Guzman v. Berryhill

          ORDER

          WILLIAM E. SMITH, CHIEF JUDGE

         Magistrate 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^[1] (“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).

         After 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 ORDERED.

         UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

         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 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).

         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 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.

         I. PROCEDURAL HISTORY

         Plaintiff 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.

         II. THE PARTIES' POSITIONS

         Plaintiff 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.

         The Commissioner disputes Plaintiff's claims and contends that the ALJ's findings are supported by substantial evidence and 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^th 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 (1^st Cir. 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 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 ...