Marold v. Colvin

          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 Social Security Insurance (“SSI”) under the Social Security Act (the “Act”), 42 U.S.C. § 405(g). Plaintiff filed his Complaint on January 12, 2016 seeking to reverse the decision of the Commissioner. On May 15, 2016, Plaintiff filed a Motion to Reverse the Decision of the Commissioner. (Document No. 9). On July 14, 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 29, 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 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 Plaintiff's Motion to Reverse (Document No. 16) be GRANTED and that the Commissioner's Motion to Affirm (Document No. 19) be DENIED.

         I. PROCEDURAL HISTORY

         Plaintiff filed applications for DIB on February 20, 2009 and for SSI on May 31, 2009 alleging disability since January 24, 2006. The applications were denied initially on September 9, 2009 and on reconsideration on February 24, 2010. Plaintiff requested an Administrative Hearing which took place on February 1, 2011 where he, represented by counsel, appeared and testified. Also present was a Vocational Expect (“VE”) and a Medical Expert (“ME”). Administrative Law Judge Martha Bower (the “ALJ”) issued an unfavorable decision to Plaintiff on February 3, 2011. The Review Board did not complete its review in the time allowed. Therefore, the ALJ's decision became final.

         Plaintiff again filed applications for DIB on January 19, 2012 (Tr. 282-286) and for SSI on March 23, 2012 (Tr. 289-297) alleging disability since July 4, 2007 on his DIB application and January 1, 2006 on his SSI application. At the November 5, 2013 hearing, Plaintiff revised his disability onset date to February 4, 2011 which is the day after the unfavorable decision issued by ALJ Bower. (Tr. 42). The applications were denied initially on June 1, 2012 (Tr. 117-127) and on reconsideration on April 22, 2013. (Tr. 130-143). Plaintiff's date last insured is March 2011. (Tr. 81). Plaintiff requested an Administrative Hearing. On November 5, 2013, a hearing was held before Administrative Law Judge Barry H. Best (“ALJ Best”) at which time Plaintiff appeared and was represented by counsel. (Tr. 75-83). The ALJ postponed the hearing in order to have an ME present. On February 11, 2014 a supplemental hearing was held before ALJ Best, at which time Plaintiff, represented by counsel, a vocational expert (“VE”) and a medical expert (“ME”) appeared and testified. (Tr. 39-74). ALJ Best issued an unfavorable decision to Plaintiff on March 28, 2014. (Tr. 20-32). The Appeals Council denied Plaintiff's request for review on October 29, 2015. (Tr. 3-5). Therefore ALJ Best's decision became final. A timely appeal was then filed with this Court.

         II. THE PARTIES' POSITIONS

         Plaintiff argues that the ALJ erred in his evaluation of the treating physician opinions and his credibility. In addition, Plaintiff contends that the ALJ committed error by neglecting to consider post-hearing medical records as allowed at the hearing.

         The Commissioner disputes Plaintiff's claims and contends that the ALJ's findings are supported by substantial evidence and must be affirmed. She also contends that any error in refusing to consider post-hearing submissions is harmless.

         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 (1^st Cir. 1991) (per curiam); Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218, 222 (1^st 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 (1^st Cir. 1987); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11^th 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 (1^st Cir. 1987); Parker v. Bowen, 793 F.2d 1177 (11^th 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 (1^st Cir. 1999) (per curiam); accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11^th 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 (1^stCir. 2001) citing, Mowery v. Heckler, 771 F.2d 966, 973 (6^th 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 (5^th 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 (1^st 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 (11^th 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 (11^th 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, ...