United States District Court, D. Maine
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
United States Magistrate Judge filed with the Court on August
31, 2018 his Recommended Decision. Report and Recommended
Decision (ECF No. 19) (Recommended Decision).
The Commissioner of the Social Security Administration filed
objections to the Recommended Decision on September 14, 2018.
Def.'s Obj. to the Magistrate Judge's
Report and Recommended Decision (ECF No. 20)
(Def.'s Obj.). Michael H. filed his response to
the Commissioner's objections on September 28, 2018.
Pl.'s Resp. to Def.'s Obj. to the Magistrate
Judge's Report and Recommended Decision
(ECF No. 21) (Pl.'s Resp.). The Court
reviewed and considered the Magistrate Judge's
Recommended Decision, together with the entire record. The
Court has made a de novo determination of all matters
adjudicated by the Magistrate Judge's Recommended
Decision. Although the Court concurs with the recommendations
of the Magistrate Judge, the Court's analysis of the
record differs somewhat from that of the Recommended
Court offers the following additional discussion.
POSITIONS OF THE PARTIES
The Commissioner's Objection
Commissioner objects to the Recommended Decision on three
grounds. First, she argues that the Magistrate Judge erred in
elevating Dr. Leslie Susan Dixon's “one-page
‘employability form' to the status of a treating
source medical opinion” because “[p]laintiff
failed to provide any evidence establishing that the doctor
who prepared the form was a treating source.”
Def.'s Obj. at 1. Second, the Commissioner
argues that the Recommended Decision “relies on
Mills [v. Apfel, 244 F.3d 1 (1st Cir.
2001)] to impose an articulation requirement on the Appeals
Council that neither Mills nor the Social Security
Act or regulations require.” Id. at 1 (citing
Recommended Decision at 9-10). Finally, the
Commissioner maintains that remand is not required on the
basis that the Appeals Council did not consider the
employability form because it is merely cumulative evidence.
Id. at 1-2.
Michael H.'s Response
responded to the Commissioner's objections and raised
additional reasons why the Appeals Council erred in its
decision. Pl.'s Resp. at 1-2. First, Mr. H.
notes that “this is a case where the Appeals Council,
rather than acting in its usual capacity as a reviewing
entity, chose to act as the fact finder and issue a de
novo decision.” Id. at 3 (italics in
original). He argues that this is relevant to several of the
Commissioner's objections, including to the Appeals
Council's handling of the Dixon report. Id.
According to Mr. H., because the Appeals Council acted as a
factfinder, it “specifically solicited new evidence
prior to issuing its decision.” Id. He also
argues that “although the decision was issued by the
Appeals Council, it is still subject to exactly the same
scrutiny that would apply to any decision by an ALJ.”
response to the Commissioner's argument that the
Magistrate Judge improperly construed Mills, Mr. H.
avers that “[t]he Defendant simply refuses to
acknowledge that in this case the Council was not acting in
its appellate capacity.” Id. at 6. He further
argues that the Recommended Decision “is not applying
Mills to impose a greater requirement on the Council
in the appellate role as discussed in Mills . . . .
Contrary to the Defendant's argument, the Recommended
Decision properly reviews the decision under the same
standards as any other final decision of the Commissioner . .
disagrees that the Appeals Council was not required to
consider the Dixon medical opinion because it was cumulative,
contending that the limitations in Dr. Dixon's evaluation
“are quite different from the limitations adopted by
the ALJ in the RFC and, in turn, specifically adopted in the
Council's superseding decision.” Id. at 7
(citing Recommended Decision at 6-7).
Mr. H. raises additional issues he argues require reversal
and remand of the Appeals Council's decision.
Id. at 9. He contends that the evidence does not
reflect the conclusion that Mr. H. did not have a severe
impairment, and that the Commissioner “failed to give
good reasons for rejecting Ms. Beneck's opinions.”
Id. at 9-10.
The Appeals Council Request
March 23, 2016, the Administrative Law Judge rendered an
unfavorable decision against Mr. H.'s application for a
period of disability and disability insurance benefits.
Administrative Record, Attach. 2, Administrative
Process Docs. At 30-42 (ECF No. 9). On May 13, 2016, Mr.
H. appealed the unfavorable decision to the Appeals Council.
Id. at 25. On May 26, 2016, the Appeals Council
wrote Attorney Francis Jackson, Mr. H.'s lawyer, and
You may send more evidence or a statement about the facts and
the law in this case.
Any more evidence must be new and material to the issues
considered in the hearing decision dated March 28, 2016.
Id. at 22. On May 25, 2017, the Appeals Council sent
Mr. H. a Notice of Appeals Council Action, informing him that
it “plan[ned] to make a decision again finding you are
not disabled.” Id. at 12. The May 25, 2017
letter contained the following notice:
You may send us a statement about the facts and the law in
your case or additional evidence within 30 days of the date
of this letter. We will consider additional evidence if ...