Armstrong v. N.M. Disability Determination Servs.

• Decision Date: 30 September 2017
• Docket Number: No. CIV 15–1148 JB/JHR,CIV 15–1148 JB/JHR
• Parties: Michael ARMSTRONG and Beryl Ann Griego, Plaintiffs, v. NEW MEXICO DISABILITY DETERMINATION SERVICES, Daniel Roper, Director, New Mexico Disability Determination Services, in his official capacity, and Miriam Fernandez–Rice, Administrative Law Judge, United States Social Security Office of Disability Adjudication and Review, in her individual capacity, Defendants.
• Court: U.S. District Court — District of New Mexico

278 F.Supp.3d 1193

Michael ARMSTRONG and Beryl Ann Griego, Plaintiffs,

v.NEW MEXICO DISABILITY DETERMINATION SERVICES, Daniel Roper, Director, New Mexico Disability Determination Services, in his official capacity, and Miriam Fernandez–Rice, Administrative Law Judge, United States Social Security Office of Disability Adjudication and Review, in her individual capacity, Defendants.

No. CIV 15–1148 JB/JHR

United States District Court, D. New Mexico.

Signed September 30, 2017

Counsel: Maureen A Sanders, Brian L. Moore, Sanders & Westbrook, PC, Albuquerque, New Mexico, Attorneys for the Plaintiffs

James D. Tierney, Acting United States Attorney, Manuel Lucero, Assistant United States Attorney, District of New Mexico, United States Attorney's Office, Albuquerque, New Mexico—and—Gregory E. White, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Dallas, Texas, Attorneys for the Defendants

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGETHIS MATTER comes before the Court on: (i) the Defendant's Motion to Dismiss Complaint, filed March 15, 2016 (Doc. 8)("First Motion"); and (ii) the Defendant's Motion to Dismiss Complaint Against Administrative Law Judge Miriam Fernandez–Rice, filed April 19, 2016 (Doc. 18)("Second Motion").¹ The Court held a hearing on August 14, 2017. The primary issues are: (i) whether the Social Security Administration ("SSA") must provide reasonable notice of the name of the person who will conduct a consultative examination or, alternatively, whether it suffices that the SSA makes that information available upon request; and (ii) whether Administrative Law Judges ("ALJs") are entitled to absolute judicial immunity when they refer attorneys who appear before them to the SSA's Office of Disability Adjudication and Review ("ODAR") for investigation. The Court concludes that the SSA needs to make the name of the person who will conduct a consultative evaluation available only upon request and that ALJs are entitled to absolute judicial immunity when making referrals to ODAR for investigation. Consequently, the Court will grant both the First Motion and the Second Motion.

FACTUAL BACKGROUND ²

The SSA works with states "to provide and maintain an effective system for processing claims of those who apply for and who are receiving" disability benefits. 20 C.F.R. § 404.1603. State agencies generally make initial "determinations of disability with respect to all persons in the State." 20 C.F.R. § 404.1613. In New Mexico, the Defendant New Mexico Disability Determination Services ("NMDDS") makes those determinations. First Amended Complaint for Writ of Mandamus, For Damages For Violation of Civil Rights and for Declaratory Judgment ¶ 4, at 2, filed January 4, 2016 (Doc. 3)("Complaint"). See First Motion at 2. NMDDS must comply with SSA regulations. See 20 C.F.R. § 404.1603(a) ("The State will comply with our regulations and other written guidelines."). To help it make disability determinations, NMDDS may ask someone applying for disability benefits to have a consultative examination, i.e., "one or more physical examinations or tests," and NMDDS must give "reasonable notice of the date, time, and place the examination or test will be given, and the name of the person or facility who will do it." 20 C.F.R. § 404.1517. An applicant may object to the person that NMDDS designates to perform the consultative examination and, "if there is a good reason for the objection," NMDDS will designate someone else. 20 C.F.R. § 404.1519j. Defendant Daniel Roper is the NMDDS Director. See Complaint ¶ 5, at 2.

Plaintiff Michael Armstrong is an attorney who represents individuals seeking Social Security benefits, including disability benefits. See Complaint ¶ 2, at 2. On April 29, 2014, the SSA's Office of General Counsel told Armstrong that someone had filed an anonymous complaint against Armstrong alleging that his objections to the consultative evaluations that NMDDS scheduled for his clients "are ethical misconduct, ... cause delay in the processing of claims, and cause a disruption of proceedings in violation of 20 C.F.R. § 404.1740." Complaint ¶ 27, at 5. The anonymous complaint also alleged that "Armstrong's conduct constituted advisement to his clients not to comply with Social Security rules and regulation." Complaint ¶ 28, at 6. "On July 22, 2014, the Office of General Counsel advised Plaintiff Armstrong that his actions ‘did not appear to violate the Rules of Conduct and Standards of Responsibility for Representatives,’ and identified the formerly anonymous complainant as Defendant Fernandez–Rice." Complaint ¶ 30, at 6. ODAR employs Fernandez–Rice as an ALJ. See Complaint ¶ 7, at 3.

Plaintiff Beryl Ann Griego is one of Armstrong's clients who seeks Social Security disability benefits. See Complaint ¶ 3, at 2. She currently has a claim pending before NMDDS for disability benefits. See Complaint ¶ 39, at 7. NMDDS arranged for a consultative examination for Griego, scheduled the examination for July 25, 2015, and provided notice of the examination to Griego on June 16, 2015, but NMDDS did not tell Griego the name of the doctor who would perform the examination. See Complaint ¶¶ 42–43, at 7. On July 14, 2015, Armstrong objected to NMDDS' failure to provide the name of the doctor who would conduct Griego's consultative examination, because that information was required to exercise Griego's right to object to the person designated to perform her examination. See Complaint ¶ 44, at 7–8. Armstrong advised Griego not to attend the July 25, 2015 examination, and she did not attend. See Complaint ¶¶ 45–46, at 8. NMDDS then scheduled two more consultative examinations; it scheduled one for August 29, 2015, and it scheduled another for November 28, 2015. Complaint ¶ 47, at 8. NMDDS did not provide notice of who would conduct either examination, Armstrong objected to NMDDS's failure to provide that information, and Griego did not attend either examination. See Complaint ¶¶ 48–50, at 8. While none of the three consultative-examination notices listed the name of the doctor who would conduct the examination, all three identified the facility that would perform the examination as "ADVANCED MEDICAL CONSULTANTS SILVERMAN SPINE & INJURY CENTER," and provided its address. Notice of Disability Examination(s) at 1, dated June 16, 2015, filed March 15, 2016 (Doc. 8–1)("June Notice"); Notice of Disability Examination(s) at 1, dated August 19, 2015, filed March 15, 2016 (Doc. 8–1)("August Notice"); Notice of Disability Examination(s) at 1, dated November 18, 2015, filed March 15, 2016 (Doc. 8–1)("November Notice").³

PROCEDURAL HISTORY

The Plaintiffs petition the Court for "a writ of mandamus ... ordering Defendant Roper to perform his non-discretionary duty as Director of [NMDDS] to Social Security disability applicants with timely notice of the name" of the person who NMDDS has selected to perform a consultative evaluation. Complaint ¶ 56, at 9. The Plaintiffs also seek monetary damages under both 42 U.S.C. § 1983 and under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (" Bivens"). See Complaint ¶ 1, at 1.

1. The First Motion to Dismiss.

On March 15, 2016, "Defendant, Acting Commissioner of Social Security, standing in place of the named-defendant[s]" NMDSS and Roper, in his official capacity as NMDSS Director, moved to dismiss the Complaint. First Motion at 1. The Defendants assert that the "Plaintiffs cannot show that a writ of mandamus is appropriate or necessary." First Motion at 3. According to the Defendants, mandamus relief is inappropriate, because the "Plaintiffs did not show that any avenues of relief, much less all, were exhausted to ascertain any medical provider's name," First Motion at 10, and because, "[h]ad either Ms. Griego or Mr. Armstrong contacted the NMDSS, the NMDSS could easily have provided the physician's name," First Motion at 12. See First Motion at 3 ("[T]he NMDDS is fully amenable to providing the information upon request ...."). According to the Defendants, the Plaintiffs' failure to inquire about the names of examining physicians should bar mandamus relief, because "[o]ther courts have refused to grant a writ of mandamus when, like in the case at bar, the petitioner presents no evidence that other adequate non-judicial remedies were sought before filing the petition." First Motion at 15–16 (citing Maddalino v. West, 13 Vet.App. 475 (2000), and Costanza v. West, 12 Vet.App. 133, 134 (1999) ).

In the Plaintiffs' Response to Defendant's Motion to Dismiss Complaint, filed April 16, 2016 (Doc. 16)("First Response"), the Plaintiffs argue that mandamus relief is appropriate, because NMDSS has a nondiscretionary "duty to provide reasonable notice of the names of medical providers assigned to perform consultative evaluations," First Response at 6, and because NMDSS has failed to execute that duty, see First Response at 10–14. According to the Plaintiffs, that nondiscretionary duty stems from an SSA regulation requiring NMDSS to provide "reasonable notice ... of the person or facility who will" perform a consultative examination, 20 C.F.R. § 404.1517, and from another SSA regulation that permits people "to object to your being examined by a medical source we have designated to perform a consultative examination," 20 C.F.R. § 404.1519j. The Plaintiffs also maintain that the SSA's Program Operation Manual System ("POMS")—"the SSA's administrative manual that dictates agency procedure at the initial determination a[n]d reconsideration stages," First Response at 8 n.4—indicates that the initial notice should contain the name of the doctor conducting the consultative evaluation, because POMS contains a model appointment notice template, and "[t]hat template contains a field for ‘Name and Address’ of the medical evaluator," First Response at 8.

The Plaintiffs also observe that, "[...