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Delacotera v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

March 14, 2017

JACK FROST DELACOTERA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM & ORDER

          ALETA A. TRAUGER United States District Judge

         Plaintiff Jack Delacotera seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration (“SSA”) terminating the plaintiff's disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434.

         On January 17, 2017, the magistrate judge issued a Report and Recommendation (“R&R”) (Doc. No. 21), to which the defendant has filed timely Objections (Doc. No. 22). The R&R recommends that the plaintiff's Motion for Judgment on the Pleadings and Administrative Record (Doc. No. 16) be granted and that the case be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for consideration under the appropriate burden of proof. For the reasons discussed herein, the court will overrule the defendant's Objections, accept the R&R, and grant the plaintiff's motion insofar as it seeks reversal and remand.

         I. BACKGROUND

         The SSA initially awarded the plaintiff DIB in March 18, 1999, finding that he had been disabled as a result of psychotic disorders since October 1, 1998. The SSA determined that the plaintiff continued to be disabled as of June 14, 2010, after a continuing disability review (“CDR”). In the context of a subsequent CDR, the SSA found that the plaintiff was no longer disabled as of May 1, 2014. That decision was affirmed on reconsideration. The plaintiff requested a de novo hearing and a decision by an Administrative Law Judge (“ALJ”). The ALJ issued a decision unfavorable to the plaintiff, and the Appeals Council denied review, rendering the ALJ's decision the “final decision” of the SSA.

         The plaintiff thereafter filed this civil action. The SSA answered and, on September 30, 2016, the plaintiff filed his Motion for Judgment on the Pleadings and Administrative Record. (Doc. No. 16.) In support of his motion, the plaintiff argues that the ALJ failed to apply the proper legal standard and that her decision was not supported by substantial evidence. In particular, the plaintiff points out that, in reciting the eight steps for assessing a claimant's disability in the context of a CDR, the ALJ failed to recognize that the burden of establishing the plaintiff's medical improvement rests with the SSA. The plaintiff also argues that (1) the medical evidence demonstrated that the plaintiff's condition remained essentially unchanged and, therefore, the ALJ's finding of medical improvement lacked substantial supporting evidence; (2) the ALJ failed to provide good reason for according no weight to the treating psychiatrist's opinion; and (3) the ALJ failed to recite the appropriate legal standard for making an adverse credibility determination.

         In response, the SSA argued only that the ALJ's decision was supported by substantial evidence in the record. (Doc. No. 17.) The plaintiff filed a Reply, pointing out that “any defense of the ALJ's failure to apply the correct legal principles and meet her burden for terminating Plaintiff's disability benefits after 16 years” was “[c]onspicuously absent” from the SSA's Response. (Doc. No. 18, at 4.)

         The magistrate judge issued his R&R on January 17, 2017. In setting out the applicable legal standard, the magistrate judge notes that, in a CDR, unlike in an initial disability determination, the SSA bears the burden of proving both that “the severity of a claimant's impairment has medically improved, and that the claimant is now able to perform substantial gainful activity.” (Doc. No. 21, at 5 (quoting Little v. Comm'r of Soc. Sec., No. 1:12CV949, 2014 WL 656737, at *4 (S.D. Ohio Feb. 19, 2014)). The magistrate judge concludes that the “plain language of the ALJ's decision indicates that the wrong legal standard was applied”-that is, that she had allocated the burden of proof to the plaintiff to establish that he was still disabled-and that misapplication of the burden of proof, as a fundamental legal error, was not harmless and required reversal and remand. (Id. at 7.) The R&R observes that the defendant, “[m]ost unhelpfully, ” failed to respond to the plaintiff's argument that the ALJ applied the wrong burden of proof. (Id.) While he notes that the defendant's failure constitutes a waiver of her ability to further challenge this contention (id. at 8 (citations omitted)), the magistrate judge's recommendation is not premised on waiver.

         II. THE DEFENDANT'S OBJECTIONS

         The defendant filed timely Objections, expressing regret for the “lack of clarity” in the SSA's Response brief but without actually acknowledging her failure to address the plaintiff's contention that the ALJ applied the wrong legal standard. The defendant argues that the ALJ's decision “plainly stated” that the ALJ “‘must' make the determination at each of the eight steps in the CDR process” and, “[a]t step three, the ALJ must determine whether medical improvement has occurred.” (Doc. No. 22, at 2 (citing Tr. 50).) The defendant argues that this language implies that the ALJ understood that the agency bore the burden at step three to establish medical improvement. (Id.)

         In his response to the Objections, the plaintiff argues that the SSA failed to address this issue in the Response in opposition to the Motion for Judgment and therefore waived her ability to further challenge the plaintiff's contention. The defendant also argues that the defendant's proposed interpretation of the ALJ's language strains credulity.

         III. STANDARD OF REVIEW

         When a magistrate judge issues a report and recommendation regarding a dispositive pretrial matter, the district court must review de novo any portion of the report and recommendation to which a specific objection is made. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). In conducting its review, the district 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).

         In Social Security cases, the Commissioner determines whether a claimant is disabled within the meaning of the Social Security Act and, thereby, entitled to benefits. 42 U.S.C. § 405(h). The court's review of an ALJ's decision is limited to a determination of whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence. Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)). “[T]he Commissioner's failure to apply correct legal standards, or to show us that she has done so, [is] . . . grounds for reversal.” Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004) (internal quotation marks and citation omitted); see also Blakley, 581 F.3d at 409 (stating ...


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