The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AMBER R., .
Plaintiff,
Vv: : Case No. 3:21-cv-204
SOCIAL SECURITY
ADMINISTRATION, :
Defendant.
DECISION AND ENTRY REJECTING UNITED STATES MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATIONS (DOC. #14);
SUSTAINING DEFENDANT’S OBJECTIONS THERETO (DOC. #16);
REMANDING MATTER TO MAGISTRATE JUDGE FOR INITIAL
CONSIDERATION OF OTHER ISSUE RAISED IN PLAINTIFF’S
STATEMENT OF ERRORS
On July 14, 2022, United States Magistrate Judge Caroline H. Gentry issued
a Report and Recommendations, Doc. #14, recommending that the Court reverse
the Commissioner’s non-disability finding, make no finding as to whether Plaintiff
was under a “disability” within the meaning of the Social Security Act, and
remand the case to the Social Security Administration under Sentence Four of 42
U.S.C. § 405(g) for further consideration.
This matter is currently before the Court on Defendant's Objections to that
Report and Recommendations, Doc. #16, and on Plaintiff’s Response to
Defendant's Objections, Doc. #17.
The Court must make a de novo review of those portions of that judicial
filing to which proper Objections have been made. The Court may accept, reject
or modify the recommended disposition, receive further evidence or return the
matter to the Magistrate Judge with instructions. Fed. R. Civ. P. 72(b)(3).
Plaintiff suffers from a variety of physical and mental impairments,
including degenerative disc disease, hip pain, knee pain, depression and post-
traumatic stress disorder. Plaintiff's claims for Disability Insurance Benefits and
Supplemental Security Income were denied initially and on reconsideration.
Following an evidentiary hearing, the Administrative Law Judge (“ALJ”)
concluded that Plaintiff was capable of light work and therefore not disabled.
Plaintiff appealed. The Appeals Council vacated the ALJ's decision because
it appeared that he had not considered all of the evidence submitted. The Appeals
Council remanded the case with the following instruction:
If warranted, [the ALJ shall] obtain additional evidence concerning all
of the claimant’s physical and mental impairments . .. The additional
evidence will include a consultative examination and a medical
source statement regarding the claimant's ability to perform work-
related activities despite her physical impairments.
Doc. #4-3, PagelD#344-45.
In his decision again denying benefits, the ALJ acknowledged these
instructions but stated that he was unable to obtain a consultative
examination due to restrictions related to the COVID-19 pandemic. Doc. #4-
2, PagelD#156. Plaintiff appealed but, this time, the Appeals Council denied
Plaintiff's request for review, finding no basis for disturbing the ALJ’s
decision. Doc. #4-2, PagelD##16-17.
Plaintiff then sought judicial review pursuant to 42 U.S.C.
§ 405(g). In her Statement of Errors, Plaintiff argued that: (1) the ALJ failed
to comply with the instructions of the Appeals Council to arrange for a
consultative examination; and (2) failed to properly evaluate the mental
health opinion evidence of record.’ Magistrate Judge Gentry’s Report and
Recommendation is limited to a discussion of the first issue.
Magistrate Judge Gentry agreed with Plaintiff that the ALJ’s failure to
comply with the Appeals Council's directive to obtain a consultative
examination constituted reversible error.2 She noted that federal
regulations provide that the ALJ “shall take any action that is ordered by
the Appeals Council.” 20 C.F.R. § 404.977(b). She found that reversal was
warranted because the ALJ had failed to apply the “correct legal standard.”
See Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020) (holding
1 Athird Issue, concerning separation of powers, was later withdrawn. See Doc.
#10.
2 The Magistrate Judge acknowledged that the ALJ was instructed to
obtain additional evidence only “if warranted.” She reasonably concluded,
however, that if the ALJ did not believe that additional evidence was
warranted, he would not have inquired about the feasibility of a
consultative examination.
that reversal may be warranted if the ALJ fails to apply the correct legal
standards).
Magistrate Judge Gentry rejected Defendant's argument that the
Court lacks jurisdiction to determine whether the ALJ complied with the
instructions of the Appeals Council on remand. She noted that federal
courts were divided on this issue and that the Sixth Circuit had not yet had
the opportunity to address it. Rather than discuss the cases cited by
Defendant, the Magistrate Judge relied on Wilson v. Comm’r of Soe. Sec.,
378 F.3d 541 (6th Cir. 2004), a case dealing with the ALJ’s failure to apply
the treating physician rule. She noted that it is “an elemental principle of
administrative law that agencies are bound to follow their own
regulations.” /d, at 545. She concluded that the ALJ’s failure to comply
with the Appeals Council's remand order violated the “applicable legal
standards” set forth in 20 C.F.R. 8 404.977(b) and warrants reversal.
Defendant objects to the Magistrate Judge’s analysis, arguing that it
is inconsistent with the overwhelming majority of cases within the Sixth
Circuit. The Court agrees and SUSTAINS Defendant's Objection on this
basis. It is true that some district courts have held that an ALJ's failure to
follow the directives of the Appeals Council constitutes a procedural due
process error that serves as an independent ground for reversal. See, e.g.,
Godbey v. Colvin, No. 1:13cv-00167, 2014 WL 4437647, at **6-7 (W.D. Ky.
Sept. 9, 2014); Sa/vati v. Astrue, No. 3:08-cv-494, 2010 WL 546490, at **4-5
(E.D. Tenn. Feb. 10, 2010).
However, as the court noted in Shope v. Comm’r of Soc. Sec., No.
2:14-cv-2055, 2015 WL 3823165 (S.D. Ohio June 19, 2015), “[t]he
overwhelming majority of courts in this circuit... have determined that
federal courts lack jurisdiction to consider whether an administrative law
judge complied with the Appeals Council’s instructions on remand.” /d. at
*8 (collecting cases). See a/so Hedges v. Comm’r of Soc. Sec., No. 2:16-cv-
592, 2017 WL 3140876, at *11 (S.D. Ohio July 25, 2017) (holding that the
Court “lacks jurisdiction to consider whether the ALJ complied with the
Appeals Council’s directive.”).
These courts reason that, under 42 U.S.C. § 405(g), the district court
is granted jurisdiction to review only the “final decision of the
Commissioner of Social Security.” This is “confined to a review of the
[ALJ’s] decision and the evidence presented to the [ALJ.]” Shope, 2015 WL
3823165, at *9. The ALJ’s compliance with a remand order is considered to
be an “internal agency matter which arises prior to the issuance of the
agency’s final decision.” Brown v. Comm’r of Soc. Sec., No. 1:08-cv-183,
2009 WL 465708, at *6 (W.D. Mich. Feb. 24, 2009). “Plainly stated, this
Court's scope of review is limited to an analysis of the ALJ’s decision and
not a review of the ALJ’s compliance with the Appeals Council's Order of
Remand.” Prichard v. Astrue, No. 2:08-0055, 2011 WL 794997, at *15 (M.D.
Tenn. Feb. 28, 2011) (internal quotation omitted).
Moreover, in Plaintiff's case, following the remand, the Appeals
Council had the opportunity to review the ALJ’s compliance with its
instructions and saw no need to remand the case a second time. It found
no legal basis to question the ALJ’s decision.
In similar situations, courts have held that it may be inferred that the
Appeals Council found that the ALJ had substantially complied with its
instructions, and that the Court lacked jurisdiction to review the ALJ's
compliance with the remand order. See Brown, 2009 WL 465708 at *6 (“By
failing to remand the matter a second time, it appears that the Appeals
Council considered the ALJ's .. . review to be in compliance with the
Council's previous order of remand.”); Shope, 2015 WL 3823165, at *9
(holding that where the Appeals Council has the opportunity to review an
ALJ’s compliance with its directives and does not remand the matter a
second time, the Court has no authority to review the Appeals Council’s
decision); Hedges, 2017 WL 3140876, at *11 (same); Lianeza v. Comm’r of
Soc. Sec., No. 2:15-cv-2437, 2016 WL 4054918, at *13 (S.D. Ohio July 29,
2016) (same).
This Court agrees with the reasoning set forth in the cases cited
above. Accordingly, to the extent that Magistrate Judge Gentry found that
the ALJ’s failure to comply with the instructions of the Appeals Council on
remand constituted reversible error, the Court REJECTS that portion of the
Report and Recommendations.
In her Report and Recommendations, the Magistrate Judge also
rejected Defendant's argument that “the ALJ’s failure to obtain a
consultative examination constitutes harmless error.” Doc. #14,
PagelD#2871 (citing Doc. #12, PagelD#2846). She noted that § 404.977(b)
affords a procedural protection to a claimant. Pearl v. Comm’r of Soc. Sec.,
394 F. Supp. 3d 762, 767 (E.D. Mich. 2019) (equating the remand rule to the
treating physician rule). Quoting Wi/son v. Comm’r of Soc. Sec., 378 F.3d
541, 546 (6th Cir. 2004), she then held that the Court “cannot excuse the
denial of a mandatory procedural protection simply because . . . a different
outcome on remand is unlikely.” /d. at 546. “A procedural error is not
made harmless simply because [the aggrieved party] appears to have had
little chance of success on the merits anyway.” /d. (quoting Mazaleski v.
Treusdell, 562 F.2d 701, 719 n.41 (U.S. App. D.C. 1977)).
As Defendant points out in her Objections, however, this discussion
is not responsive to the argument that was actually made. Defendant did
not argue that the failure to obtain a consultative examination constituted
harmless error or that Plaintiff was unlikely to obtain a different outcome on
remand. Rather, Defendant argued that Plaintiff had not satisfied her
burden of showing that the alleged error, /e., failure to obtain a
consultative examination, caused her any harm. The portion of the remand
order that directed the ALJ to obtain a consultative examination pertained
only to Plaintiff's physica/impairments. Plaintiff, however, is challenging
only the ALJ’s evaluation of her menta/ health opinion evidence. Defendant
maintains that because Plaintiff failed to show that how she was harmed by
the ALJ’s failure to obtain a consultative examination, remand was not
warranted. To the extent that Defendant argues that the Magistrate Judge
failed to consider the argument actually raised, the Court SUSTAINS this
Objection also.
For the reasons set forth above, the Court REJECTS the Report and
Recommendations, Doc. #14. Given that the Magistrate Judge did not
reach the other issue raised by Plaintiff in her Statement of Errors, /e.,
whether the ALJ committed reversible error by failing to properly evaluate
the mental health opinion evidence, the Court REMANDS the matter to
Magistrate Judge Gentry for initial consideration of that issue.
Date: August 31, 2022 arte Mi
WALTER H. RICE
UNITED STATES DISTRICT JUDGE