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
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 Insurance (“SSI”) under the
Social Security Act (the “Act”), 42 U.S.C. §
405(g). Plaintiff filed her Complaint on August 28, 2017
seeking to reverse the Decision of the Commissioner. On April
17, 2018, Plaintiff filed a Motion for Reversal of the
Disability Determination of the Commissioner. (ECF Doc. No.
10). On July 18, 2018, the Commissioner filed a Motion for an
Order Affirming the Decision of the Commissioner. (ECF Doc.
No. 14). Plaintiff filed a Reply on August 15, 2018.
(Document No. 15).
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. 14) be
filed applications for DIB and SSI on July 9, 2014 (Tr.
250-251, 257-265) alleging disability since May 1, 2014. The
applications were denied initially on November 5, 2014 (Tr.
150-162, 163-175) and on reconsideration on February 4, 2015.
(Tr. 178-187, 188-197). Plaintiff requested an Administrative
Hearing. On March 24, 2016, a hearing was held before
Administrative Law V. Paul McGinn (the “ALJ”) at
which time Plaintiff, represented by counsel, and a
Vocational Expert (“VE”) and Medical Expert
(“ME”) appeared and testified. (Tr. 118-141). The
ALJ issued an unfavorable decision to Plaintiff on May 10,
2016. (Tr. 22-43). The Appeals Council denied Plaintiff's
request for review on June 29, 2017. (Tr. 1-7). Therefore,
the ALJ's decision became final. A timely appeal was then
filed with this Court.
THE PARTIES' POSITIONS
argues that the ALJ erred in several ways including his Step
2 determination that she did not have a “severe”
mental impairment, his evaluation of the opinion evidence and
his evaluation of her credibility.
Commissioner disputes Plaintiff's claims and contends
that the ALJ's conclusions 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, and does not
enter a final judgment until after the completion of remand