Brown v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

JAMES BROWN, )

)

Plaintiff, )

)

v. ) Case No. CIV-18-1183-SLP

)

ANDREW M. SAUL, )

Commissioner of Social Security, )

)

Defendant.1 )

O R D E R

Before the Court is the Objection [Doc. No. 21] filed by the Commissioner to U.S.

Magistrate Judge Suzanne Mitchell’s Report and Recommendation (“R&R”) [Doc. No.

20]. In her R&R, Judge Mitchell recommended the entry of judgment reversing and

remanding the Commissioner’s final decision because “the sole reason the [administrative

law judge] gave for denying Plaintiff’s request for an additional consultative examination

is unsupported by the evidence of record.” R&R 6, Doc. No 20. The Commissioner argues

that Judge Mitchell was required not only to determine if error by the ALJ existed, but also

to determine whether such error was harmless. And the Commissioner argues that any

such error was, in fact, harmless. The Court reviews de novo that portion of the R&R to

which the Commissioner made specific objection. See 28 U.S.C. § 636(b)(1); Fed. R. Civ.

P. 72(b)(3).

1 Mr. Saul has been automatically substituted for the then-acting commissioner named in

Plaintiff’s Complaint [Doc. No. 1] pursuant to Federal Rule of Civil Procedure 25(d).

Harmless-error review may be appropriate in “exceptional circumstance[s], i.e.,

where, based on material the ALJ did at least consider (just not properly), [the reviewing

court] could confidently say that no reasonable administrative factfinder, following the

correct analysis, could have resolved the factual matter in any other way.” Allen v.

Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004); see Fischer-Ross v. Barnhart, 431 F.3d

729, 733 (10th Cir. 2005) (indicating that harmless-error review should be applied

“cautiously in the administrative review setting”). Assuming without deciding that

harmless-error review of the type described for social security disability benefits appeal

cases could apply to the issue of whether to order an additional consultative examination,

the instant scenario does not meet this high bar for harmless-error review in the

administrative review setting. A reasonable administrative factfinder, considering the

conflicting evidence in the record from Dr. Khan and Dr. Metcalf, could have resolved the

issue of whether an additional consultative examination was proper in favor of Plaintiff.

Additionally, this case is not one where a remand necessarily would serve no other purpose

than to needlessly prolong the proceedings. The harmless-error standard of review

therefore is not satisfied, and Judge Mitchell correctly determined that the reason given by

the ALJ for denying Plaintiff’s request for an additional consultative examination was

unsupported by the evidence of record.

IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.

20] is ADOPTED in its entirety and the Commissioner’s Objection thereto [Doc. No. 21]

is OVERRULED. The Commissioner’s decision is REVERSED, and this matter is

REMANDED for further administrative proceedings consistent with the R&R. A separate

judgment will be entered contemporaneous herewith.

IT IS SO ORDERED this 8" day of November, 2019.

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE