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Dennis Sell v. Michael J. Astrue

December 22, 2010

DENNIS SELL
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY



The opinion of the court was delivered by: Savage, J.

MEMORANDUM OPINION

In this review of the denial of disability insurance benefits, we are called upon to determine whether the administrative law judge ("ALJ") exceeded the scope of the district court's remand order and whether her decision is supported by substantial evidence. The Commissioner has filed objections to the report and recommendation of Magistrate Judge Timothy Rice who recommended that the denial of benefits be reversed.

Contrary to the Commissioner's objection, Judge Rice did not reweigh the evidence. Instead, he reviewed the complete record for the purpose of determining whether there was substantial evidence to support the ALJ's findings. Although we disagree with Judge Rice on the remand issue, we adopt his comprehensive recitation of the procedural and medical histories, and agree with his well-reasoned analysis of the treating physician rule in the context of this case. Thus, we shall adopt his recommendation, reverse the ALJ's decision, and remand this action for calculation of benefits.

Dennis Sell suffered extensive vascular and nerve damage to his right leg as the result of a combat wound inflicted in the Vietnam War. He later developed post-traumatic stress disorder arising from his combat experiences. His right lower leg was ultimately amputated in 1995 after repeated unsuccessful vascular reconstruction procedures over the years. In the interim, especially during the relevant period, the Veterans Administration ("VA") increased his disability rating twice. In 1969, he was rated at 40% disabled; in 1982, the rating was increased to 70%; and the following year, it was increased to 100%.

Sell's quest for benefits began in August, 1995 when he first applied for benefits for the period beginning on April 15, 1980 and ending on December 31, 1985. Since Sell first applied for benefits, there have been four hearings before administrative law judges, a remand to an administrative law judge by the Appeals Council, two remands by different district judges, and three reports and recommendations issued by magistrate judges. The administrative law judges have consistently ruled against Sell, and two district judges have found those decisions flawed. Once again, the district court is asked to review an administrative law judge's decision denying benefits.

After finding that the ALJ had erred in giving only probative weight to the VA's disability determination, District Judge Thomas M. Golden remanded the case "for the sole purpose of giving the VA's finding that Plaintiff was 100% disabled during the relevant period 'substantial' rather than merely 'probative' weight." (emphasis added). He also ordered that in the event the Commissioner rejected the VA's determination, she "must give a detailed explanation for rejecting that determination." Sell v. Barnhart, No. 05-6589, 2007 WL 966513, at *5 (E.D. Pa. March 28, 2007).

Judge Golden's remand order was specifically limited. It called for a reevaluation or reconsideration of the record evidence while giving substantial weight to the VA disability determination. The order did not invite a de novo hearing or the reception of any new medical or vocational evidence.

Because Judge Golden left the door open for the Commissioner to reject the VA's determination did not mean that the ALJ was free to hold a new hearing. Had he contemplated a de novo hearing, he would have ordered one. His memorandum opinion and order gave explicit instructions regarding the scope of the remand.

An agency must strictly adhere to a remand order in its administrative proceedings. Deviation from the remand mandate constitutes legal error, requiring reversal on judicial review. Sullivan v. Hudson, 490 U.S. 877, 886 (1989); Thompson v. Barnhart, No. 05-395, 2006 WL 709795, at *11 (E.D. Pa. March 1, 2006). The Sixth Circuit articulated this principle in Mefford v. Gardner, 383 F.2d 748, 758 (6th Cir. 1967). It said:

[O]n the remand of a case after appeal, it is the duty of the lower court, or the agency from which appeal is taken, to comply with the mandate of the court and to obey the directions therein without variation and without departing from such directions; and that after a cause has been determined on appeal, the court or agency from which the appeal is taken is without power to open or modify the judgment or order of the appellate court, or to alter or relieve from the precise fulfillment of a specified condition on which the effect of the appellate judgment is made to depend. Moreover, if the cause is remanded with specific directions, further proceedings in the trial court or agency from which appeal is taken must be in substantial compliance with such directions; and if the cause is remanded for a specified purpose, any proceedings inconsistent therewith is error.

Id.

Sell contends that the ALJ erred in conducting a de novo hearing on remand. At the hearing, his attorney objected to the ALJ's calling and taking testimony from a new medical expert and a vocational expert. This testimony, she argued, was outside the scope of the remand order. We agree.

The ALJ disregarded or misinterpreted the scope of Judge Golden's remand order.

At the outset of the hearing on remand, she stated that "the purpose of the hearing today will then be to take testimony from Dr. Rothkopf and Dr. Baine." When Sell's counsel pointed out that Judge Golden had limited the remand, the ALJ defined her role as "giving the VA opinion as to disability substantial weight and then once that is done to decide whether or not that Decision can be overcome by any other evidence in the record, and to give a detailed explanation if that is the case." ...


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