United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND United States Magistrate Judge.
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).
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
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.
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.
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
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
THE STANDARD OF REVIEW
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).
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
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
(1stCir. 2001) citing, Mowery v.
Heckler, 771 F.2d 966, 973 (6th Cir. 1985).
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).
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.
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.
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, ...