Butts v. Barnhart, Docket No. 03-6115.

• Decision Date: 27 July 2005
• Docket Number: Docket No. 03-6115.
• Citation: 416 F.3d 101
• Parties: William E. BUTTS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 101

416 F.3d 101

William E. BUTTS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

Docket No. 03-6115.

United States Court of Appeals, Second Circuit.

Argued: January 7, 2004.

Decided: November 3, 2004.

Petition for Rehearing Filed: December 17, 2004.

Petition for Rehearing Decided: July 27, 2005.

Eugene D. Faughnan, Hinman, Howard & Kattell, LLP, Binghamton, New York, for Plaintiff-Appellant.

Sixtina Fernandez, Assistant Regional Counsel, Social Security Administration (Lisa de Soto, General Counsel, Barbara L. Spivak, Chief Counsel—Region II, Richard A. Hill, Deputy General Counsel, on the petition), New York, New York, for Defendant-Appellee.

Before: WINTER, JACOBS, and STRAUB, Circuit Judges.

Judge JACOBS dissents in a separate opinion.

WINTER, Circuit Judge.

Appellee Jo Anne B. Barnhart, Commissioner of Social Security (the "Commissioner") petitions for a rehearing by the merits panel to reconsider its decision in Butts v. Barnhart, 388 F.3d 377 (2d Cir.2004). Familiarity with this decision is assumed.

The Commissioner argues that the panel's imposition of time limits for a decision on the remand of Butts' disability claim for further proceedings was error for three reasons: (i) ordering a calculation of benefits in the event that the 60-day time limits are not met would violate prohibitions — both judge-made and constitutional — on ordering the payment of benefits where a claimant has not been found disabled, see Bush v. Shalala, 94 F.3d 40 (2d Cir.1996); U.S. Const. Art. I, Sec. 9, cl. 7 (Appropriations Clause); Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (discussing United States' sovereign immunity from suit absent consent); (ii) the 60-day time limits were inappropriate because the panel did not expressly justify the limits by finding the delay in Butts' case "unreasonable" under Heckler v. Day, 467 U.S. 104, 104 S.Ct. 2249, 81 L.Ed.2d 88 (1984); and (iii) 60 days is not sufficient time for the Social Security Administration ("SSA") to render a decision while complying with its own rules and regulations. We find all but the last of these arguments lacking in merit. In response to that argument, we extend the time limits to 120 days.

a) Ordering a Benefits Calculation After Exhaustion of Time Limits

Bush v. Shalala, the Appropriations Clause, and the doctrine of sovereign immunity all permit the ordering of a benefits calculation in the present circumstances if the time limits are not met.

Bush is clearly distinguishable from the present case. In Bush, the disability claim had been pending in various courts for ten years, but the claimant had never proceeded beyond the fourth step of the five-step inquiry followed by administrative law judges ("ALJ"s) — i.e., she had not shown "that her impairment interfered with her capacity to perform her relevant past work." 94 F.3d at 45. The claimant had thus not carried her burden of showing an inability to perform past relevant work at step four. Simply put, she had never shown a disability. Nevertheless, the district court, "outrage[d]" at the delay, remanded for calculation of benefits. Id. at 46. We reversed, holding that "absent a finding that the claimant was actually disabled, delay alone is an insufficient basis on which to remand for benefits." Id.

Butts' case is quite different. Here, we are reviewing an ALJ's decision at step five, rather than step four, of the five-step inquiry. At step five, the disability has been shown, and "the burden... shifts to the [Commissioner] to prove ... that the claimant is capable of working." Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996); Curry v. Apfel, 209 F.3d 117, 123 (2d Cir.2000). Further, we are reviewing a decision in which the existence of appropriate work for the particular claimant in the national economy cannot be determined solely from the "grids," but must, if the claimant is to be denied benefits, be shown by the testimony of a vocational expert. 388 F.3d at 383-84. The burden of producing such testimony rests on the Commissioner. Id. To be sure, our original opinion in this case noted that the evidence was "sufficient to support a finding that Butts could perform sedentary and perhaps some light work," Butts, 388 F.3d at 386, but all we meant was that the medical evidence would have been sufficient to support a finding that Butts was not disabled, but only if the Commissioner had met her burden of presenting a vocational expert to testify that a person with Butts' attributes and qualifications could find sedentary or some light work. Therefore, the opinion could also have said — and we now do so say — that the evidence at the fifth stage would compel a finding that Butts was disabled absent the Commissioner's meeting her burden of making a contrary showing.

On the present record, therefore, Butts has made his showing of disability, and the Commissioner has failed to meet her burden of rebuttal. We deemed the district court's decision to remand for further proceedings rather than a benefits calculation as not constituting an abuse of discretion only because, at her request, we allowed that the Commissioner, who was not represented before the ALJ and to whom the ALJ "owe[d] a duty" to develop the record, id., a second chance to present evidence. However, on the present record, the ordering of a benefits calculation was hardly out of the question. After all, Butts has proven his case, and the Commissioner has run out of time to meet her step five burden. Moreover, it was well within the power of the Commissioner to fashion procedures that would have ensured that she sought to carry her fifth-stage burden on the first occasion that it fell upon her.

We part company with our dissenting colleague in several respects. In particular, our holding is limited to cases where the claimant is entitled to benefits absent the Commissioner's providing expert vocational testimony about the availability of appropriate jobs. Unlike the dissent's example of a piano tuner with a trivial hearing loss, Butts' ability to perform alternative substantial work in the national economy cannot be determined solely from the "grids," as explained in our first opinion.¹ See 388 F.3d at 383-84. Because, as the Commissioner agrees, she has the burden of showing through the testimony of a vocational expert the existence of appropriate jobs for Butts in the national economy, Brief of Appellee at 12-13, he is entitled to benefits as a matter of law absent such a showing. The problem of awarding benefits without supporting findings that so concerns the dissent is, therefore, illusionary in the present circumstances.

Nor are we imposing, as suggested by the dissent, "a penalty" or "sanction" "for bureaucratic delay," Dissent at 108. The Commissioner has asked us to exercise our discretion in her favor as to determining when the evidentiary record is to be deemed closed in this prolonged proceeding and to give her a second chance to offer testimony that she agrees should have been offered earlier and is required to foreclose a disability finding. We do no more than grant her the requested second chance with notice that the record will be deemed closed according to the temporal limits stated in this opinion. If the record is closed without such testimony, Butts will then be entitled to benefits.

As noted, the remand gave the Commissioner, at her request, a second chance, a generosity that the Commissioner's petition for rehearing has not allowed to go unpunished. Were the option of a time limit not available, we would have deemed the remand to have been an abuse of discretion because of both the Commissioner's ability to have avoided the delay occasioned by the failure to produce rebuttal evidence and the self-evident purpose of Congress that disability benefits be provided somewhat near the time they are needed.

For the same reasons that the remand is consistent with Bush, it does not violate the Appropriations Clause or the doctrine of sovereign immunity. These allow, respectively, payment of money by the federal government only where authorized by statute, Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990), and suits for money only where the government has consented to such suit, Lehman, 453 U.S. at 160, 101 S.Ct. 2698. If the Commissioner fails to meet her burden within the time limits, Butts' showing of disability will be unrebutted, benefits are statutorily authorized, and the government has waived its immunity from suit for those benefits.

Finally, the Commissioner argues in a footnote that Fed.R.Civ.P. 55(e) bars the remand because default judgments against the United States are forbidden except where "the claimant establishes a claim or right to relief by evidence satisfactory to the court." Petition at 8 n. 3. Again, if the Commissioner does not meet the time limits, Butts' showing of disability will be factually unrebutted under the five step process, and Butts will therefore have a "right to relief."

b) "Unreasonable" Delay

Heckler v. Day reversed injunctive relief prescribing deadlines for Department of Health and Human Services disability claim adjudications in favor of a class of disability claimants. 467 U.S. at 119, 104 S.Ct. 2249. Nevertheless, it noted that "nothing in this opinion precludes the proper use of injunctive relief to remedy individual violations of § 405(b)." Id. at 119 n. 33, 104 S.Ct. 2249 (emphasis in original). Section 405(b) provides that after an adverse decision on a disability claim, a claimant is entitled to "reasonable notice and opportunity for a hearing with respect to such decision." 42 U.S.C. § 405(b)(1). We have interpreted footnote 33 of Day to mean that "injunctive relief would still be an appropriate remedy for individual cases involving unreasonable delays." Barnett v. Bowen, 794 F.2d 17, 22 (2d Cir.1986) (subsequent appeal in Day...