United States District Court, D. Rhode Island
WILLIAM E. SMITH, CHIEF JUDGE
Judge Lincoln D. Almond filed a Report and Recommendation
(“R&R”) (ECF No. 14) in this case,
recommending the Court deny Plaintiff's Motion to Reverse
the Decision of the Commissioner (“Plaintiff's
Motion”) (ECF No. 11) and grant Defendant's Motion
for an Order Affirming the Decision of the Commissioner
(“Defendant's Motion”) (ECF No. 13).
careful review of the papers attending these motions, and of
the R&R, and having heard no objections, the Court
ACCEPTS the R&R and adopts its recommendations and
reasoning. Plaintiff's Motion (ECF No. 11) is DENIED and
Defendant's Motion (ECF No. 13) is GRANTED. IT IS SO
STATES DISTRICT COURT DISTRICT OF RHODE ISLAND
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
Supplemental Security Income (“SSI”) under the
Social Security Act (the “Act”), 42 U.S.C. §
405(g). Plaintiff filed his Complaint on October 7, 2016
seeking to reverse the Decision of the Commissioner. On
September 30, 2017, Plaintiff filed a Motion to Reverse the
Decision of the Commissioner. (ECF Doc. No. 11). On November
21, 2017, the Commissioner filed a Motion for an Order
Affirming the Commissioner's Decision. (ECF Doc. 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 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 (ECF Doc.
No. 11) be DENIED and that the Commissioner's Motion to
Affirm (ECF Doc. No. 13) be GRANTED.
filed applications for DIB (Tr. 276-279) and SSI (Tr.
280-289) on July 9, 2012 alleging disability since September
8, 2011. The applications were denied initially on January
17, 2013 (Tr. 85- 94, 95-104) and on reconsideration on May
6, 2013. (Tr. 107-117, 118-128). Plaintiff's date last
insured is December 31, 2016. (Tr. 134). Plaintiff requested
an Administrative Hearing. On January 6, 2014, a hearing was
held before Administrative Law Judge Martha Bower (the
“ALJ”) at which time Plaintiff, represented by
counsel and assisted by an interpreter, and a vocational
expert (“VE”) appeared and testified. (Tr.
71-83). The ALJ issued an unfavorable decision to Plaintiff
on February 14, 2014. (Tr. 131-150). A request for review was
filed with the Appeals Council on April 4, 2014 (Tr. 224-226)
and on March 19, 2015, the Appeals Council remanded the case
back to the ALJ. (Tr. 151-153). The remand hearing was held
on August 31, 2015 at which time, Plaintiff, represented by
counsel and assisted by an interpreter, and a VE appeared and
testified. The ALJ again issued an unfavorable decision on
October 15, 2015. (Tr. 24-45). The Appeals Council denied
Plaintiff's request for review on September 22, 2016.
(Tr. 1-4). Therefore, the ALJ's decision became final. A
timely appeal was then filed with this Court.
THE PARTIES' POSITIONS
argues that the ALJ erred at Step 2 in finding that his
depression was not a “severe” impairment, and in
not properly weighing the medical opinion evidence to
establish his RFC.
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 Commissioner relied).
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 ...