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Michael H. v. Social Security Administration Commissioner

United States District Court, D. Maine

February 15, 2019

MICHAEL H., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         The 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.).[1] 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 Decision.

         The Court offers the following additional discussion.

         I. POSITIONS OF THE PARTIES

         A. The Commissioner's Objection

         The 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.

         B. Michael H.'s Response

         Mr. H. 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.” Id.

         In 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 . . ..” Id.

         Mr. H. 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).

         Finally, 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.

         II. THE RECORD

         A. The Appeals Council Request

         On 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 notified him:

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 ...

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