Darby v. Commissioner of Social Security

Filing 21

OPINION AND ORDER: Plaintiff's 12 MOTION for Order Reversing the Decision of the Commissioner is GRANTED and Defendant's 17 MOTION for Entry of Judgment Under Sentence Four of 42 U.S.C. § 405(g) With Reversal and Remand of the Cause to the Defendant is GRANTED, in part. Signed by Judge John M. Conroy on 10/18/2018. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Troy D.,
Plaintiff,
v.

Civil Action No. 2:17–cv–235

Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 12, 17)
Plaintiff Troy D. brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the
Commissioner of Social Security denying his applications for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI). Pending before the Court
are Plaintiff’s motion to reverse the Commissioner’s decision for further proceedings
and a new decision (Doc. 12), and the Commissioner’s parallel motion to remand the
same decision for further proceedings and a new decision (Doc. 17).
The parties agree that Plaintiff’s claim should be remanded, but disagree
regarding the terms of the remand order. Specifically, Plaintiff argues in his motion
that, on remand, the ALJ should be required to: (a) reopen Plaintiff’s prior DIB/SSI
claim and consider whether Plaintiff was disabled for the entire alleged disability
period beginning on February 20, 2008; (b) reanalyze the relevant treating
physician opinions; and (c) formulate a new residual functional capacity (RFC)

determination. (See Docs. 12, 12-1.) The Commissioner asserts in her motion that
the claim should be remanded for the sole purpose of determining if substance
abuse was a contributing factor material to Plaintiff’s disability. (See Doc. 17.) The
Commissioner explains that the ALJ erred in “attempt[ing] to address [the]
materiality of [Plaintiff’s] substance abuse without going through th[e required
two-step] sequential evaluation process.” (Id. at 6 (citing AR 24, 35).) The
Commissioner further states that the ALJ’s analysis of Plaintiff’s mental RFC
focused on Plaintiff’s functionality without drug abuse (after he began opioid
treatment), but the ALJ should have first determined Plaintiff’s mental RFC with
the drug abuse. (See id.)
Plaintiff filed a response to the Commissioner’s motion, objecting to the
Commissioner’s assertion that the claim should be remanded for the sole purpose of
determining whether substance abuse was a contributing factor material to
Plaintiff’s disability, and reiterating that the Court should remand the claim to
consider all the issues raised in Plaintiff’s motion, including the ALJ’s alleged
de facto reopening of Plaintiff’ original application; the ALJ’s rejection of the
treating physician opinions; and the ALJ’s RFC finding that Plaintiff would be off
task for not more than 10% of the workday. (See Doc. 18.) Plaintiff explains that
the Commissioner has not objected to or opposed any of these issues, and thus the
Court should reverse for the reasons explained in Plaintiff’s motion. (See id. at 1.)
Plaintiff further asks that the Court consider and decide at this time whether the
ALJ reopened Plaintiff’s prior claim, asserting that, by reviewing the entire record

2

and rendering a decision on the merits, the ALJ constructively reopened the claim.
(See id. at 1–2.)
The Commissioner filed a reply to Plaintiff’s response, asserting that the
Court need not make a decision regarding whether the ALJ reopened the prior
claim because, “[w]hen the Appeals Council remands a case . . . after a court
remand, [it] generally vacates the entire previous ALJ decision, and the ALJ
considers all issues de novo.” (Doc. 19 at 2.) Plaintiff filed a response to the
Commissioner’s reply, stating that the Commissioner waived the argument that the
ALJ did not reopen the prior claim by failing to include it in her original motion to
remand. (See Doc. 20 at 2.) Moreover, Plaintiff refutes the Commissioner’s claim
regarding reopening the prior claim, contending that, if the Court’s remand order
includes findings on the issue, the Commissioner is bound by those findings under
the law of the case doctrine. (See id. at 1.)
Given the parties’ agreement to remand Plaintiff’s claim, it is a waste of
judicial resources for the Court to consider either Plaintiff’s or the Commissioner’s
substantive arguments at this time. In general, where, as here, the plaintiff and
the Commissioner agree that the ALJ’s decision contains a legal or factual error
requiring remand, the best practice is for the parties to submit a stipulated order
for the Court’s signature, remanding the matter for further proceedings and a new
decision, rather than the parties filing briefs disputing which issues should be
considered and/or whether a hearing should be held on remand. See Burns v.
Astrue, Civil No. 09–109–P–H, 2009 WL 4910483, at *1 (D. Me. Dec. 13, 2009)

3

(“When this court remands a Social Security appeal before considering its merits
because the parties agree that further action by the [C]ommissioner is warranted, it
remands for the reasons and with the conditions to which the parties have agreed.”).
Clearly, the parties and the court all have an interest in the efficient administration
of social security claims and the avoidance of unnecessary litigation. Voluntary
remand motions are encouraged when the Commissioner discovers reversible error
during litigation, and the court’s involvement in the remand in those cases should
be swift in order for the claim to proceed toward resolution.
On remand, the Appeals Council may exercise its discretion in regard to
which ALJ findings to affirm, modify, or reverse, 20 C.F.R. §§ 404.983, 416.1483;
and it may do so based on the same arguments that counsel would present to the
court. It makes little sense for the court to referee the scope of a voluntary remand
order when the Commissioner retains decision-making discretion on remand. See
Burns, 2009 WL 4910483, at *1 (“There is no need to spend the court’s and the
parties’ time conducting oral argument on the merits of the current appeal when
any . . . issues raised by that appeal may well be resolved by the remand to which
the parties agree, but for a single phrase of unremarkable language.”). Therefore,
the Court grants the parties’ request to remand, and remands for further
proceedings and a new decision regarding each issue addressed in Plaintiff’s and
the Commissioner’s motions, for the period beginning on February 20, 2008,
including: the ALJ’s analysis of the treating physician opinions; the ALJ’s finding
that Plaintiff would be off task for not more than 10% of the workday; and the ALJ’s

4

analysis of whether Plaintiff’s substance abuse was a contributing factor material to
his disability.
Regarding the ALJ’s constructive reopening of the prior claim, the Court
agrees with Plaintiff that the ALJ did constructively reopen that claim, as the ALJ
made findings on the merits for the entire period from Plaintiff’s original alleged
disability onset date of February 20, 2008 through the date of the decision. (See AR
21, 40 (ALJ stating that Plaintiff “has not been under a disability . . . from February
20, 2008, through the date of this decision”); see also AR 29, 31–33, 35, 37–38 (ALJ
considering evidence from the period under review in the prior application,
including evidence dated August 2008, February 2009, and October 2011).) See
Byam v. Barnhart, 336 F.3d 172, 180 (2d Cir. 2003) (“If the Commissioner reviews
the entire record and renders a decision on the merits, the earlier decision will be
deemed to have been reopened, and any claim of administrative res judicata to have
been waived.” (internal quotation marks omitted)); Sanville v. Comm’r of Soc. Sec.,
Civil Action No. 2:16–cv–251, 2017 WL 4174783, at *6 (D. Vt. Sept. 20, 2017)
(“When the ALJ, in denying a petition to reopen an earlier application, addresses
the merits of that application, he is said to have constructively reopened the prior
application.”). The Commissioner’s motion appears to support this finding (though
she states otherwise in her later reply (see Doc. 19)), as it includes discussion of two
of Plaintiff’s drug-related incidents occurring in March 2010 and August 2011, both
within the period of the prior claim. (See Doc. 17 at 6 (citing AR 562, 637).) Were
the Court to leave open the question of whether the ALJ reopened the prior claim,

5

the Commissioner could possibly evade the consequences of the reopening by
seeking remand solely on another ground, e.g., the ALJ’s failure to make a finding
on the materiality of Plaintiff’s substance abuse. (See Doc. 18 at 2, Doc. 20 at 2).
Accordingly, the Court GRANTS Plaintiff’s motion to remand (Doc. 12);
GRANTS the Commissioner’s motion to remand (Doc. 17), in part; and REMANDS
for further proceedings and a new decision. On remand, the Commissioner shall
reconsider: (1) the ALJ’s analysis of the opinions of treating physicians Dr. Richard
Lautenback, Dr. Dean Mooney, and Dr. Dean McKenzie; (2) the ALJ’s finding that
Plaintiff would be off task for no more than 10% of the workday; and (3) the
materiality of Plaintiff’s substance abuse. Moreover, given the ALJ’s constructive
reopening of the prior claim, the Commissioner shall consider the prior claim in the
new decision, and the alleged disability period beginning on February 20, 2008.
Dated at Burlington, in the District of Vermont, this 18th day of
October 2018.
/s/ John M. Conroy
..
John M. Conroy
United States Magistrate Judge

6