United States District Court, D. Rhode Island
JOSEPH P. MATTESON,
CAROLYN COLVIN, Commissioner of the Social Security Administration.
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND, Magistrate Judge.
This matter is before the Court for judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Social Security Disability Insurance ("SSDI") under the Social Security Act (the "Act"), 42 U.S.C. § 405(g). Plaintiff filed his Complaint on October 18, 2013 seeking to reverse the decision of the Commissioner. On April 26, 2014, Plaintiff filed a Motion for Judgment Reversing Decision. (Document No. 11). On July 11, 2014, the Commissioner filed a Motion for an Order Affirming the Decision of the Commissioner. (Document No. 14).
This matter has been referred to me for preliminary review, findings and recommended disposition. 28 U.S.C. § 636(b)(1)(B); LR Cv 72. Based upon my review of the record, the parties' submissions and independent research, I find that there is substantial evidence in this record to support the Commissioner's decision and findings that Plaintiff is not disabled within the meaning of the Act. Consequently, I recommend that the Commissioner's Motion for an Order Affirming the Decision of the Commissioner (Document No. 14) be GRANTED and that Plaintiff's Motion for Judgment Reversing Decision (Document No. 11) be DENIED.
I. PROCEDURAL HISTORY
Plaintiff filed an application for SSDI on March 16, 2007 (Tr. 96-100) alleging disability since March 28, 2005. He subsequently amended his disability onset date to May 1, 2006. (Tr. 1002). The application was denied initially (Tr. 61-63) and on reconsideration. (Tr. 53-57). Plaintiff requested an Administrative hearing on August 22, 2008. (Tr. 69-70). On September 9, 2009, a hearing was held before Administrative Law Judge Gerald Resnick (the "ALJ") at which time Plaintiff, represented by counsel and accompanied by his wife, and a vocational expert ("VE") appeared and testified. (1096-1116). The ALJ issued an unfavorable decision to Plaintiff on September 30, 2009. (Tr. 15-25). The Appeals Council did not complete its review of the claim during the time allowed, therefore the ALJ's decision became final. (Tr. 1-3).
On February 2, 2010, Plaintiff filed a Complaint in this Court (C.A. No. 10-048M) challenging the first denial of his application. On November 15, 2010, Defendant filed a motion for a voluntary remand for further administrative proceedings. Accordingly, on November 15, 2010, this Court issued a Judgment in favor of Plaintiff (Tr. 1084) and an order remanding Plaintiff's claim to the Appeals Council for further Agency action. (Tr. 1085-1086, 1088-1089). Following the issuance of the Court's Order, the Review Board issued an Order on January 13, 2011 remanding the matter. (Tr. 1091-1095).
On September 29, 2011, a hearing was held before the ALJ (Tr. 1023-1069) at which time the ME (Tr. 1027-1061) and VE (Tr. 1061-1068) testified. On October 6, 2011, the ALJ issued a second unfavorable decision. (Tr. 999-1022). On October 31, 2011, Plaintiff challenged this decision. (Tr. 1170-1186). On September 13, 2013, the Office of Disability Adjudication and Review in Virginia issued a notice rejecting Plaintiff's argument and affirming the second denial. (Tr. 994-997). Plaintiff now seeks reversal and/or remand of the second denial of his claim.
II. THE PARTIES' POSITIONS
Plaintiff argues that the ALJ erred by failing to find his statements concerning the severity of his symptoms to be credible, and by misapplying the standards for evaluating medical opinion evidence.
The Commissioner disputes Plaintiff's claims and asserts that the ALJ properly weighed the medical opinions in the record and properly assessed Plaintiff's credibility.
III. THE STANDARD OF REVIEW
The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more than a scintilla - i.e., the evidence must do more than merely create a suspicion of the existence of a fact, and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec'y of Health and Human Servs. , 955 F.2d 765, 769 (1st Cir. 1991) (per curiam); Rodriguez v. Sec'y of Health and Human Servs. , 647 F.2d 218, 222 (1st Cir. 1981).
Where the Commissioner's decision is supported by substantial evidence, the court must affirm, even if the court would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec'y of Health and Human Servs. , 819 F.2d 1, 3 (1st Cir. 1987); Barnes v. Sullivan , 932 F.2d 1356, 1358 (11th Cir. 1991). The court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Frustaglia v. Sec'y of Health and Human Servs. , 829 F.2d 192, 195 (1st Cir. 1987); Parker v. Bowen , 793 F.2d 1177 (11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied).
The court must reverse the ALJ's decision on plenary review, however, if the ALJ applies incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that he or she properly applied the law. Nguyen v. Chater , 172 F.3d 31, 35 (1st Cir. 1999) (per curiam); accord Cornelius v. Sullivan , 936 F.2d 1143, 1145 (11th Cir. 1991). Remand is unnecessary where all of the essential evidence was before the Appeals Council when it denied review, and the evidence establishes without any doubt that the claimant was disabled. Seavey v. Barnhart , 276 F.3d 1, 11 (1st Cir. 2001) citing, Mowery v. Heckler , 771 F.2d 966, 973 (6th Cir. 1985).
The court may remand a case to the Commissioner for a rehearing under sentence four of 42 U.S.C. § 405(g); under sentence six of 42 U.S.C. § 405(g); or under both sentences. Seavey , 276 F.3d at 8. To remand under sentence four, the court must either find that the Commissioner's decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim. Id .; accord Brenem v. Harris , 621 F.2d 688, 690 (5th Cir. 1980) (remand appropriate where record was insufficient to affirm, but also was insufficient for district court to find claimant disabled).
Where the court cannot discern the basis for the Commissioner's decision, a sentence-four remand may be appropriate to allow her to explain the basis for her decision. Freeman v. Barnhart , 274 F.3d 606, 609-610 (1st Cir. 2001). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. Diorio v. Heckler , 721 F.2d 726, 729 (11th Cir. 1983) (necessary for ALJ on remand to consider psychiatric report tendered to Appeals Council). After a sentence four remand, the court enters a final and appealable judgment immediately, and thus loses jurisdiction. Freeman , 274 F.3d at 610.
In contrast, sentence six of 42 U.S.C. § 405(g) provides
The court...may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding;
42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish (1) that there is new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level. See Jackson v. Chater , 99 F.3d 1086, 1090-1092 (11th Cir. 1996).
A sentence six remand may be warranted, even in the absence of an error by the Commissioner, if new, material evidence becomes available to the claimant. Id . With a sentence six remand, the parties must return to the court after remand to file modified findings of fact. Id . The court retains jurisdiction pending remand, and does not enter a final judgment until after the completion of remand proceedings. Id.
IV. THE LAW
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505. The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
A. Treating Physicians
Substantial weight should be given to the opinion, diagnosis and medical evidence of a treating physician unless there is good cause to do otherwise. See Rohrberg v. Apfel , 26 F.Supp.2d 303, 311 (D. Mass. 1998); 20 C.F.R. § 404.1527(d). If a treating physician's opinion on the nature and severity of a claimant's impairments, is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, the ALJ must give it controlling weight. 20 C.F.R. § 404.1527(d)(2). The ALJ may discount a treating physician's opinion or report regarding an inability to ...