Trammell v. Commissioner of Social Security
REPORT AND RECOMMENDATION that 13 MOTION to Remand be granted, and that the case be remanded to the Commissioner for further administrative proceedings and a new decision. Objections to R&R due by 4/20/2017. Signed by Magistrate Judge Terence P. Kemp on 4/6/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Lonnie J. Trammell,
Case No. 2:16-cv-0547
Commissioner of Social Security, :
JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
This is a social security case.
Plaintiff Lonnie J.
Trammell had applied for disability insurance benefits in 2013.
The Commissioner’s final denial of that application came in 2016,
and Plaintiff then filed suit.
After the administrative record
was filed and Plaintiff submitted his statement of errors, the
Commissioner moved to remand for “further administrative
proceedings and a new decision.”
Plaintiff is not
opposed to a remand, but he has asked the Court to order the
Commissioner to hold a new hearing, which was not specifically
contemplated in the motion to remand.
Plaintiff asserts that he
will be prejudiced if only a paper review of the record occurs.
In reply, the Commissioner argues that because Plaintiff’s last
insured date preceded the ALJ’s decision, there is no basis for
ordering an additional administrative hearing, but also states
that the ALJ may decide to hold one if necessary and if, under
applicable procedures, “the facts warrant it.”
See Doc. 15, at
For the following reasons, it is recommended that the motion
be granted as filed.
There is not much case law on the question of whether a
Court can, or should, alter the conditions on which the
Commissioner seeks a voluntary remand.
However, 42 U.S.C.
§405(b)(1) gives the Commissioner of Social Security the power
“to hold such hearings and to conduct such investigations and
other proceedings as the Commissioner may deem necessary or
proper for the administration of this subchapter.”
broad grant of discretionary authority.
That is a
The Court of Appeals has
said that “[u]nder this scheme, the Secretary's responsibilities
are broad indeed.”
Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.
That means that the courts should give due deference to
the Commissioner’s authority to determine what kinds of
procedures are needed when a case is remanded.
See, e.g., Travis
v. Sullivan, 985 F.2d 919 (7th Cir. 1993).
Here, the Commissioner makes a plausible argument that a new
hearing will not be necessary.
Under those circumstances, where
Plaintiff has not made a persuasive case for the Court’s
overriding the Commissioner’s discretion, the remand should be on
the terms proposed by the Commissioner.
This does not preclude a
new hearing; the Court accepts the Commissioner’s representation,
in the reply, that “whether to provide a new hearing must be left
to the discretion of the ALJ.”
Doc. 15, at 1.
Of course, should
a new hearing not be held and an unfavorable decision be
rendered, Plaintiff would not be foreclosed, in any subsequent
appeal, from arguing that the ALJ abused his or her discretion by
failing to hold a hearing.
Based on the foregoing, it is recommended that the motion
for voluntary remand (Doc. 13) be granted, and that the case be
remanded to the Commissioner for further administrative
proceedings and a new decision.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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