Michael L. Levinson v. Social Security Administration

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL L. LEVINSON,
Petitioner
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent
______________________
2023-2277
______________________
Petition for review of the Merit Systems Protection
Board in No. CB-7521-17-0023-T-1.
______________________
Decided: July 30, 2024
______________________
MICHAEL L. L EVINSON , Atlanta, GA, pro se.
MEEN G EU O H , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY .
______________________
Before D YK, SCHALL , and HUGHES , Circuit Judges.
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LEVINSON v. SSA 2
P ER CURIAM .
Michael L. Levinson, appearing pro se, challenges the
Merit Systems Protection Board’s decision that the Social
Security Administration proved its charges of misconduct
and that good cause existed for removal from his position
as an administrative law judge. For the reasons that follow,
we affirm.
I
Since his appointment in 2004, Mr. Levinson has been
an administrative law judge in the Social Security Admin-
istration’s (SSA) Office of Disability Adjudication and Re-
view at the Macon, Georgia hearing office. S.A. 2.1 Between
January 2008 and May 2015, Mr. Levinson was detailed to
the Birmingham, Alabama hearing office, but returned to
the Macon hearing office in June 2015. S.A. 45. On June
28, 2017, the SSA filed a complaint charging Mr. Levinson
with neglect of duties, failure to follow directives, and con-
duct unbecoming of an administrative law judge. S.A. 2–3.
Based on these charges, the MSPB concluded the SSA es-
tablished good cause for Mr. Levinson’s removal and au-
thorized the SSA to remove him. S.A. 26. The conduct
relevant to each charge is described below.
A
Mr. Levinson was first charged with neglect of duty
based on the content of his decisions as an administrative
law judge. S.A. 5 (final MSPB decision); S.A. 53–54 (initial
MSPB decision). In 2015, the Office of Appellate Opera-
tions Division of Quality randomly sampled a collection of
Mr. Levinson’s decisions for “a focused quality review.”
S.A. 46. This review “identified deficiencies in multiple ar-
eas of [Mr. Levinson]’s decisions, including amended
1 Citations to “S.A.” refer to the Supplemental Ap-
pendix accompanying the SSA’s response brief.
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LEVINSON v. SSA 3
alleged onset dates, evaluation of opinion evidence, appli-
cation of the five-step sequential process, evaluation of re-
sidual functional capacity, vague or incomplete
hypothetical questions at hearings, and bench decisions.”
S.A. 46. The Hearing Office Chief Administrative Law
Judge (HOCALJ), Amy Uren, met with Mr. Levinson about
the results of the review and in 2016, directed Mr. Levin-
son to complete a 25-day training course to address the
identified deficiencies. S.A. 45–46. Mr. Levinson completed
the training course in 2016. S.A. 46. Subsequently, the
agency re-reviewed Mr. Levinson’s more recent 2016 deci-
sions, and concluded that the previously identified deficien-
cies persisted. See S.A. 46. The Associate Chief
Administrative Law Judge for Field Procedures and Em-
ployee Relations, Mark Sochaczewsky, then reviewed addi-
tional decisions, which he “identified as non-compliant
with agency regulations, policy, and interpretations of
law,” and Mr. Sochaczewsky issued a written report “iden-
tifying deficiencies in all 25 decisions” that he reviewed.
S.A. 46–47. Reviewing this evidence, the MSPB deter-
mined that the SSA had shown, by preponderant evidence,
that Mr. Levinson had neglected his duties. S.A. 53; see
also S.A. 5 & n.3, 10.
B
Mr. Levinson was next charged with failure to follow
three specific directives from his supervisors at the Macon
and Birmingham hearing offices. S.A. 6–9 (final MSPB de-
cision); see also S.A. 54–59 (initial MSPB decision).
First, on November 12, 2014, while Mr. Levinson was
detailed to the Birmingham hearing office,
HOCALJ Edward Zanaty “issued a directive to [Mr. Levin-
son] instructing him to cease directly contacting expert wit-
nesses and avoid any off the record discussions with expert
witnesses regarding their availability to provide testi-
mony.” S.A. 45, 47. Instead, as required by office policy,
Mr. Levinson was instructed “to have hearing office staff
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LEVINSON v. SSA 4
select and contact medical experts on a rotational basis as
mandated by [the SSA’s Hearings, Appeals, and Litigation
Law Manual].” S.A. 55–56. Nonetheless, Mr. Levinson
“continued to directly contact medical experts to determine
their availability for hearings.” S.A. 47. Based on these
facts, the MSPB determined that the SSA had proven that
Mr. Levinson violated HOCALJ Zanaty’s November 12 di-
rective. S.A. 6–9; see also S.A. 54–56.
Second, on June 28, 2016, HOCALJ Uren issued a di-
rective to Mr. Levinson based on his failure to “comply with
agency policy and correct issues identified in the focus
quality review.” S.A. 56. Mr. Levinson was specifically di-
rected to “comply with the Social Security Act, as well as
agency regulations, rulings, policy statements, and other
interpretations of the law in hearing and deciding cases.”
S.A. 56. The MSPB determined that Mr. Levinson’s contin-
ued failure to issue compliant decisions, as evidenced by
the results of the re-review and Mr. Sochaczewsky’s re-
view, constituted preponderant evidence that Mr. Levinson
violated HOCALJ Uren’s June 2016 directive. S.A. 58; see
also S.A. 6.
Third, during the summer of 2016, HOCALJ Uren re-
peatedly directed Mr. Levinson to attend sensitivity train-
ing based on “conduct unbecoming” of an administrative
law judge. S.A. 47. On October 24, 2016, HOCALJ Uren is-
sued her third directive to Mr. Levinson to attend sensitiv-
ity training on October 26, 2016. S.A. 47. Mr. Levinson
refused to attend any sensitivity training. S.A. 47–48. The
MSPB found that the SSA had proven that Mr. Levinson
violated a third directive given by HOCALJ Uren on Octo-
ber 24, 2016. S.A. 9; see also S.A. 58–59.
C
Finally, Mr. Levinson was charged with conduct unbe-
coming of an administrative law judge due to his “outbursts
over the course of 5 days between August 2016 and Janu-
ary 2017.” S.A. 9 (final MSPB decision); see also S.A. 59–64
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LEVINSON v. SSA 5
(initial MSPB decision). After HOCALJ Uren advised
Mr. Levinson of a scheduled Weingarten2 meeting regard-
ing “his possible violations of multiple agency directives . . .
as well as conduct unbecoming [of] an [administrative law
judge],” Mr. Levinson went to her office on August 24,
2016. S.A. 48. While there, Mr. Levinson “became upset
and was shaking,” telling “HOCALJ Uren in a raised voice
that she was harassing him, [that she] can’t hide her ac-
tions behind other people, and [that she] is responsible for
her actions.” S.A. 48. Then Mr. Levinson “got close to
HOCALJ Uren’s face and said she was like a Nazi and
worse than a Nazi.” S.A. 48. On September 6, 2016, during
the Weingarten meeting, Mr. Levinson accused
HOCALJ Uren of being “a liar” and said that “everything
[she said was] a lie.” S.A. 48.
Several months later, on December 13, 2016,
HOCALJ Uren approached Mr. Levinson to organize a
time to discuss medical expert invoices. S.A. 48. Mr. Levin-
son “became upset, was physically shaking, and red faced,”
said that he “would not answer a single question that
[HOCALJ Uren] ask[ed] of” him, and “shouted [that]
. . . [HOCALJ Uren] was the worst.” S.A. 48–49. Another
administrative law judge intervened to separate
HOCALJ Uren and Mr. Levinson. S.A. 49.
On January 9, 2017, HOCALJ Uren informed Mr. Lev-
inson that he was subject to an administrative investiga-
tion, and while she was speaking, Mr. Levinson “got up,
stated he was not going to listen to anything [she] had to
2 Union employees are entitled “to have a union rep-
resentative present at an investigatory meeting[, known as
a Weingarten meeting,] if the employee believes that there
might be disciplinary action.” Baker v. Dep’t of Interior, 243
F.3d 566 (Table), 2000 WL 1681219, at *3 n.4 (Fed. Cir.
2000) (non-precedential) (citing NLRB v. J. Weingarten,
Inc., 420 U.S. 251, 262 (1975)).
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LEVINSON v. SSA 6
say, and left the office.” S.A. 49. When HOCALJ Uren at-
tempted to serve Mr. Levinson with a written directive on
January 11, 2017, he went into a hearing room and refused
to allow her to enter. S.A. 49. When HOCALJ Uren even-
tually entered the hearing room, Mr. Levinson refused to
take the written directive and stated he would “not . . . read
it.” S.A. 49. When HOCALJ Uren gave Mr. Levinson the
written directive, he tore it up and left the hearing room.
S.A. 49.
The MSPB determined that the SSA proved by prepon-
derant evidence that Mr. Levinson engaged in conduct un-
becoming of an administrative law judge on August 24,
2016; September 6, 2016; December 13, 2016; January 9,
2017; and January 11, 2017. S.A. 9–10; S.A. 59–64.
The SSA requested that the MSPB (1) suspend
Mr. Levinson from the date of the SSA’s complaint until
the MSPB issued its final decision and (2) ultimately re-
move Mr. Levinson from federal service. S.A. 17. After con-
cluding that the SSA met its burden on each of its charges
against Mr. Levinson, the administrative law judge, in the
MSPB’s initial decision, determined that “there was good
cause to suspend the respondent for 2 years and demote
him.” S.A. 17. Mr. Levinson petitioned for review by the full
MSPB of the administrative judge’s decision sustaining the
charges. S.A. 4–5. The SSA petitioned for review by the full
MSPB, arguing the administrative judge erred when it ap-
proved a lesser penalty than removal. S.A. 4–5. In its final
decision, the MSPB found good cause for the penalty of re-
moval, considering the applicable Douglas3 factors, and
3 The Douglas factors are used to determine the rea-
sonableness of a penalty imposed on a federal employee.
Torres v. Dep’t of Homeland Sec., 88 F.4th 1379, 1383 (Fed.
Cir. 2023) (citing Douglas v. Veterans Admin., 5 M.S.P.B.
313, 331–33 (1981)).
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LEVINSON v. SSA 7
affirmed the administrative law judge’s initial decision as
modified. S.A. 1, 17–24.
Mr. Levinson timely appealed. We have jurisdiction to
review the final decision of the MSPB under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
We will set aside the MSPB’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); see also Edenfield v. Dep’t of Veterans
Affs., 54 F.4th 1357, 1359 (Fed. Cir. 2022). Further, “we are
bound by the [administrative judge’s] factual determina-
tions unless those findings are not supported by substan-
tial evidence.” See Bolton v. Merit Sys. Prot. Bd., 154 F.3d
1313, 1316 (Fed. Cir. 1998). “Substantial evidence means
‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Torres v. Dep’t of
Homeland Sec., 88 F.4th 1379, 1383 (Fed. Cir. 2023) (quot-
ing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
“Under the substantial evidence standard of review, we do
not reweigh evidence on appeal.” Jones v. Dep’t of Health &
Hum. Servs., 834 F.3d 1361, 1369 (Fed. Cir. 2016) (cleaned
up).
III
We begin by considering whether the MSPB erred in
finding that Mr. Levinson neglected his duties, failed to fol-
low three directives, and engaged in conduct unbecoming
of an administrative law judge. Then, we turn briefly to the
MSPB’s determination that good cause existed for Mr. Lev-
inson’s removal.
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LEVINSON v. SSA 8
A
On appeal, Mr. Levinson focuses on the neglect-of-duty
charge. See, e.g., Pet. Br. 3–6, 12–13. In particular,
Mr. Levinson argues that the MSPB did not “cite or illus-
trate . . . one legally insufficient decision” written by him.
Pet. Br. 12–13; see also Pet. Reply Br. 3–4, 13. We disagree.
First, the MSPB identified several inadequate decisions, is-
sued by Mr. Levinson while he was an administrative law
judge, in its initial decision, albeit in its discussion of his
failure to follow directives. See S.A. 57–58. The MSPB’s fi-
nal decision did not explicitly mention those identified de-
cisions because Mr. Levinson did not dispute the neglect-
of-duty charge or the related finding that “he failed to fol-
low a directive when he continued to issue decisions that
did not comply with the Macon HOCALJ’s June 28, 2016
directive to issue legally sufficient decisions.” S.A. 6; see
also S.A. 5 & n.3. Further, the same conduct (issuing non-
compliant decisions) was the basis for both his neglect-of-
duty charge and his failure to follow directives charge.
Compare S.A. 46–47 (discussing “Neglect of Duties” and
making findings regarding “identified deficiencies in mul-
tiple areas of [Mr. Levinson’s decisions]”), with S.A. 47 (dis-
cussing “Failure to Follow Directives” and finding “[o]n
June 28, 2016, HOCALJ Uren issued a second directive re-
quiring [Mr. Levinson] to demonstrate significant improve-
ment by issuing policy compliant decisions and correcting
errors identified in the focus quality review”). Therefore,
the MSPB did cite legally insufficient decisions in connec-
tion with Mr. Levinson’s neglect-of-duty charge. To the ex-
tent Mr. Levinson cites to contrary evidence in the record,
we nonetheless are persuaded that substantial evidence
supports the MSPB’s finding on the neglect-of-duty charge.
Regarding the other charges, Mr. Levinson does not
meaningfully dispute that he committed the acts he was
charged with committing or even argue that no substantial
evidence supports the MSPB’s findings on each charge. In-
stead, his arguments on appeal are focused on the agency’s
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LEVINSON v. SSA 9
alleged wrongdoing, its attempts to silence him, or other
incidents that were not the basis for his removal based on
the MSPB’s final decision. See Pet. Br. 6–12, 13–15; see also
Pet. Br. 1–4, 13. But our review of the MSPB’s decisions is
limited by statute, and after reviewing the entire record,
we conclude that the MSPB’s findings that Mr. Levinson
neglected his duties, failed to follow directives, and en-
gaged in conduct unbecoming of an administrate law judge,
are supported by substantial evidence.
B
Finally, we consider the MSPB’s determination that
the SSA established good cause for Mr. Levinson’s removal.
Under 5 U.S.C. § 7521(a), “action may be taken against
an administrative law judge . . . by the agency in which the
administrative law judge is employed only for good cause
established and determined by the [MSPB] on the record
after opportunity for hearing before the Board.” “We may
overturn a penalty imposed by the [MSPB] for an [admin-
istrative law judge’s] misconduct ‘[o]nly in the exceptional
case in which the penalty exceeds that permitted by statute
or regulation[] or is so harsh that it amounts to an abuse of
discretion.’” Long v. Social Sec. Admin., 635 F.3d 526, 538
(Fed. Cir. 2011) (quoting Brennan v. Dep’t of Health &
Hum. Servs., 787 F.2d 1559, 1563 (Fed. Cir. 1986)) (first,
second, and fourth alterations added).
In its final decision, the MSPB considered Mr. Levin-
son’s largely successful work history with SSA and credited
his feelings of mistreatment. See S.A. 22. Nonetheless, the
MSPB concluded that “these factors do not outweigh those
that support [Mr. Levinson’s] removal, particularly the na-
ture of the offenses and their impact on the [SSA], as well
as [Mr. Levinson’s] lack of rehabilitative potential.” S.A.
22.
On appeal, Mr. Levinson does not challenge the
MSPB’s penalty determination. Mr. Levinson does,
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LEVINSON v. SSA 10
however, request reinstatement and compensation. Pet.
Br. 14–15; Pet. Reply Br. 13. Considering the record, we
conclude that the MSPB thoroughly analyzed the relevant
Douglas factors in concluding there was good cause for
Mr. Levinson’s removal and we affirm.
IV
To the extent Mr. Levinson has made additional argu-
ments, we have considered them and find them unpersua-
sive. The MSPB’s findings on each charge are supported by
substantial evidence and its decision authorizing Mr. Lev-
inson’s removal from his position as an administrative law
judge is affirmed.
AFFIRMED
COSTS
No costs.
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