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Garcia v. Berryhill

United States District Court, D. Rhode Island

August 8, 2017

NICTSA GARCIA
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration C.A.

          MEMORANDUM AND ORDER

          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 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).

         With 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.

         I. PROCEDURAL HISTORY

         Plaintiff 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.

         II. THE PARTIES' POSITIONS

         Plaintiff 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”).

         The Commissioner disputes Plaintiff's claims and contends that the ALJ properly relied upon the VE's testimony in making his Step 5 finding.

         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. ...


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