requires the final adjudicator to consider a claimant’s medical condition through the date
of their final determination or decision. SSR13-3p.
The Commissioner failed to follow her own ruling in Plaintiff’s case. Although she
argues that her failure to do so is harmless error, asserting that the medical evidence ignored
by the final adjudicator in the administrative process does not establish that Plaintiff
remains disabled, the Court cannot reach that conclusion without usurping the
Commissioner’s role in weighing the evidence. Comm’r’s Br. 5-7, ECF No. 13. To do so
would require the Court to substitute its judgment for that of the Commissioner. Dyer v.
Barnhart, 395F.3d 1206, 1210 (11th Cir. 2005). The Court is prohibited from speculating
how an ALJ or other adjudicator would weigh the evidence in the record after October 1,
2012. Falge v. Apfel, 150 F.3d 1320, 13213 (11th Cir. 1998). Therefore, the Court remands
this case to the Commissioner with instructions to follow the procedures she has set forth
in her own rulings for the evaluation of cessation of disability benefits.

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SO ORDERED, this 11th day of December, 2018.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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