Davis v. SSA

2011 DNH 174

• Court: District Court, D. New Hampshire
• Decided: October 20, 2011
• Docket: CV-10-404-PB
• Status: Published

Opinion

Davis v. SSA CV-10-404-PB 10/20/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nicole Davis

v. Case N o . 10-cv-404-PB Opinion N o . 2011 DNH 174 Michael Astrue, Commissioner, Social Security Administration

MEMORANDUM AND ORDER

Nicole Davis first applied for social security disability

insurance benefits and supplemental security income on May 1 6 ,

2008, alleging disability as of October 3 0 , 2007, due to

fibromyalgia, depression, and anxiety. After her claims were

denied at the initial level, she requested a hearing before an

Administrative Law Judge (“ALJ”). The ALJ determined that Davis

was not disabled and denied the application on April 1 4 , 2010.

The ALJ’s decision became the final decision of the Commissioner

on July 1 9 , 2010, when the Decision Review Board (“DRB”)

notified Davis that it was unable to complete its review during

the time allowed. Pursuant to 42 U.S.C. § 405(g), Davis filed a

complaint with this court on September 1 4 , 2010, seeking a

reversal of the Commissioner’s decision denying her claim. While her appeal of the Commissioner’s unfavorable decision

was pending, Davis filed a second application for disability

benefits. The SSA approved that application on November 2 2 ,

2010, finding a disability onset date of April 3 0 , 2010, the

same month as the ALJ’s denial of her first application.

Subsequently, the Commissioner filed a motion seeking remand of

the case before this court for a new hearing. Davis objects to

the Commissioner’s motion, seeking instead reversal of the

Commissioner’s denial of the first application with an order for

payment of benefits. In the alternative, Davis seeks an order

preventing the case from being returned to the same ALJ and

limiting the scope of remand to a reconsideration of the merits

of the first application, effectively asking this court to

preclude the Commissioner from reopening her second application

that received a favorable outcome. For the reasons below, I

grant the Commissioner’s motion.

The first form of relief that Davis seeks, a remand with an

order for payment of benefits, is not appropriate in this case.

The First Circuit has held that ordinarily a remand with

instructions to pay is “an unnecessary abrogation of the

Commissioner’s authority to adjudicate applications for

2 disability benefits.” Seavey v . Barnhart, 276 F.3d 1 , 10 (1st

Cir. 2001). Such extraordinary relief is warranted “only in the

unusual case in which the underlying facts and law are such that

the agency has no discretion to act in any manner other than to

award or to deny benefits.” Id. at 1 1 . Plaintiff must show

that “the proof of disability is overwhelming” or that

“correcting the legal error clarified the record sufficiently

that an award or denial of benefits was the clear outcome.” Id.

Here, Davis has not shown that either situation exists.

She appeals the Commissioner’s unfavorable decision on her first

application on the grounds that the ALJ (1) erred at Step Two of

the sequential analysis in finding that Davis’s fibromyalgia

impairment is not severe; (2) failed to account for functional

limitations stemming from fibromyalgia in the residual

functional capacity (“RFC”) analysis; (3) improperly derived his

RFC finding without the necessary medical support; and (4) made

mental RFC, Step 4 , and Step 5 findings that are not supported

by substantial evidence in the record. Pl.’s Mot. to Reverse,

Doc. N o . 9, at 6-18. Davis has not demonstrated, however, that

the proof of her disability is overwhelming or that the alleged

3 legal errors would warrant the award of benefits. Therefore, I

cannot issue an order to the Commissioner to award her benefits.

Davis’s alternative argument in response to the

Commissioner’s motion to remand is two-fold. First, she seeks

an order directing the Commissioner to assign the case on remand

to a different ALJ. Her sole rationale is that the ALJ who

denied her benefits “mishandled the case to the point that the

Commissioner does not wish to defend his decision.” Pl.’s Opp’n

to Mot., Doc. N o . 1 2 , at 1-2. Absent a showing of bias or

wrongdoing on the part of the ALJ, which Davis does not allege,

the fact that the ALJ allegedly did not reach the right decision

is insufficient to require the Commissioner to assign the case

to a different ALJ. Therefore, I deny Davis this relief.

Second, Davis seeks an order limiting the scope of remand

to a reconsideration of the merits of the first application,

presumably because the reopening of her second application may

jeopardize the favorable outcome in that case. Davis is

effectively asking this court to prevent the Commissioner from

consolidating the two cases upon remand, thereby reopening her

second application. As both parties recognize, Davis’s second

application for benefits is not before m e . I have no

4 jurisdiction to either authorize or preclude the Commissioner

from reopening that application. See Encarnación v . Astrue, 724

F.Supp.2d 243, 245 (D.P.R. 2010) (“The court lacks jurisdiction

over the subsequent award of benefits because no appeal from

that claim has been taken to the district court.”). The

Commissioner “may reopen a final determination or decision on

[his] own initiative” and “may revise that determination or

decision” provided that certain conditions are met. 20 C.F.R. §

404.987(b). Given that Davis received the notice of the initial

determination on her second application on November 2 2 , 2010,

the Commissioner is still within the 12-month period when he may

reopen the determination “for any reason.” 20 C.F.R. §

404.988(a). If the 12-month period passes, the Commissioner

would need to “find good cause, as defined in § 404.989, to

reopen the case.” 20 C.F.R. § 404.988(b). Because Congress has

committed the decision on reopening a case to the discretion of

the Commissioner, subject to compliance with the regulations, I

am without authority to preclude him from doing so by limiting

the scope of remand to prevent the consolidation of the two

determinations regarding Davis’s disability benefits.

5 Pursuant to sentence four of 42 U.S.C. § 405(g), I grant

the Commissioner’s motion to reverse and remand for a new

hearing (Doc. N o . 11) without either authorizing or precluding

the ALJ from reopening Davis’s second application for benefits.

Davis’s motion to reverse (Doc. N o . 9 ) is terminated in light of

the disposition of the case. Accordingly, the clerk shall enter

judgment and close the case. 1

SO ORDERED.

/ s / Paul Barbadoro Paul Barbadoro United States District Judge

October 2 0 , 2011.

cc: Francis M. Jackson, Esq. Karen B . Fitzmaurice, Esq. Gretchen Leah Witt, Esq.

1 Davis asserts in her objection to the Commissioner’s motion that “the Commissioner does suggest that absent this appeal and remand, the agency would not seek to reopen and revise the subsequent, favorable decision in the ordinary course of business.” Pl.’s Opp’n to Mot., Doc. N o . 1 2 , at 2 . I will delay entry of judgment for 7 days to give Davis an opportunity to withdraw her appeal, should she find that doing so is to her advantage. 6