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
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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
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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
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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.
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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.
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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.
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