Woodworth v. Social Security, Commissioner of
Filing
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OPINION AND ORDER granting 15 Motion to Remand and granting 19 Motion to Remand. Signed by Magistrate Judge Stephanie Dawkins Davis. (THal)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENNIS J. WOODWORTH,
Case No. 16-10758
Plaintiff,
Stephanie Dawkins Davis
United States Magistrate Judge
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________/
OPINION AND ORDER
CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkts. 15, 19)
I.
PROCEDURAL HISTORY
On March 3, 2016, plaintiff Dennis J. Woodworth, filed the instant suit
seeking judicial review of the Commissioner’s unfavorable decision disallowing
benefits. (Dkt. 1). The parties consented to the jurisdiction of the undersigned
magistrate judge to conduct all proceedings. (Dkt. 13, 14). This matter is before
the Court on cross-motions for summary judgment. (Dkts. 15, 19). The parties
have agreed that this matter should be remanded, but disagree on some of the
details associated with the remand. The Court held a hearing via video
teleconference on February 21, 2017. (Dkt. 23). A recitation of the factual
underpinnings of plaintiff’s claim is dispensed with as the same is not necessary to
the Court’s consideration of the issues before it, which relate solely to the
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procedural mechanics for remand.
II.
ANALYSIS
While plaintiff did not raise the issue of bias in his initial brief, he refused to
consent to the Commissioner’s motion to remand unless the Commissioner agreed
to remand this matter to another ALJ on the basis on bias. Based on the response
brief, plaintiff is no longer asserting that the Court should address the issue of the
ALJ’s bias, but rather, asserts that this issue should be remanded to the Appeals
Council for consideration. As set forth in plaintiff’s response brief (Dkt. 20),
plaintiff is agreeable to a remand pursuant to Sentence Four, and the parties agree
on the following terms:
1.
Offer Plaintiff an opportunity for hearing;
2.
Take any further action needed to complete the administrative record;
3.
Further evaluate Plaintiff’s Residual Functional Capacity in the
context of the updated record in accordance with AR 98-4(6);
4.
Further evaluate the opinion evidence, providing specific reasons for
the weight given to that evidence;
5.
Further evaluate the Claimant’s subjective allegations of his
symptoms; and
6.
If warranted, obtain supplemental vocational expert testimony.
(Dkt. 20, Pg ID 415). At the outset of the hearing on this matter, the Court
identified three areas in dispute: (1) whether the Court could remand the issue to
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the Appeals Council to address the alleged bias of the ALJ; (2) whether the Court
could decide the issue of res judicata or whether this issue was for the ALJ to
decide in the first instance; and (3) whether the Court could direct the Appeals
Council to only consider the current application on remand and preclude the
Appeals Council from reconsidering a later decision that was favorable to
plaintiff. At the hearing in this matter, plaintiff’s counsel verbally conceded issues
2 and 3, and thus, they need not be considered any further by the Court.
As to the first issue, the parties are in disagreement on having this case
remanded back to the original ALJ. Plaintiff admits that he did not adequately
articulate his argument requesting a remand to a different ALJ in the initial brief
and did not raise this issue with the Appeals Council. Therefore, plaintiff
requests, instead, that this Court order the Appeals Council to look into remanding
plaintiff’s case to a different ALJ. Plaintiff outlines the specific issues he would
like the Appeals Council to consider as it relates to remanding to a different ALJ.
(Dkt. 20, Pg ID 417). In reply, the Commissioner says that plaintiff’s bias claim is
without merit, as discussed extensively in her motion for summary judgment.
According to the Commissioner, the request is fruitless because the Appeals
Council will not consider an issue not properly before it.
In the view of the Court, it does not have the authority to order the Appeals
Council to consider the issue of bias. As explained in Noble v. Colvin, 2013 WL
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3771496, at *4 (E.D. Ky. 2013), because the plaintiff did not raise allegations of
bias with the ALJ or the Appeals Council as instructed by 20 C.F.R. § 416 .1440,
the claim is arguably waived. Id. (citing Millmine v. Sec’y of Health & Hum.
Servs., 1995 WL 641300, at *2 (6th Cir. Oct. 31, 1995) (citing Muse v. Sullivan,
925 F.2d 785, 790-91 (5th Cir. 1991)) (“Absent good cause, failure to raise the
issue of bias before the Secretary constitutes waiver of the right to raise the issue
on appeal.”)). In Noble, the court did go on to address the issue of bias because
the plaintiff was represented by different counsel at her hearing. Id. Here too,
plaintiff was represented by different counsel at the administrative level. But, the
parties have already agreed that the Court should not decide the merits of the bias
issue.
And, in the view of the Court, the “new counsel” exception articulated in
Noble does not grant the Court authority to remand this issue to the appeals
council. This seems particularly true where the weight of authority goes against
the Court deciding such an issue on the merits where the plaintiff did not raise the
issue at the administrative level:
Federal courts have consistently construed § 404.040 as
providing a specific administrative process for resolving
claims of ALJ bias. See Grant v. Shalala, 989 F.2d 1132,
1344-46 (3d Cir. 1993) (ruling district courts lacked
authority to make independent finding of fact regarding
ALJ bias and that district court may only review
Commissioner’s findings concerning ALJ bias under 42
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U.S.C. § 405(g)); Joe v. Apfel, 1998 WL 683771, *5-6
(W.D.N.Y. July 10, 1998) (declining to address issue of
ALJ bias where claimant had not followed administrative
procedure outlined in 20 C.F.R. § 404.940); Schmidt v.
Callahan, 995 F.Supp. 869, 887-88 n. 16 (N.D. Ill. 1998)
(finding plaintiff had waived claim that ALJ was
judicially biased by failing to present such claim to
Appeals Council), aff’d, 201 F.3d 970 (7th Cir. 2000).
Compare Miles v. Chater, 84 F.3d 1307,1400-01 (11th
Cir. 1996) (observing that where comments to which
claimant objected were made by ALJ in the opinion
issued after the hearing, the claimant’s earliest
opportunity to object to such comments was before the
Appeals Council and, as claimant raised such issue to the
Appeals Council, which failed to address the issue, the
district court had authority to address the issue and
remand the matter for further consideration before a
different ALJ); Ventura v. Shalala, 55 F.3d 900, 902 (3d
Cir. 1995) (reaching issue of ALJ’s bias where claimant
“abided by the procedures set forth in the regulations
regarding disqualification of ALJs [§ 404.940] including
that claimant’s representative alleged during
administrative hearing that ALJ was prejudiced and
requested recusal which ALJ refused without
explanation, bias issue was raised before Appeals
Council which rejected such claim without explanation,
and district court similarly dismissed claim without
explanation).
Stebbins v. Astrue, 2008 WL 4855558, at *18 (W.D.N.Y. 2008), report and
recommendation adopted, 2008 WL 4855464 (W.D.N.Y. 2008); see also Wells v.
Apfel, 234 F.3d 1271 (6th Cir. 2000) (unpublished) (explaining a claimant’s
failure to request withdrawal of an ALJ during the hearing or in his request for
review before the Appeals Council would constitute a waiver of his right to object
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to the ALJ’s conduct). Thus, the Court declines to remand the issue of ALJ bias to
the Appeals Council.
III.
CONCLUSION
Based on the foregoing analysis and the agreement of the parties, the Court
ORDERS this matter REMANDED with the following instructions. The
Commissioner must:
1.
Offer Plaintiff an opportunity for hearing;
2.
Take any further action needed to complete the administrative record;
3.
Further evaluate Plaintiff’s Residual Functional Capacity in the
context of the updated record in accordance with AR 98-4(6);
4.
Further evaluate the opinion evidence, providing specific reasons for
the weight given to that evidence;
5.
Further evaluate the Claimant’s subjective allegations of his
symptoms; and
6.
If warranted, obtain supplemental vocational expert testimony.
IT IS SO ORDERED.
Date: March 31, 2017
s/Stephanie Dawkins Davis
Stephanie Dawkins Davis
United States Magistrate Judge
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CERTIFICATE OF SERVICE
I certify that on March 31, 2017, I electronically filed the foregoing paper
with the Clerk of the Court using the ECF system, which will send electronic
notification to all counsel of record.
s/Tammy Hallwood
Case Manager
(810) 341-7887
tammy_hallwood@mied.uscourts.gov
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