United States District Court, D. Rhode Island
ROGER T.
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration
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”) under the
Social Security Act (the “Act”), 42 U.S.C. §
405(g). Plaintiff filed his Complaint on February 7, 2018
seeking to reverse the Decision of the Commissioner. On July
28, 2018, Plaintiff filed a Motion to Reverse the Decision of
the Commissioner. (ECF Doc. No. 13). On September 26, 2018,
the Commissioner filed a Motion for an Order Affirming the
Decision of the Commissioner. (ECF Doc. No. 15). A hearing
was held on January 14, 2019. The Court heard argument and
ordered that the Administrative Record be supplemented with
additional medical evidence reviewed in connection with
Plaintiff's subsequent application and award of benefits.
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. 13) be DENIED and that the Commissioner's Motion to
Affirm (ECF Doc. No. 15) be GRANTED.
I.
PROCEDURAL HISTORY
Plaintiff
filed an application for DIB on January 31, 2012 (Tr.
143-144) alleging disability since January 9, 2012.
Plaintiff's date last insured is December 31, 2016. The
application was denied initially on May 31, 2012 (Tr. 67-78)
and on reconsideration on July 21, 2012. (Tr. 80-92).
Plaintiff requested an Administrative Hearing. On May 28,
2013, 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. 36-63). The
ALJ issued an unfavorable decision to Plaintiff on June 24,
2013. (Tr. 16-35). The Appeals Council denied Plaintiff's
request for review on September 2, 2014. (Tr. 1-4). Plaintiff
then filed an action in this Court on December 8, 2014. (Tr.
415-417). The Commissioner assented to remand which the Court
ordered on October 19, 2015. (Tr. 419-421).
In the
interim, Plaintiff filed a new application for disability and
was subsequently found disabled beginning June 25, 2013. (Tr.
429). The Appeals Council issued an Order dated December 14,
2015 effectuating the Order of this Court and remanding the
case for hearing by the ALJ. (Tr. 429-432). The Appeals
Council concluded that the subsequent approval finding
disability beginning June 25, 2013 was supported by
substantial evidence and affirmed that decision. Id.
The
Appeals Council directed the ALJ to further consider the
diagnosis of severe Lyme Disease and the opinion of Dr. Gloor
and to rectify certain vocational issues. (Tr. 429-430). On
September 13, 2016, another hearing was held before the ALJ
at which time Plaintiff, Plaintiff's attorney and a VE
appeared. (Tr. 367-388). On November 28, 2016, the ALJ issued
a decision again denying Plaintiff's claims. (Tr.
336-356). On February 3, 2017, Plaintiff filed exceptions to
the ALJ's decision. (Tr. 357-362). The Appeals Council
declined to assume jurisdiction, rendering the ALJ's
decision the final decision of the Commissioner. (Tr.
329-335). A timely appeal was then filed with this Court.
II.
THE PARTIES' POSITIONS
Plaintiff
argues that the ALJ erred in assessing the impacts of his
Lyme Disease and mental impairments and the opinions of
treating sources for such conditions.
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 (1st
Cir. 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 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 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.
1996).
A
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
proceedings. Id.
IV.
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