HAMM v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE re 23 Report and Recommendations By JUDGE D. BROCK HORNBY. (jib)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NANCY A. BERRYHILL, ACTING
COMMISSIONER, SOCIAL SECURITY
CIVIL NO. 2:16-CV-627-DBH
ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On October 31, 2017, the United States Magistrate Judge filed with the
court, with copies to counsel, his Report and Recommended Decision.
defendant filed an objection to the Recommended Decision on November 14,
2017. I have reviewed and considered the Recommended Decision, together with
the entire record; I have made a de novo determination of all matters adjudicated
by the Recommended Decision; and I concur with the recommendations of the
United States Magistrate Judge for the reasons set forth in the Recommended
Decision, as clarified below, and determine that no further proceeding is
The Acting Commissioner faults the Magistrate Judge for stating “that
‘[t]he ALJ thus . . . failed to consider the most recent VA rating’ and that ‘[t]he
ALJ did not address . . . the most recent rating,” pointing out that the most
recent rating (October 2015) was submitted to the Appeals Council, not the ALJ.
Def.’s Objection at 5 (ECF No. 24). The Magistrate Judge’s reasoning is clear.
He correctly reported the chronology, noted that the Appeals Council ordered
that the administrative record be supplemented to include the October rating,
Recommended Dec. at 1-2 (ECF No. 23), but that the Appeals Council found that
the new rating was immaterial because it was “about a later time” and did not
support reconsideration of the ALJ’s decision. Id. at 5. The Magistrate Judge
also noted that the Acting Commissioner “does not directly challenge Plaintiff’s
contention that the [Appeals Council’s] ‘about a later time’ finding was incorrect,”
arguing instead that it was “not an ‘egregious error’ requiring a remand. Id.
Although the Magistrate Judge did not explicitly rule on that argument, his later
statements in the final paragraph of his Recommended Decision before the
Conclusion implicitly treated the Appeals Council’s handling of the October 2015
VA rating as incorrect.
In fact, the Appeals Council should have used the
October VA rating in its analysis or remanded the case to the ALJ to do so. Thus,
a remand is necessary as the Magistrate Judge recommended. See Mills v. Apfel,
244 F.3d 1, 5-7 (1st Cir. 2001) (district court can order remand based on Appeals
Council’s egregiously mistaken ground for denying review based on material new
In the alternative, the Magistrate Judge also correctly concluded that the
ALJ inadequately considered the earlier VA rating that was available to her and
Contrary to the Commissioner’s argument, Mills made clear review is available even if good
cause for failing to timely present new evidence is not shown. 244 F.3d at 6 (“In such a situation
[where good cause has not been shown], if the Appeals Council mistakenly rejected the new
evidence on the ground that it was not material, we think that a court ought to be able to correct
the records that supported it. This also warrants a remand. See Genness-Bilecki
v. Colvin, No. 1:15-CV-387-JHR, 2016 WL 4766229, at *2-5 (D. Me. Sept. 13,
2016); Flannery v. Barnhart, No. 06-37-B-W, 2006 WL 2827656 (D. Me. Sept.
29, 2006), rep. & rec. adopted, 2006 WL 3032419 (D. Me. Oct. 20, 2006);
Pinkham v. Barnhart, No. 03-116-B-W, 2004 WL 413306 (D. Me. Mar. 3, 2004),
rep. & rec. adopted, 2004 WL 1571610 (D. Me. Apr. 5, 2004).
It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED.
The administrative decision is VACATED and the
matter is REMANDED for further proceedings.
DATED THIS 5TH DAY OF DECEMBER, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
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