United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
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 her Complaint on July 26, 2016
seeking to reverse the decision of the Commissioner. On June
1, 2017, Plaintiff filed a Motion to Reverse the Decision of
the Commissioner. (Document No. 12). On June 23, 2017, the
Commissioner filed a Motion for an Order Affirming the
Decision of the Commissioner. (Document No. 13).
the consent of the parties, this case has been referred to me
for all further proceedings and the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.
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 the Decision
of the Commissioner (Document No. 12) be DENIED and that the
Commissioner's Motion for an Order Affirming the Decision
of the Commissioner (Document No. 13) be GRANTED.
filed an application for SSI on March 28, 2013 alleging
disability since May 2, 2012. (Tr. 240-248). The application
was denied initially on November 20, 2013 (Tr. 91-104) and on
reconsideration on March 14, 2014. (Tr. 106-119). Plaintiff
requested an Administrative Hearing. On December 10, 2014, a
hearing was held before Administrative Law Judge Donald P.
Cole (the “ALJ”) at which counsel for Plaintiff,
an interpreter and vocational expert (“VE”)
appeared and/or testified. (Tr. 65-79). Plaintiff was not
present at the December 10, 2014 hearing, therefore, a
supplemental hearing was held on May 11, 2015 at which time
she appeared and testified, assisted by counsel and by an
interpreter. A VE and ME also appeared and testified. The ALJ
issued an unfavorable decision to Plaintiff on June 12, 2015.
(Tr. 9-11, 15-29). On June 27, 2016, the Appeals Council
denied Plaintiff's request for review. (Tr. 1-3). A
timely appeal was then filed with this Court.
THE PARTIES' POSITIONS
argues that the ALJ violated Social Security Ruling
(“SSR”) 00-4p by failing to resolve the
inconsistency between the VE's testimony and the
Dictionary of Occupational Titles (“DOT”).
Commissioner disputes Plaintiff's claims and contends
that the ALJ properly relied upon the VE's testimony in
making his Step 5 finding.
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.
court retains jurisdiction pending remand, and does not enter
a final judgment until after the completion of remand