Chute v. Astrue

Filing 85

ORDER granting 53 Motion to Remand; denying as moot 65 Motion to Stay the Briefing Schedule; denying as moot 75 Motion to Modify the Decision of the Commissioner; granting 81 Motion to Remand. Signed by Chief Judge Jeffrey L. Viken on 10/29/13. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GARY LEE CHUTE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration,
Defendant.

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CIV. 11-5062-JLV

ORDER GRANTING
MOTION TO REMAND
PURSUANT TO SENTENCE
FOUR OF 42 U.S.C. § 405(g)

On August 5, 2011, plaintiff Gary Lee Chute filed a complaint appealing
the denial of his application for disability insurance benefits and supplemental
security income benefits by defendant, the Commissioner of the Social Security
Administration (“Commissioner”). (Docket 1). On March 7, 2012, the court
granted defendant’s motion to remand pursuant to sentence six of 42 U.S.C.
§ 405(g). (Docket 23). On September 27, 2012, Mr. Chute filed a motion to
enforce the court’s remand order. (Docket 24). Mr. Chute argued the parties
willfully failed to take any action on the court’s March 7, 2012, remand order.
Id. The court held a status conference and was informed a hearing for Mr.
Chute was scheduled before an Administrative Law Judge on December 11,
2012. (Docket 36).
On remand, the Administrative Law Judge (“ALJ”) issued a partially
favorable decision, finding Mr. Chute was disabled beginning on January 3,

2012. The Commissioner now moves the court for an order reversing and
remanding this action for further administrative proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). (Dockets 53 & 81). The basis for the
motion to remand is as follows:
The Commissioner acknowledges that the ALJ erred in
limited respects, and she believes that further
administrative action is warranted in this case. On
remand, the Appeals Council will remand the case to an
administrative law judge [ALJ] for a de novo hearing, and
(1) to reevaluate the onset of the claimant’s disability
pursuant to SSR 83-20 (evaluating the medical evidence
including the opinions of Dr. Van Egeraat and calling a
medical expert), and (2) to evaluate the evidence in light
of the claimant’s amended alleged onset of disability of
July 12, 2008.
(Docket 54 at p. 1).
Mr. Chute opposes the motion and argues it is being “filed for the
purpose of invalidating this Court’s sentence six remand order . . . .” (Docket
58 at p. 1). Mr. Chute contends he has always alleged his onset of disability
was July 12, 2008. Id. The government confirmed “the Appeals Council has
been contacted by the agency counsel and advised it will exercise its discretion
to leave the current finding of disability undisturbed.” (Docket 69 at p. 2).
Defendant notes in her brief, “[t]he agency will not disturb the ALJ’s finding
that [Mr. Chute] was disabled beginning on January 3, 2012[,] through the
date of the ALJ’s decision on January 14, 2013.” Id. The only issue on remand

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is to determine whether the alleged onset of disability occurred prior to
January 3, 2012, as Mr. Chute contends. Accordingly, it is hereby
ORDERED that defendant’s motions to remand (Dockets 53 & 81) are
granted.1
IT IS FURTHER ORDERED that the Commissioner’s decision in this
matter is reversed and remanded pursuant to sentence four of 42 U.S.C.
§ 405(g) for further administrative proceedings. See Shalala v. Schaefer, 509
U.S. 292 (1993).
IT IS FURTHER ORDERED that upon remand, the ALJ shall take further
administrative action as required, including (1) reevaluating the onset of Mr.
Chute’s disability pursuant to SSR 83-20 (evaluating the medical evidence
including the opinions of Dr. Van Egeraat); and (2) to evaluate the evidence in
light of Mr. Chute’s alleged onset of disability of July 12, 2008.

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The court notes if the defendant’s motions to remand were denied and the
court considered Mr. Chute’s motion to modify the decision of the
Commissioner, the result would be the same. This court is not authorized to
adopt its own findings of fact but must accept the Commissioner’s findings of
fact if they are supported by substantial evidence. 42 U.S.C. § 405(g); Choate
v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the
Commissioner’s decision to determine if an error of law was committed. Smith
v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). In this case, the Commissioner
acknowledges the ALJ erred by failing to consider certain evidence related to
the onset of Mr. Chute’s disability. Because the ALJ failed to consider this
evidence, the court could not consider this evidence in reversing the ALJ’s
determination; rather, the court would be required to remand the case to the
ALJ for further consideration.
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IT IS FURTHER ORDERED that plaintiff’s motion to modify the decision
of the Commissioner (Docket 75) is denied as moot.
IT IS FURTHER ORDERED that defendant’s motion to stay the briefing
schedule (Docket 65) is denied as moot.
IT IS FURTHER ORDERED that the current briefing schedule (Docket 49)
is vacated.
IT IS FURTHER ORDERED that the government shall provide the court
with a progress report every thirty days regarding the status of Mr. Chute’s
case on remand.
Dated October 29, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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