Cope v. Colvin

Filing 13

ORDER denying 9 Motion to Remand - by Judge J Richard Creatura.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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RICHARD COPE,

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Plaintiff,

CASE NO. 2:15-cv-1744-JRC
ORDER ON MOTION TO REMAND

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 4). This matter is before the Court on defendant’s motion to

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remand and has been fully briefed (see Dkt. 9, 10, 12).
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After considering and reviewing the record, the Court concludes that defendant
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has failed to demonstrate good cause why this matter should be remanded to defendant
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ORDER ON MOTION TO REMAND - 1

1 for further action. Defendant does not contend that the recording of plaintiff’s oral
2 hearing was lost or inaudible or could not otherwise be transcribed, and does not contend
3 that plaintiff’s files cannot be located or are incomplete. Similarly, defendant does not
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contend that the record is incomplete or inadequate to provide for this Court’s review.
Although defendant contends the materials belonging to other claimants mistakenly were

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included in plaintiff’s files, such has not been demonstrated. Instead, it appears that the
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materials intentionally were included and that they support plaintiff’s claims in his
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complaint before this Court.
Therefore, defendant’s motion to remand is denied.

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BACKGROUND and PROCEDURAL HISTORY

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Plaintiff’s applications for disability insurance (“DIB”) benefits pursuant to 42

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13 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
14 U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
15 following reconsideration (see Complaint, Dkt. 1, p. 2). Plaintiff’s requested hearing was
16 held before Administrative Law Judge Larry Kennedy (“the ALJ”) on September 12,
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2013 (see id.). On September 27, 2013 the ALJ issued a written decision in which the
ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see

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id.).
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According to plaintiff’s complaint, plaintiff timely requested review of this matter
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to the Appeals Council, which denied plaintiff’s request for review on September 9, 2015
(see id.). Previously, on November 22, 2013, plaintiff had submitted additional evidence

24 to the Appeals Council which related to the period on or before the date of the ALJ

ORDER ON MOTION TO REMAND - 2

1 hearing decision (see id.). This additional evidence includes 54 decisions signed by the
2 ALJ during the period from late September 2012 through early summer of 2013 (see id.).
3 These decisions have been redacted of claimants’ names, claimants’ friends’ or relatives’
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names, and claimants’ birthdates and social security numbers (see id. at 2-3). Plaintiff has
requested that such documents be treated as confidential so that they will be sealed and

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not available for public view (see id. at 3). The Court notes that administrative records in
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Social Security cases generally are sealed when filed.
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Plaintiff alleges that the 54 decisions and other evidence submitted to the Appeals
Council provide evidence that the ALJ has a pattern or practice of improperly denying

11 disability and “also provide proof, together with the other evidence alleged [], of ALJ
12 Kennedy’s inability to render fair judgment in considering the SSD and SSI claims of
13 [plaintiff]” (id.). Plaintiff alleges that the record demonstrates “a pattern of decisions or
14 conclusions by ALJ Kennedy that are inconsistent with controlling case law and/or Social
15 Security regulations as well as due process” (id. at 5). Plaintiff also alleges that the
16 finding by defendant that plaintiff is not entitled to benefits “is not based upon substantial
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evidence and it should be reversed, and defendant’s failure to revise the findings is also
inconsistent with due process under the Fifth Amendment of the United States

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Constitution” (id.).
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Defendant has filed a motion to remand this matter to defendant for further action,
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contending that good cause exists for such remand because “materials belonging to other
claimants were mistakenly included in Plaintiff’s files” (see Dkt. 9, p. 2).

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ORDER ON MOTION TO REMAND - 3

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may, on motion of the Commissioner of

3 Social Security made for good cause shown before the Commissioner files the
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Commissioner's answer, remand the case to the Commissioner of Social Security for
further action by the Commissioner of Social Security . . . .” 42 U.S.C. § 405(g).

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DISCUSSION
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The only argument defendant makes in her motion for remand is that “materials
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belonging to other claimants were mistakenly included in plaintiff’s files” (Dkt. 9, p. 2).
However, plaintiff argues that the materials support plaintiff’s Constitutional due process

11 allegations in his complaint and that without the materials “this Court will be unable
12 properly to review plaintiff’s appeal including, but not limited to, his claim that the [ALJ]
13 was biased against plaintiff and persons like plaintiff” (Dkt. 10, pp. 1-2). Plaintiff also
14 contends that he is appealing, among other things, the decision by the ALJ not to include
15 or consider five other documents, including documents put out by the American Medical
16 Association and the Surgeon General of the United States, when rendering his decision,
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and without this evidence, the “Court will be unable to resolve plaintiff’s claim” (Dkt. 10,
p. 5).

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Plaintiff also cites a Ninth Circuit case in which the court held that “when a
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claimant submits evidence for the first time to the Appeals Council, which considers that
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evidence in denying review of the ALJ’s decision, the new evidence is part of the
administrative record, which the district court must consider in determining whether the

24 Commissioner’s decision is supported by substantial evidence.” Brewes v. Comm’r of

ORDER ON MOTION TO REMAND - 4

1 SSA, 682 F.3d 1157, 1159-60 (9th Cir. 2012) (emphasis added). Although it is not clear at
2 this time whether or not the Appeals Council considered the evidence at issue when it
3 denied review of the ALJ’s decision, the Court notes the argument by plaintiff that the
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Appeals Council “presumably believed this evidence met the requirements of §§
404.970(b) and 404.976 because it did not return the evidence to the claimant; rather, it

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made the evidence part of the record” (Dkt. 10, p. 6). Although defendant notes in a
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footnote a proposed change to the rules which would remove the language indicating that
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the Appeals Council will return additional evidence to the claimant that is not material,
this change has not been effectuated (see Dkt. 12, p. 8 n.6). Instead, here, as in Brewes,

11 “the Appeals Council accepted [plaintiff’s] new evidence and made it part of the record,
12 apparently concluding that it was material within the meaning of 20 C.F.R. §
13 404.970(b),” Brewes, supra, 682 F.3d at 1164, although defendant contends that it did so
14 in error.
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In support of defendant’s argument, defendant includes the following discussion:
The Joint Conference Committee of Congress, in reporting upon the
Social Security Disability Amendments of 1980 (to the Social Security
Act), noted that “there are sometimes procedural difficulties which
prevent the Secretary from providing the court with the transcript of
administrative proceedings.” (Internal citation to H. R. CONF. REP. 96944, 89, 1980 U.S.C.C.A.N. 1392, 1407). The Committee provided
several examples of what might be considered good cause:

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Where, for example, the tape recording of the claimant’s oral
hearing is lost or inaudible, or cannot otherwise be transcribed, or
where the claimant’s files cannot be located or are incomplete,
good cause would exist to remand the claim to the Secretary for
appropriate action to produce a record which the courts may review
under 205 (g) of the Act.

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ORDER ON MOTION TO REMAND - 5

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(Internal citation to id.).

2 (Dkt. 9, p. 2).
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Defendant’s argument and citations do not support defendant’s argument for good
cause here. Here, defendant does not contend that she is unable to provide the Court with
the transcript of the administrative proceeding; does not contend that the oral hearing is

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lost or inaudible, or cannot otherwise be transcribed; does not contend that plaintiff’s files
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cannot be located or are incomplete and does not contend that she cannot produce a
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record which adequately provides for the Court’s review. The fact that there may be extra
information in the record does not preclude this Court from conducting a proper review.
The Court also finds persuasive the following argument from plaintiff:
Defendant’s motion cites the Joint Conference Committee Report as
referencing “procedural difficulties” and giving some examples of what
might be considered good cause, e.g., where files cannot be located or
are incomplete. What is missing, however, from defendant’s motion are
any facts or argument explaining or even identifying the “procedural”
difficulties that prevented defendant from providing a full transcript of
the administrative proceedings, or what were the “materials belonging to
other claimants,” supposedly included in the record, or what was the
supposed “mistake” including those materials. Without such facts and
explanation, defendant does not come close to showing good cause. Nor
should defendant be allowed to wait until her reply to come up with facts
supposedly establishing good cause. That would be unfair to plaintiff
who would be unable to respond to defendant’s reply.

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(Dkt. 10, p. 4).
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Plaintiff argues that if defendant’s motion is successful, it “would effectively
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prohibit federal court review of blatantly unconstitutional denials of Social Security
benefits based on an ALJ’s general bias against disfavored groups” (Dkt. 10, p. 6).

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ORDER ON MOTION TO REMAND - 6

1 adjudicating other Social Security applications is not relevant to a determination by this
2 Court of whether or not the ALJ is biased against the disfavored group (see Reply, Dkt.
3 12, pp. 4-5 (it is “inappropriate” for a claimant to submit “records of other claimants’
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disability claims”)).
Defendant makes a number of arguments for the first time in her reply brief (Dkt

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12). However, these issues will be discussed only briefly, as fairness requires that all
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issues be raised in the initial motion or brief. See U.S. v. Levy, 391 F.3d 1327, 1335 (11th
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Cir. 2004) (“raise the issue in your initial brief or risk procedural bar”); Cf. Thompson v.
Commissioner, 631 F.2d 642, 649 (9th Cir. 1980), cert. denied, 452 U.S. 961 (1981)

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12 v. Puchi, 441 F.2d 697, 703 (9th Cir. 1971), cert. denied, 404 U.S. 853 (1971)). The
13 Court notes that plaintiff has been denied any opportunity to respond to these arguments
14 raised for the first time in defendant’s reply brief.
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For example, defendant argues that when “deciding whether an individual is

16 disabled, the Commissioner considers the evidence in each individual’s case record; and
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the case record should only contain material about that claimant” (Dkt. 12, p. 5 (citations
omitted)). However, defendant’s argument misses the point. It is not the job of this Court

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to decide whether or not plaintiff is disabled: that is the job of the Commissioner. It is the
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job of the Court to adjudicate issues raised in plaintiff’s complaint, including whether or
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not the ALJ’s finding that plaintiff is not disabled is based on substantial evidence and
without harmful legal error. One of the issues alleged in plaintiff’s complaint here is that

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ORDER ON MOTION TO REMAND - 7

1 plaintiff has been denied Constitutional due process because his Social Security
2 applications were denied by an ALJ who is biased.
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Defendant also argues that “the Appeals Council does not have authority to review
evidence of general bias claims, such as plaintiff alleges here (Dkt. 12, p. 6 (citations
omitted)). Even if it arguably is beyond the authority of the Appeals Council to make a

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determination of general bias, it is not beyond the authority of this Court. As noted by
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plaintiff, “it is well established that a ‘trial before an unbiased judge is essential to due
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process,’ and that the same due process requirement applies to ‘administrative as well as
judicial adjudicators,’ including Social Security ALJs” (Dkt. 10, pp. 7-8 (citing and

11 quoting Johnson v. Mississippi, 403 U.S. 212, 216 (1971); Gibson v. Berryhill, 411 U.S.
12 564, 579 (1973); Richardson v. Pearles, 402 U.S. 389, 401-02 (1971); see also 20 C.F.R.
13 § 404.940 (“an administrative law judge shall not conduct a hearing if he or she is
14 prejudiced or partial with respect to any party or has any interest in the matter pending for
15 decision”))). Any suggestion to the contrary does not entail good cause to remand this
16 matter to defendant in order to remove material from this Court’s review.
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Defendant also argues that she should be allowed to “develop the necessary factual
background upon which the decisions should be based” (Dkt. 12, p. 9 (citation omitted)).

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Defendant argues that she should “be given a chance to discover and correct [her] own
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errors" (id.). However, defendant’s own motion makes it clear that defendant does not
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wish to develop the factual background or correct any errors of fact, but simply wants to
remove some information from this Court’s review (see Motion, Dkt. 9, p. 2). Such is not

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ORDER ON MOTION TO REMAND - 8

1 demonstrates that good cause exists where the record is unavailable or incomplete, or
2 where the Administration is unable to produce a record which would allow for the
3 Court’s review:
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Where, for example, the tape recording of the claimant’s oral hearing is
lost or inaudible, or cannot otherwise be transcribed, or where the
claimant’s files cannot be located or are incomplete, good cause would
exist to remand the claim to the Secretary for appropriate action to
produce a record which the courts may review under 205 (g) of the Act.

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(Dkt. 9 (quoting H. R. CONF. REP. 96-944, 89, 1980 U.S.C.C.A.N. 1392, 1407)). This
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quote does not support the contention by defendant that good cause exists when the
record is complete and is sufficient to allow for review by the Court, but defendant wants

11 to remove from it some information that plaintiff submitted to the Administration and
12 contends is relevant for this Court’s review.
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Finally, defendant argues that this Court does not have “jurisdiction to review

14 decisions of the Appeals Council denying a request for review of an ALJ’s decision,
15 because the Appeals Council decision is a non-final agency action” (Dkt. 12, p. 8
16 (citations omitted)). However, again, defendant misses the point. Plaintiff has alleged that
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the ALJ’s written decision, which this Court does have jurisdiction to review, was issued
in violation of plaintiff’s Constitutional due process rights. As stated by the Supreme

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Court, “[c]onstitutional questions obviously are unsuited to resolution in administrative
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hearing procedures and, therefore, access to the courts is essential to the decision of such
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questions.” Califano v. Sanders, 430 U.S. 99, 109 (1977)). The Court noted the “wellestablished principle that when constitutional questions are in issue, the availability of

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ORDER ON MOTION TO REMAND - 9

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CONCLUSION

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Based on the stated reasons and the relevant record, the Court ORDERS that

3 defendant’s motion for remand is DENIED.
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Dated this 16th day of February, 2016.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON MOTION TO REMAND - 10