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Richard v. Colvin

United States District Court, D. Rhode Island

August 2, 2016

CHERYL A. RICHARD
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration

          REPORT AND RECOMMENDATION

          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 Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”), 42 U.S.C. § 405(g). Plaintiff filed her Complaint on June 19, 2015 seeking to reverse the decision of the Commissioner. On April 30, 2016, Plaintiff filed a Motion for Reversal of the Disability Determination of the Commissioner of Social Security. (Document No. 9). On June 30, 2016, the Commissioner filed a Motion for an Order Affirming the Decision of the Commissioner. (Document No. 12). Plaintiff filed a Reply Brief on July 14, 2016. (Document No. 13).

         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 legal research, I find that there is not 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 (Document No. 12) be DENIED and that Plaintiff's Motion (Document No. 9) be GRANTED and that the case be remanded solely for calculation and award of benefits.

         I. PROCEDURAL HISTORY

         Plaintiff filed an Application for DIB on September 16, 2009 (Tr. 259-260) and SSI on October 1, 2009 (Tr. 252-258) alleging disability since May 2, 2008. The Applications were denied initially on March 25, 2010 (Tr. 95-96) and on reconsideration on July 7, 2010. (Tr. 97-98). On August 16, 2010, Plaintiff requested an administrative hearing. (Tr. 130-131). On November 9, 2011, a hearing was held before Administrative Law Judge Hugh S. Atkins (the “ALJ”) at which time Plaintiff, represented by counsel and a vocational expert (“VE”) appeared and testified. (Tr. 66-84). The ALJ issued an unfavorable decision to Plaintiff on December 7, 2011. (Tr. 99-111). On May 16, 2013, the Appeals Council issued an Order remanding the case back to the ALJ. (Tr. 117-120). A second hearing was held before ALJ Atkins on November 5, 2013 (Tr. 40-64) at which time Plaintiff, represented by counsel, a VE and medical expert (“ME”) appeared and testified. The ALJ issued an unfavorable decision on January 8, 2014. (Tr. 9-31). The Appeals Council denied Plaintiff's Request for Review on April 20, 2015, therefore the ALJ's decision became final. (Tr. 1-3). A timely appeal was then filed with this Court.

         II. THE PARTIES' POSITIONS

         Plaintiff argues that the ALJ erred by failing to expressly and reasonably evaluate the opinion of the medical expert and the other medical evidence of record.

         The Commissioner disputes Plaintiff's claims and asserts that the ALJ properly considered the medical opinions and that substantial evidence supports his RFC finding and non-disability determination.

         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 ...


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