United States District Court, D. Rhode Island
STACEY S.
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
Supplemental Security Income (“SSI”) under the
Social Security Act (the “Act”), 42 U.S.C. §
405(g). Plaintiff filed her Complaint on May 25, 2018 seeking
to reverse the Decision of the Commissioner. On January 11,
2019, Plaintiff filed a Motion for Reversal of the Disability
Determination of the Commissioner of Social Security. (ECF
Doc. No. 13). On March 12, 2019, the Commissioner filed a
Motion for an Order Affirming the Decision of the
Commissioner. (ECF Doc. No. 16). Plaintiff filed a Reply on
April 19, 2019. (ECF Doc. No. 19).
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 for Reversal (ECF
Doc. No. 13) be DENIED and that the Commissioner's Motion
to Affirm (ECF Doc. No. 16) be GRANTED.
I.
PROCEDURAL HISTORY
Plaintiff
filed an application for SSI on May 1, 2015 alleging
disability since January 1, 2014. (Tr. 163-172). The
application was denied initially on October 16, 2015 (Tr.
81-91) and on reconsideration on April 29, 2016 (Tr. 66-80)
and June 29, 2016. (Tr. 93-108). Plaintiff requested an
Administrative Hearing. On May 24, 2017, a hearing was held
before Administrative Law Judge Tanya J. Garrian (the
“ALJ”) at which time Plaintiff, represented by
counsel, and a Vocational Expert (“VE”) appeared
and testified. (Tr. 32-56). The ALJ issued an unfavorable
decision to Plaintiff on July 26, 2017. (Tr. 12-31). The
Appeals Council denied Plaintiff's request for review on
March 29, 2018. (Tr. 1-6). 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 failed to properly evaluate the medical
opinion evidence, made an unsupported Step 2 determination
that her mental impairments were not severe and made an
erroneous credibility assessment.
The
Commissioner disputes Plaintiff's claims and contends
that the ALJ's Step 5 denial is 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
HHS, 955 F.2d 765, 769 (1st Cir. 1991)
(per curiam); Rodriguez v. Sec'y of
HHS, 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 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).
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.
THE LAW
The law
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 ...