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 Social
Security Insurance (“SSI”) under the Social
Security Act (the “Act”), 42 U.S.C. §
405(g). Plaintiff filed his Complaint on February 22, 2016
seeking to reverse the decision of the Commissioner. On July
30, 2016, Plaintiff filed a Motion to Reverse the Decision of
the Commissioner. (Document No. 9). On August 25, 2016, the
Commissioner filed a Motion for an Order Affirming the
Decision of the Commissioner. (Document No. 10). Plaintiff
filed a Reply Brief on October 13, 2016. (Document No.
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 Plaintiff's Motion to Reverse (Document
No. 9) be DENIED and that the Commissioner's Motion to
Affirm (Document No. 10) be GRANTED.
filed an application for SSI on May 9, 2013 (Tr. 177-185)
alleging disability since June 1, 2005. The application was
denied initially and on reconsideration. Plaintiff filed
previous SSI applications in 2009 and 2012, which were
denied, but not administratively appealed, and which became
administratively final. (Tr. 13). Plaintiff requested an
Administrative Hearing. On September 10, 2014, a hearing was
held before Administrative Law Judge Donald P. Cole (the
“ALJ”) at which time Plaintiff, represented by
counsel, and a vocational expert (“VE”) appeared
and testified. (Tr. 34-62). The ALJ issued an unfavorable
decision to Plaintiff on October 2, 2014. (Tr. 10-26). The
Appeals Council denied Plaintiff's request for review on
January 12, 2016. (Tr. 1-3). Therefore the ALJ's decision
became final. A timely appeal was then filed with this Court.
argues that the ALJ failed to properly assess his credibility
and failed to properly account for his chronic back pain in
his RFC finding. Plaintiff also contends that the ALJ erred
by favoring the opinions of Dr. Green and Dr. Laurelli,
reviewing physicians, over the opinions of Dr. Rodriguez, his
Commissioner disputes Plaintiff's claims and contends
that the ALJ's findings are supported by substantial
evidence and must be affirmed.
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 (1st
Cir. 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, and does not
enter a final judgment until after the completion of remand
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.
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