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Barber v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division

June 4, 2019

TONYA SUE BARBER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Barrett, J.

          ORDER

          Karen L. Litkovitz, United States Magistrate Judge

         This matter is before the Court on the Commissioner's motion to remand for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) (Doc. 14), plaintiffs response in opposition (Doc. 15), and the Commissioner's reply memorandum in support of the motion (Doc. 16).

         I. Background

         Plaintiff protectively filed an application for supplemental security income (SSI) on December 20, 2013, alleging an onset date of disability of December 20, 2013. (Tr. 22). Administrative Law Judge (ALJ) Peter Beekman held a video hearing on June 21, 2017, and issued a decision denying plaintiffs claim for benefits on July 26, 2017. (Tr. 22-38). After the Appeals Council denied review, plaintiff appealed ALJ Beekman's decision to this Court on June 1, 2018. (Doc. 1). Plaintiff filed her statement of errors on September 25, 2018. (Doc. 9). Thereafter, the Court granted the Commissioner two extensions of time in which to file a memorandum in opposition to plaintiffs statement of errors. (Docs. 11, 13). The final deadline for the Commissioner's memorandum was January 9, 2019. (Doc. 13). The Commissioner did not file a memorandum in opposition and instead filed the present motion to remand on January 28, 2019. (Doc. 14).

         While plaintiffs appeal was pending in this case she was awarded disabled widow's benefits on a subsequently filed application in 2018. (Doc. 15 at 5-6). Plaintiff was given a disability onset of July 27, 2017-the day after ALJ Beekman's decision denying SSI benefits in the present case. (Id. at 2, 5-6).

         II. The Commissioner's Motion to Remand

         The Commissioner concedes "that the ALJ committed errors in evaluating the evidence and as such, a remand for further evaluation of the evidence and a new decision is warranted" on plaintiffs SSI claim. (Doc. 14 at 1). The Commissioner states that the parties attempted to negotiate a joint motion to remand but were unsuccessful. Because plaintiff did not want the favorable decision on her widow's claim to be disturbed on a remand ordered by this Court on her SSI claim, [1] plaintiff opposed a joint motion to remand her SSI claim. (Id.).

         Plaintiff opposes the motion for remand and seeks three alternative forms of relief: (1) a decision on the merits of her appeal to include a reversal and remand for an immediate award of SSI benefits as of her alleged onset date of December 20, 2013[2]; (2) an order directing the Commissioner to "defend the ALJ's final decision" on her SSI claim; or (3) an order directing the Commissioner to produce the medical records considered in conjunction with plaintiffs 2018 application for disabled widow's benefits so the Court can review the Commissioner's onset date determination of July 27, 2017 in the widow's claim to determine whether an earlier onset date of disability is justified. Plaintiff further requests that if the Court grants the Commissioner's motion to remand, the Court should direct the Commissioner on remand to solely consider plaintiffs SSI disability claim from December 20, 2013 (plaintiffs alleged onset date) through July 26, 2017 (the date of ALJ Beekman's decision) without disturbing or reviewing the favorable disability decision plaintiff received on her disabled widow's claim. (Doc. 15).

         The Commissioner argues that ordering the Commissioner to defend ALJ Beekman's decision would be futile because it concedes the ALJ's decision is not supported. The Commissioner also argues that any remand by this Court should not include an order requiring the Commissioner to preserve the favorable disability finding in plaintiffs widow's benefits claim. (Doc. 14 at 2). The Commissioner contends that the decision on plaintiff's disabled widow's claim is not before this Court, and the Court lacks jurisdiction to consider that claim. The Commissioner also argues that plaintiffs request for a Court order preserving the subsequent disabled widow's benefits decision is "against the policy underlying exhaustion of administrative remedies" and would circumvent established administrative procedures for handling remand claims where a claimant has been found disabled on a subsequent application. (Id., at 4). The Commissioner explains that upon remand of a final decision for a claimant who was determined disabled in a subsequent decision, the Appeals Council "will review the file for information concerning the subsequent allowance and will make a determination as to how the subsequent decision is affected." (Id. at 5) (citing HALLEX I-1-10-55(F)). Finally, the Commissioner asserts that the Court lacks jurisdiction to order the Commissioner to produce the medical records related to plaintiffs favorable disability decision on her disabled widow's application. (Doc. 16 at 3).

         III. Resolution

         The Commissioner has conceded that the ALJ's decision is not supported by substantial evidence and should be reversed. Therefore, ordering the Commissioner to defend this case on its merits, as plaintiff requests, would be a useless gesture.

         The Court does not have jurisdiction to order the Commissioner to produce the medical records submitted in connection with plaintiffs 2018 disabled widow's application or to review the onset date selected by the Commissioner as plaintiff requests. The 2018 application is not before the Court and there is no indication that plaintiff had a hearing on this application, which is a prerequisite to federal court review. See 42 U.S.C. § 405(g) (limiting judicial review to "any final decision of the Commissioner of Social Security made after a hearing to which he was a party. ..."). Plaintiff has not cited any legal authority justifying such a request and the Court is aware of none.

         In addition, to the extent the Court determines that remand of this matter for further proceedings is warranted, plaintiff is not entitled to an order limiting the scope of remand to a reconsideration of the merits of plaintiff s December 2013 SSI application and prohibiting the reopening and reexamination of her favorable disabled widow's benefits decision, This precise issue was ...


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