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”) under the
Social Security Act (the “Act”), 42 U.S.C. §
405(g). Plaintiff filed his Complaint on October 31, 2017
seeking to reverse the Decision of the Commissioner. On July
14, 2018, Plaintiff filed a Motion for Reversal of the
Disability Determination of the Commissioner of Social
Security. (ECF Doc. No. 13). On October 15, 2018, the
Commissioner filed a Motion for an Order Affirming the
Decision of the Commissioner. (ECF Doc. No. 19). Plaintiff
filed a Reply on November 12, 2018. (ECF Doc. No. 21).
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 for Reversal (ECF
Doc. No. 13) be DENIED and that the Commissioner's Motion
to Affirm (ECF Doc. No. 19) be GRANTED.
filed an application for DIB on December 22, 2014 (Tr.
148-154) alleging disability since November 1, 2013. The
application was denied initially on December 20, 2014 (Tr.
74-83) and on reconsideration on July 18, 2015. (Tr. 85-96).
Plaintiff requested an Administrative Hearing. On June 24,
2016, a hearing was held before Administrative Law Judge
Jason Mastrangelo (the “ALJ”) at which time
Plaintiff, represented by counsel, and a Vocational Expert
(“VE”) appeared and testified. (Tr. 43-72). The
ALJ issued an unfavorable decision to Plaintiff on August 19,
2016. (Tr. 26-42). The Appeals Council denied Plaintiff's
request for review on August 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 committed multiple errors warranting
remand and also that the Appeals Council was
“egregiously mistaken” in its treatment of new
Commissioner disputes Plaintiff's claims and contends
that the ALJ's decision is supported by substantial
evidence and must be affirmed. She also denies any error by
the Appeals Council in considering new medical evidence.
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
HHS, 955 F.2d 765, 769 (1st Cir. 1991)
(per curiam); Rodriguez v. Sec'y of
HHS, 647 F.2d 218, 222 (1stCir. 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 HHS, 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
HHS, 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 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
defines disability as the inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C.
§§ 416(i), 423(d)(1); 20 C.F.R. § 404.1505.
The impairment must be severe, making the claimant unable to
do her previous work, or any other substantial gainful
activity which exists in the national economy. 42 U.S.C.
§ 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
weight should be given to the opinion, diagnosis and medical
evidence of a treating physician unless there is good cause
to do otherwise. See Rohrberg v. Apfel, 26 F.Supp.2d
303, 311 (D. Mass. 1998); 20 C.F.R. § 404.1527(d). If a
treating physician's opinion on the nature and severity
of a claimant's impairments is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in the record, the ALJ must give it controlling
weight. 20 C.F.R. § 404.1527(d)(2). The ALJ may discount
a treating physician's opinion or report regarding an
inability to work if it is unsupported by objective medical
evidence or is wholly conclusory. See Keating v.
Sec'y of HHS, 848 F.2d 271, 275-276 (1st
treating physician has merely made conclusory statements, the
ALJ may afford them such weight as is supported by clinical
or laboratory findings and other consistent evidence of a
claimant's impairments. See Wheeler v. Heckler,
784 F.2d 1073, 1075 (11th Cir. 1986). When a
treating physician's opinion does not warrant controlling
weight, the ALJ must nevertheless weigh the medical opinion
based on the (1) length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the
treatment relationship; (3) the medical evidence supporting
the opinion; (4) consistency with the record as a whole; (5)
specialization in the medical conditions at issue; and (6)
other factors which tend to support or contradict the
opinion. 20 C.F.R § 404.1527(c). However, a treating
physician's opinion is generally entitled to more weight
than a consulting physician's opinion. See 20
C.F.R. § 404.1527(c)(2).
is required to review all of the medical findings and other
evidence that support a medical source's statement that a
claimant is disabled. However, the ALJ is responsible for
making the ultimate determination about whether a claimant
meets the statutory definition of disability. 20 C.F.R.
§ 404.1527(e). The ALJ is not required to give any
special significance to the status of a physician as treating
or non-treating in weighing an opinion on whether the
claimant meets a listed impairment, a claimant's residual
functional capacity (see 20 C.F.R. §§
404.1545 and 404.1546), or the application of vocational