United States District Court, D. Rhode Island
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND, United States Magistrate Judge
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”) under the Social Security Act
(the “Act”), 42 U.S.C. § 405(g). Plaintiff
filed his Complaint on August 16, 2017 seeking to reverse the
Decision of the Commissioner. On March 2, 2018, Plaintiff
filed a Motion to Reverse the Decision of the Commissioner.
(ECF Doc. No. 10). On March 30, 2018, the Commissioner filed
a Motion for an Order Affirming the Decision of the
Commissioner. (ECF Doc. No. 11).
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. 10) be DENIED and that the Commissioner's Motion to
Affirm (ECF Doc. No. 11) be GRANTED.
filed an application for DIB on April 7, 2014 alleging
disability since November 27, 2013. (Tr. 204-207). The
application was denied initially on August 23, 2014 (Tr.
92-105) and on reconsideration on January 9, 2015. (Tr.
125-127). Plaintiff requested an Administrative Hearing. On
January 12, 2016, a hearing was held before Administrative
Law Judge Berry H. Best (the “ALJ”) at which time
Plaintiff, represented by counsel, and a Vocational Expert
(“VE”) appeared and testified. (Tr. 58-91). A
supplemental hearing was held before the ALJ on May 17, 2016
at which time Plaintiff, represented by counsel, a VE and
medical expert (“ME”) appeared and testified.
(Tr. 36-57). The ALJ issued an unfavorable decision to
Plaintiff on June 22, 2016. (Tr. 7-28). The Appeals Council
denied Plaintiff's request for review on June 21, 2017.
(Tr. 1-5). Therefore, the ALJ's decision became final. A
timely appeal was then filed with this Court.
THE PARTIES' POSITIONS
argues that the ALJ's RFC assessment fails to incorporate
manipulative limitations related to his diabetic neuropathy
and that the ALJ failed to properly assess his credibility.
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
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
(1stCir. 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.
The court retains jurisdiction pending remand, ...