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Joseph N. v. Berryhill

United States District Court, D. Rhode Island

June 5, 2018

JOSEPH N., Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          WILLIAM E. SMITH, CHIEF JUDGE.

         On May 15, 2018, Magistrate Judge Lincoln D. Almond filed a Report and Recommendation (“R&R”) (ECF No. 12), recommending that Plaintiff's Motion To Reverse (ECF No. 10) be denied and that Defendant's Motion To Affirm (ECF No. 11) be granted. Having reviewed the R&R and the parties' submissions, and having heard no objections, the Court accepts the R&R and adopts its recommendations and reasoning. Accordingly, the Court DENIES Plaintiff's Motion To Reverse (ECF No. 10) and GRANTS Defendant's Motion To Affirm (ECF No. 11). Final judgment shall enter for Defendant.

         IT IS SO ORDERED.

         REPORT AND RECOMMENDATION

          LINCOLN D. ALMOND UNITED STATES MAGISTRATE JUDGE.

         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”) 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).

         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. 10) be DENIED and that the Commissioner's Motion to Affirm (ECF Doc. No. 11) be GRANTED.

         I. PROCEDURAL HISTORY

         Plaintiff 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.

         II. THE PARTIES' POSITIONS

         Plaintiff 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.

         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 (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 (1stCir. 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 ...


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