Small v. Astrue, No. 7:2008cv00141 - Document 27 (E.D.N.C. 2009)
Court Description: ORDER denying 19 Motion for Judgment on the Pleadings; granting 21 Motion for Judgment on the Pleadings; and, adopting 25 Memorandum and Recommendations. Signed by Chief Judge Louise Wood Flanagan on 09/21/09. Copies served electronically. (Baker, C.)
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Small v. Astrue Doc. 27 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION No.7:08-CV-141-FL MITCHELL R. SMALL, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ORDER ) ) This matter is before the court on the parties' cross-motions for judgment on the pleadings pursuant to Federal Rule ofCivil Procedure 12(c) (DE ## 19,21). Pursuant to 28 U.S.C. § 636(b)(l), United States Magistrate Judge Robert B. Jones, Jr. entered a memorandum and recommendation ("M&R") wherein he recommended that the court deny plaintiffs motion, grant defendant's motion, and uphold the Commissioner's final decision (DE # 25). Plaintifftimely filed an objection to the M&R (DE # 26), and defendant did not file a response. In this posture, the matter is ripe for ruling. For the reasons that follow, the court accepts the magistratejudge's findings and recommendations, rejects plaintiffs objections to the M&R and upholds the decision denying further Disability Insurance Benefits ("DIB"). STATEMENT OF THE CASE Plaintifffiled an application for DIB on August 18,2003, alleging disability beginning on August 16, 2002. (R. at 58-60.) Plaintiffs claim was denied initially and upon reconsideration. (R. at 34-37,40-41, 56-57.) On May 19,2005, plaintiffappeared before an administrative lawjudge ("ALJ"). At this hearing, plaintiffwas represented by counsel and a vocational expert testified. (R. at 384-411.) On July 13,2006, Dockets.Justia.com the ALJ issued a decision granting a closed period ofdisability and conferring DIB for the period from August 16,2002 to April 6, 2005. (R. at 13-32.) Plaintiff requested a review of the ALl's decision, alleging that his disability continued after April 6, 2005, and submitted additional evidence in support ofhis request. (R. at 12, 331-39.) The Appeals Council incorporated the additional evidence into the record but denied plaintiff s request for review on July 16,2008. (R. at 6-9.) On September 5, 2008, plaintifffiled a complaint in this court seeking review of the ALl's decision. DISCUSSION A. Standard of Review This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3) to review the Commissioner's denial ofbenefits. Pursuant to those sections, this court must uphold the factual fmdings ofthe ALJ "ifthey are supported by substantial evidence and were reached through application ofthe correct legal standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)(superseded by statute on other grounds) (citing 42 U.S.C. §§ 405(g), 1383(c)(3)); Coffman v. Bowen, 829 F.2d 514,517 (4th Cir. 1987)). "Substantial evidence is ... such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,401 (1971). The standard is met by "more than a mere scintilla ofevidence but ... less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). To assist it in making such a determination, the court may "designate a magistrate judge to conduct hearings ... and to submit ... proposed findings offact and recommendations for the disposition" ofa variety of motions, including motions for judgment on the pleadings. 28 U.S.C. § 636(b)(1 )(B). In addressing plaintiffs objection to the M&R, the court "shall make a de novo determination ofthose 2 portions ofthe report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1 )(C). Upon careful review ofthe record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistratejudge." Id.; see Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983). B. Plaintiffs Objections to the M&R Plaintiffraises two objections to the magistratejudge's findings and recommendations. First, plaintiffcontends that by considering additional evidence submitted to the Appeals Council, which incorporated the evidence into the record but declined to review the ALl's decision, the magistrate judge impermissibly assumed the fact-finding role delegated to the ALl. (PI.'s Obj. 4.) Second, plaintiffargues that, assuming the ALl's determination as ofthe date ofthe hearing was correct, the proper disposition would be for the court to remand to the ALl for a determination ofDIB for the period after that date. (PI. 's Obj. 7.) Plaintiffcontends that the pendency ofthe appeals process has rendered him ineligible to claim benefits from the date ofthe hearing, May 19,2005, through August 2007, and that due process requires that he be given an opportunity to present evidence ofdisability during this period to an AU. (pI.'s Obj. 8-9.) The court addresses these two objections in turn. 1. New Evidence Submitted to the Appeals Council Plaintifffirst contends that the magistratejudge "engaged in impermissible post hoc rationalization for the three years after the record closed on May 19, 2005." (PI.'s Obj. 4.) Specifically, plaintiffalleges that the magistrate judge "selectively emphasiz[ed] only the evidence that supported continued ability to work, and discount[ed] the medical information that reflected [plaintiff's] declining conditionafter his [AU] 3 hearing," which plaintiffcharacterizes as inappropriate de novo fact-finding. (PI. Obj. 6.) Plaintiffargues that consideration of this newly submitted evidence should be the exclusive province of the ALl. (Id.) Contrary to plaintiffs allegations, the magistrate judge did not overstep the bounds ofproper administrative review by considering the additional material submitted to the Appeals Council. As the Fourth Circuit has made clear, where a claimant submits additional evidence to the Appeals Council which is discounted, the court must review that additional evidence to engage in the "substantial evidence" determination. See Wilkins v. Sec 'y, Heath & Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). In this case, the magistrate judge reviewed the additional evidence submitted to the Appeals Council and determined thatthe evidence would not have changed the outcome ofthe AU's decision. 1 (M&R 10-13.) Reviewing the additional evidence as well as the evidence before the ALl, the magistrate judge concluded that the ALl's disability determination was supported by substantial evidence of medical improvement-specifically, improvement in symptoms, signs and laboratory findings associated with the impairment. (M&R 13-21). Because substantial evidence supports the ALl's determination, the final decision of the Commissioner must be upheld. 2. Resumption of Disability During Pendency of Review Process Alternatively, plaintiffcontends that due process dictates that this court remand for the period of time after the record was closed on May 19,2005. Plaintiff s argument is premised on the fact that the 1 The magistrate judge's review determined that the additional evidence did not meet the standard for consideration by the Appeals Council as set forth in the Social Security Administration's administrative regulations. See 20 C.F.R. §§ 404.970(b), 416.1470(b). A remand to the Appeals Council to consider the evidence is therefore unwarranted. See, e.g., Easton v. Astrue, No. 2:07-CY-00030, 2008 WL 41 08084, at *3 (E.D.N.C. Aug. 29, 2008). To the extent that plaintiffs objection to the magistrate judge's consideration of the Appeals Council evidence extends to this aspect of the M&R, the objection is without merit. 4 appeals process has taken such a considerable amount oftime that he has been prejudiced in obtaining reliefthrough a new filing for benefits or through a resumption ofdisability proceeding. SPeCifically, plaintiff alleges that the passing ofthirty-eight (38) months from the hearing to the Appeals Council decision is prejudicial. Though plaintiffcites no relevant authority for his proposition, the closest case on point appears to be Schomerv. Comm'rofSoc. Sec., 80 Fed. Appx. 242 (3d Cir. 2003) (unpublished), in which the Third Circuit rejected a similar due process challenge based on an appeals process lasting thirty-six (36) months. Though that court was "distressed by the undue length oftime that the Commissioner took to dispose of [the] appeal," it recognized that the overwhelming number ofappeals pending at any given time makes it difficult to resolve them with reasonable promptness, and that any such improvement to the timeliness of appeals decisions must be driven by "Congressional consideration and notjudicial determination." Id. at 245. Additionally, the court concluded that, in light ofthe court's rejection ofthe underlying merits ofthe plaintiffs claim, she suffered no prejudice by the delay. Id. In another similar case, Bush v. Shalala, 94 F.3d 40 (2d Cir. 1996), the Second Circuit rejected a due process claim based on a ten-year delay between the filing ofthe application for DIB and the ultimate administrative rejection ofthe claimant's case. 2 The court noted that "Congress gave the Secretary much discretion to deal with the millions ofdecisions she must make," id. at 46 (citing Richardson v. Perales, 402 U.S. 389,399-400 (1971)), and that while "[r]equirements ofdue process apply [to the agency process], ... what is adequate to meet those requirements is understandably different in such hearings than injudicial 2 The ten-year delay in Bush was caused by multiple administrative hearings and remands from the district court rather than the one-time delay of three years between ALl hearing and Appeals Council review at issue in the instant case. The court is not prepared to hold that a delay of similar length would comport with due process here. 5 trials." Id. That the administrative appeals process in this case took more than three years is lamentable. Unfortunately, the delay encountered in this case is not uncommon. Then Commissioner Jo Anne B. Barnhart testified in 2003 that "the length oftime required to move through the entire appeals process was 1153 days - 525 days due to backlogged cases and 628 days to move through the process." Hearing on the Social Security Administration's Management ofthe Office ofHearings and Am>eals Before the Subcomm. on Soc. Sec. ofthe H. Comm. on Ways and Means, 108th Congo 16 (2003) (statement ofJo Anne B. Barnhart, Commissioner). Other testimony at the hearing indicated that the backlog ofcases waiting to be processed at any given time was more than 580,000. Id. at 73 (statement of Witold Skwierczynski, Social Security General Committee, American Federation ofGovernment Employees). The court is constrained in this circumstance to agree with the reasoned opinion ofthe Third Circuit that the passage ofthree years between the ALJ hearing and the Appeals Council decision does not rise to a level constituting denial of due process. CONCLUSION For the foregoing reasons, the court accepts in whole the magistrate judge's memorandum and recommendation, rejects plaintiff sobjection, and upholds the Commissioner's decision. Accordingly, plaintiff's motion forjudgmenton the pleadings (DE #19) is DENIED, and defendant's motion forjudgment on the pleadings (DE #21) is GRANTED. The clerk is directed to close the case. SO ORDERED, this thC:;/~day of September, 2009. ___._UISE W. FLANAGAN Chief United States District Judge 6
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