Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wertheim v. Colvin

United States District Court, D. Rhode Island

November 18, 2014

CAROLYN COLVIN, Commissioner of the Social Security, Administration

For Denise Wertheim, Plaintiff: Donna M. Nesselbush, LEAD ATTORNEY, Marasco & Nesselbush, L.L.P, Providence, RI.

For Carolyn Colvin, Acting Commissioner of Social Security, Defendant: Leslie J. Kane, LEAD ATTORNEY, U.S. Attorney's Office, Providence, RI.


LINCOLN D. ALMOND, United States 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") and Disability Insurance Benefits (" DIB") under the Social Security Act (the " Act"), 42 U.S.C. § 405(g). Plaintiff filed her Complaint on January 15, 2014 seeking to reverse the decision of the Commissioner. On July 31, 2014, Plaintiff filed a Motion to Reverse Without a Remand for a Rehearing or, Alternatively, With a Remand for a Rehearing of the Commissioner's Final Decision. (Document No. 8). On September 30, 2014, the Commissioner filed a Motion for an Order Affirming the Decision of the Commissioner. (Document No. 10).

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. 10) be GRANTED and that Plaintiff's Motion to Reverse Without a Remand for a Rehearing or, Alternatively, With a Remand for a Rehearing of the Commissioner's Final Decision (Document No. 8) be DENIED.


Plaintiff filed applications for DIB (Tr. 164-167) and SSDI (Tr. 168-174) on March 16, 2010 alleging disability since October 16, 2006. The applications were denied initially on November 23, 2010 (Tr. 66-69) and on reconsideration on May 7, 2011. (Tr. 74-80). Plaintiff requested an Administrative hearing. (Tr. 80). On May 7, 2012, a hearing was held before Administrative Law Judge Martha Bower (the " ALJ") at which time Plaintiff, represented by counsel, a vocational expert (" VE") and a medical expert (" ME") appeared and testified. (Tr. 27-36). The May 7, 2012 hearing was continued in order to obtain medical records from Plaintiff's primary care physician and to call upon a medical expert to testify. Therefore, a second hearing was held on October 1, 2012. (Tr. 37-57). The ALJ issued an unfavorable decision to Plaintiff on October 24, 2012. (Tr. 7-20). The Appeals Council denied Plaintiff's Request for Review on December 26, 2013, therefore the ALJ's decision became final. (Tr. 1-3). A timely appeal was then filed with this Court.


Plaintiff argues that the ALJ erred at Step 2 by not finding her depression to be a " severe" impairment and also erred by failing to properly evaluate her obesity and benign intracranial hypertension.

The Commissioner disputes Plaintiff's claims and asserts that the evidence did not support a Step 2 finding that her depression was a " severe" impairment and that the ALJ did fully consider Plaintiff's other impairments.


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. ยง 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.