Maldonado v. Berryhill

          ORDER

          WILLIAM E. SMITH CHIEF JUDGE.

         In a Report and Recommendation (“R&R”) filed on December 11, 2017 (ECF No. 14), Magistrate Judge Lincoln D. Almond recommended that Plaintiff's Motion for Reversal (ECF No. 10) be granted and that Defendant the Commissioner of the Social Security Administration's (“Commissioner”) Motion To Affirm (ECF No. 12) be denied. Magistrate Judge Almond also recommended that the Court enter final judgment for Plaintiff, reversing the decision of the Commissioner and remanding the matter for further administrative proceedings consistent with the R&R. After carefully reviewing the R&R and the relevant papers, and having heard no objections, the Court ACCEPTS the R&R in its entirety and adopts the recommendations and reasoning set forth therein.

         The Court therefore GRANTS Plaintiff's Motion for Reversal (ECF No. 10) and DENIES the Commissioner's Motion To Affirm (ECF No. 12). Final judgment shall enter in favor of Plaintiff. This matter is remanded for further administrative proceedings consistent with this decision.

         IT IS SO ORDERED.

         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 Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”), 42 U.S.C. § 405(g). Plaintiff filed his Complaint on December 18, 2016 seeking to reverse the Decision of the Commissioner. On September 15, 2017, Plaintiff filed a Motion for Reversal of the Disability Determination of the Commissioner of Social Security. (ECF Doc. No. 10). On November 16, 2017, the Commissioner filed a Motion to Affirm her Decision. (ECF Doc. No. 12). Plaintiff filed a Reply Brief on November 30, 2017. (ECF Doc. No. 13).^[1]

         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 for Reversal (ECF Doc. No. 10) be GRANTED and that the Commissioner's Motion to Affirm (ECF Doc. No. 12) be DENIED.

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for SSI on September 3, 2013 alleging disability since January 1, 2010. (Tr. 284-292). The application was denied initially on December 31, 2013 (Tr. 153-162) and on reconsideration on May 28, 2014. (Tr. 164-175). Plaintiff requested an Administrative Hearing. On February 26, 2015, a hearing was held before Administrative Law Judge Martha Bower (the “ALJ”) at which time Plaintiff, represented by counsel, appeared and testified. (Tr. 143-152). The ALJ continued the hearing to September 22, 2015 at which time Plaintiff, a Vocational Expert (“VE”) and a Medical Expert (“ME”) appeared and testified. (Tr. 44-76). The ALJ issued an unfavorable decision to Plaintiff on October 15, 2015. (Tr. 22-43). The Appeals Council denied Plaintiff's request for review on October 19, 2016. (Tr. 1-7). Therefore, the ALJ's decision became final. A timely appeal was then filed with this Court.

         II. THE PARTIES' POSITIONS

         Plaintiff argues that the ALJ's decision is infected with several errors as outlined in his Memorandum.

         The Commissioner disputes Plaintiff's claims and contends that the ALJ's decision is legally correct, supported by substantial evidence and thus must be affirmed.

         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^thCir. 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^stCir. 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^st Cir. 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 ...