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Woodworth v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

March 31, 2017

DENNIS J. WOODWORTH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKTS. 15, 19)

          Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         On March 3, 2016, plaintiff Dennis J. Woodworth, filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). The parties consented to the jurisdiction of the undersigned magistrate judge to conduct all proceedings. (Dkt. 13, 14). This matter is before the Court on cross-motions for summary judgment. (Dkts. 15, 19). The parties have agreed that this matter should be remanded, but disagree on some of the details associated with the remand. The Court held a hearing via video teleconference on February 21, 2017. (Dkt. 23). A recitation of the factual underpinnings of plaintiff's claim is dispensed with as the same is not necessary to the Court's consideration of the issues before it, which relate solely to the procedural mechanics for remand.

         II. ANALYSIS

         While plaintiff did not raise the issue of bias in his initial brief, he refused to consent to the Commissioner's motion to remand unless the Commissioner agreed to remand this matter to another ALJ on the basis on bias. Based on the response brief, plaintiff is no longer asserting that the Court should address the issue of the ALJ's bias, but rather, asserts that this issue should be remanded to the Appeals Council for consideration. As set forth in plaintiff's response brief (Dkt. 20), plaintiff is agreeable to a remand pursuant to Sentence Four, and the parties agree on the following terms:

1. Offer Plaintiff an opportunity for hearing;
2. Take any further action needed to complete the administrative record;
3. Further evaluate Plaintiff's Residual Functional Capacity in the context of the updated record in accordance with AR 98-4(6);
4. Further evaluate the opinion evidence, providing specific reasons for the weight given to that evidence;
5. Further evaluate the Claimant's subjective allegations of his symptoms; and
6. If warranted, obtain supplemental vocational expert testimony.

(Dkt. 20, Pg ID 415). At the outset of the hearing on this matter, the Court identified three areas in dispute: (1) whether the Court could remand the issue to the Appeals Council to address the alleged bias of the ALJ; (2) whether the Court could decide the issue of res judicata or whether this issue was for the ALJ to decide in the first instance; and (3) whether the Court could direct the Appeals Council to only consider the current application on remand and preclude the Appeals Council from reconsidering a later decision that was favorable to plaintiff. At the hearing in this matter, plaintiff's counsel verbally conceded issues 2 and 3, and thus, they need not be considered any further by the Court.

         As to the first issue, the parties are in disagreement on having this case remanded back to the original ALJ. Plaintiff admits that he did not adequately articulate his argument requesting a remand to a different ALJ in the initial brief and did not raise this issue with the Appeals Council. Therefore, plaintiff requests, instead, that this Court order the Appeals Council to look into remanding plaintiff's case to a different ALJ. Plaintiff outlines the specific issues he would like the Appeals Council to consider as it relates to remanding to a different ALJ. (Dkt. 20, Pg ID 417). In reply, the Commissioner says that plaintiff's bias claim is without merit, as discussed extensively in her motion for summary judgment. According to the Commissioner, the request is fruitless because the Appeals Council will not consider an issue not properly before it.

         In the view of the Court, it does not have the authority to order the Appeals Council to consider the issue of bias. As explained in Noble v. Colvin, 2013 WL 3771496, at *4 (E.D. Ky. 2013), because the plaintiff did not raise allegations of bias with the ALJ or the Appeals Council as instructed by 20 C.F.R. § 416 .1440, the claim is arguably waived. Id. (citing Millmine v. Sec'y of Health & Hum. Servs., 1995 WL 641300, at *2 (6th Cir. Oct. 31, 1995) (citing Muse v. Sullivan, 925 F.2d 785, 790-91 (5th Cir. 1991)) (“Absent good cause, failure to raise the issue of bias before the Secretary constitutes waiver of the right to raise the issue on appeal.”)). In Noble, the court did go on to address the issue of bias because the plaintiff was represented by different counsel ...


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