McBride v. Colvin

Filing 16

ORDER signed by Judge J.P. Stadtmueller on 8/17/2017: GRANTING 13 Commissioner's Motion to Remand and REMANDING the matter to the Commissioner of Social Security pursuant to Sentence Four of Section 205 of the Social Security Act, 42 U.S.C. §405(g). (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RANDOLPH MCBRIDE,

v.

Plaintiff,

Case No. 16-CV-1645-JPS

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

ORDER

Defendant.
Plaintiff filed this action complaining that the administrative law
judge (“ALJ”) evaluating his claim for disability insurance benefits and
supplemental security income had erred in determining that he was not
disabled. (Docket #1). Plaintiff initially submitted a brief in support of
reversal of the ALJ’s decision and for an order awarding him the soughtafter benefits. (Docket #12). The Commissioner responded with a motion to
remand the matter to the Social Security Administration (“SSA”) pursuant
to sentence four of 42 U.S.C. § 405(g) for a new hearing and decision.
(Docket #13). The Commissioner claims that while the matter should be
remanded to permit the ALJ to reassess Plaintiff’s complaints of pain and
back and eye impairment, the record is insufficiently developed to warrant
an outright award of benefits from this Court. Id. at 3–4.
Plaintiff thereafter withdrew his request for an award of benefits in
this case and concurs with the Commissioner’s request for remand. (Docket
#15). However, the parties did not submit a joint stipulation for remand,
because they disagree about what instructions should be given to the SSA
on remand and whether this Court should recommend that a new ALJ be
assigned to the case on remand. Id. at 1–2.

The Commissioner asks that this Court remand the case so that the
ALJ can correctly “evaluat[e] the other source opinions of record pursuant
to Social Security Ruling 06-3p, reevaluat[e] Plaintiff’s residual functional
capacity in accordance with Social Security Ruling 96-8p, and reevaluat[e]
Plaintiff’s symptoms in accordance with Social Security Ruling 16-3p as
part of the rehearing process.” (Docket #13-1). Plaintiff would prefer that
the Court remand with far more detailed instructions, including direction
to provide a de novo hearing and step-by-step instruction on what legal
standards the ALJ should apply in arriving at a new decision. (Docket #15
at 1-2).
The Court, consistent with its usual practice, will not issue any of the
instructions requested by the parties as part of the agreed-upon remand.
Simply put, the Commissioner and the SSA are in the best position, on
remand, to determine what course of action is necessary to comply with the
dictates of the governing regulations, statutes, and constitutional
provisions. Indeed, Plaintiff concedes that his proposed litany of
instructions “does not require the ALJ to do anything that is not already
required by Social Security regulations and rulings.” Id. at 2. For that
reason, the Court finds that such instructions are duplicative and
unnecessary.
Thus, the Court will simply order that the ALJ issue a new decision
consistent with all applicable rules and regulations as interpreted in
relevant Seventh Circuit case law. While this does not guarantee the correct
outcome, at least it will allow the ALJ to act in accordance with the Seventh
Circuit’s dictates. And if the ALJ were to make an adverse finding in error,
Plaintiff would, of course, be able to appeal that denial.

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Further, the Court will not instruct the SSA to assign a different ALJ
than was assigned for Plaintiff’s previous hearing. Such an instruction is
only warranted when the ALJ has demonstrated “a degree of bias. . .that
would disqualify him as a matter of due process from further participation
in the litigation. . .in which event the Social Security Administration’s own
regulation would disqualify him.” United States v. Thouvenot, Wade &
Moerschen, Inc., 596 F.3d 378, 386 (7th Cir. 2010) (citing 20 C.F.R. § 404.940).
Plaintiff has identified deficiencies in the ALJ’s decision, but he has not
alleged, let alone proven, that the previously-assigned ALJ exhibited the
kind of bias that would warrant reassignment. Indeed, Plaintiff concedes
that he “cannot claim that there is a basis for asking the Court to
recommend that a different ALJ be appointed to handle the claim on
remand” except his personal belief that it “may reduce the likelihood
another erroneous decision will be issued.” (Docket #15 at 1). This is not the
relevant inquiry for determining whether reassignment is appropriate.
For these reasons, the Court determines that the best course of action
is to grant the Commissioner’s motion to remand this case.
Accordingly,
IT IS ORDERED that the Commissioner’s motion to remand the
case (Docket #13) be and the same is hereby GRANTED; this matter be and
the same is hereby REMANDED to the Commissioner of Social Security
pursuant to Sentence Four of Section 205 of the Social Security Act, 42 U.S.C.
§ 405(g); and
IT IS FURTHER ORDERED that, on remand, the ALJ shall issue a
new decision consistent with all applicable rules and regulations as
interpreted in relevant Seventh Circuit case law.
The Clerk of Court is directed to enter judgment accordingly.
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Dated at Milwaukee, Wisconsin, this 17th day of August, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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