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 August 3, 2018
seeking to reverse the Decision of the Commissioner. On
January 11, 2019, Plaintiff filed a Motion to Remand or
Reverse the Decision of the Commissioner. (ECF Doc. No. 11).
On February 8, 2019, the Commissioner filed a Motion for an
Order Affirming the Commissioner's Decision. (ECF Doc.
No. 12). On February 28, 2019, Plaintiff filed his Reply.
(ECF Doc. No. 14).
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 Remand (ECF Doc.
No. 11) be DENIED and that the Commissioner's Motion to
Affirm (ECF Doc. No. 12) be GRANTED.
filed an application for DIB on January 8, 2016 (Tr. 154-160)
alleging disability since December 22, 2015. The application
was denied initially on March 16, 2016 (Tr. 71-78) and on
reconsideration on November 29, 2016. (Tr. 80-91). Plaintiff
requested an Administrative Hearing. On October 2, 2017, a
hearing was held before Administrative Law Judge Gerald
Resnick (the “ALJ”) at which time Plaintiff,
represented by counsel, and a Vocational Expert
(“VE”) appeared and testified. (Tr. 38-58). The
ALJ issued an unfavorable decision to Plaintiff on November
16, 2017. (Tr. 12-37). The Appeals Council denied
Plaintiff's request for review on May 8, 2018. (Tr. 4-8).
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 the assessment of his residual
functional capacity and improperly addressed his subjective
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
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).
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 (1stCir. 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.