United States District Court, S.D. Ohio, Western Division
CRYSTAL F. SCOTT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on defendant's motion for
voluntary remand (Doc. 10), plaintiffs memorandum in
opposition (Doc. 11), and defendant's reply in support of
the motion (Doc. 12).
filed an application for disability insurance benefits (DIB)
in May 2011, alleging disability beginning on June 30, 2010.
Plaintiffs insured status for DIB expired on December 31,
2015. Administrative Law Judge (ALJ) Irma Flottman originally
held a hearing on plaintiffs claim on February 14, 2013, and
issued a decision denying plaintiffs claim for benefits on
March 8, 2013. (Tr. 199-218). Plaintiff appealed ALJ
Flottman's decision to the Appeals Council. The Appeals
Council issued an order on June 9, 2014, remanding the case
to an ALJ for resolution of the following issues: (1) further
evaluation of the treating source opinion of Dr. Jonathan
Rosenthal, M.D., plaintiffs treating psychiatrist, and (2)
further development and evaluation of the evidence related to
plaintiffs arthritis of the right leg and any resulting
work-related limitations. (Tr. 219-223). The Appeals Council
found that ALJ Flottman had not adequately evaluated Dr.
Rosenthal's treating source opinion and the limitations
the treating psychiatrist assessed. (Tr. 220). Instead, the
ALJ had selectively discounted limitations assessed by Dr.
Rosenthal for reasons that were not supported by the record,
and the ALJ had failed to specifically address the
limitations assessed by Dr. Rosenthal other than plaintiffs
alleged inability to function independently. (Tr. 220-21).
The Appeals Council stated that the ALJ found this limitation
was not supported by the record despite plaintiffs testimony
of limitations in this area and the report of consultative
examining psychologist Dr. Nancy Schmidtgoessling, Ph.D., who
opined plaintiff would need assistance in several areas. (Tr.
221). Further, the Appeals Council found that while the ALJ
cited a May 23, 2012 x-ray that "revealed arthritic
changes, marked narrowing of the joint space, and
hypertrophic osteophytes in the right knee, " the ALJ
did not assess the severity of plaintiff s right knee
impairment, for which she required treatment. (Id.).
The Appeals Council therefore ordered the ALJ on remand to do
the following: (1) obtain additional evidence concerning
plaintiffs impairments including, if warranted and available,
consultative mental status examinations and medical source
statements about what plaintiff could still do despite her
impairments in order "to complete the administrative
record in accordance with the regulatory standards regarding
consultative examinations and existing medical evidence (20
CFR 404.1512-1513)"; (2) further consider plaintiffs
maximum residual functional capacity [RFC] during the entire
period at issue with supporting rationale and specific
references to evidence in the record supporting the assessed
limitations, and evaluate the treating source opinion of Dr.
Rosenthal as part of that analysis; and (3) obtain
supplemental evidence from a VE if warranted. (Tr. 221-22).
different ALJ, Gregory Kenyon, held a hearing on remand on
December 4, 2014. (Tr. 107-138). Following the ALJ hearing,
ALJ Kenyon issued a written decision on January 30, 2015,
finding plaintiff was not disabled during the relevant time
period and denying her claim for disability benefits. (Tr.
82-106). Plaintiff filed a request for review of the
ALJ's decision with the Appeals Council on March 30,
2015. (Tr. 76-81). In support of the appeal, plaintiff
submitted additional medical records, some of which predated
the ALJ's written decision (Tr. 768-826) and others which
post-dated the written decision (Tr. 8-68,
72-74). The Appeals Council issued a notice on May
23, 2016, denying plaintiffs request for review. (Tr. 1-7).
The Appeals Counsel stated that it had "looked at"
61 pages of records that plaintiff had submitted but found
the "new information" did not affect the decision
as to whether plaintiff was disabled on or before January 30,
2015, the date of the ALJ's written decision, because the
information was "about a later time." (Tr. 2).
29, 2016, plaintiff filed her complaint in this Court
challenging the Commissioner's final decision denying her
application for DIB. (Doc. 3). Plaintiff filed her statement
of errors on October 31, 2016. (Doc. 9). On December 12,
2016, the Commissioner filed a unilateral motion for
voluntary remand under sentence four of 42 U.S.C. §
405(g). (Doc. 10). The Commissioner requests that the Court
enter an order and judgment reversing the final decision of
the Commissioner of Social Security pursuant to the fourth
sentence of 42 U.S.C. § 405(g) and remand this matter to
the Commissioner for further administrative proceedings and a
new decision. The Commissioner states that upon receipt of
the Court's order, the Appeals Council will remand the
matter to an ALJ for further proceedings. The Commissioner
does not set forth the reasons for seeking a voluntary remand
in the motion.
opposes the motion for voluntary remand and seeks a
determination on the merits of her appeal. (Doc. 11).
Plaintiff contends that a remand for further consideration is
not warranted because the proof of disability is
overwhelming. Plaintiff alleges she is clearly entitled to
benefits based solely on her physical impairments under Rule
201.12 of the medical-vocational guidelines for sedentary
work. (Id. at 3). Plaintiff alleges that the
Commissioner should not be given the opportunity to conduct
further administrative proceedings given that her claim for
disability benefits has been pending over 5 Vi years
and has already been the subject of two ALJ hearings and two
Appeals Council reviews.
reply brief, the Commissioner sets forth her reasons for
seeking a voluntary remand. (Doc. 12). The Commissioner
concedes that the ALJ's decision "was flawed and
cannot be defended"; however, the Commissioner alleges
it is not appropriate for this Court to reverse the
administrative decision and award benefits because "not
all essential factual issues have been resolved."
(Id. at 1-2). The only medical records the
Commissioner relies on to support her position are a two-page
discharge summary from plaintiffs June 2015 right knee
replacement (Tr. 15-16) and state agency reviewing physician
assessments from 2011 finding plaintiff capable of a range of
light work. (Id. at 2). The Commissioner alleges
this evidence is "strong contrary evidence" that
plaintiff was not disabled as of June 2010, the alleged onset
date. (Id.). However, the Commissioner does not
address the impact of any physical impairments other than
plaintiffs knee impairment, and neither does she discuss
plaintiffs severe mental impairments. The Commissioner's
truncated argument for remand, supported by sparse references
to medical exhibits from a record that covers over five
years, does not establish that a remand for further
administrative proceedings, as opposed to a remand and
reversal for an outright award of benefits, is the
appropriate outcome here. Therefore, the Commissioner's
motion for a voluntary remand is DENIED.
Commissioner concedes that the ALJ's decision cannot be
defended, the only issue in this appeal is whether this
matter should be reversed and remanded for rehearing or
reversed for an immediate award of benefits. 42 U.S.C. §
405(g); Melkonycm v. Sullivan, 501 U.S. 89, 100
(1991). Generally, benefits may be awarded immediately
"only if all essential factual issues have been resolved
and the record adequately establishes a plaintiffs
entitlement to benefits." Faucher v. Sec. of
H.H.S, 17 F.3d 171, 176 (6th Cir. 1994); see also
Abbott v. Sullivan, 905 F.2d 918, 927 (6th Cir. 1990);
Varley v. Sec. of H.H.S, 820 F.2d 777, 782 (6th Cir.
1987). The Court may award benefits where the proof of
disability is strong and opposing evidence is lacking in
substance, so that remand would merely involve the
presentation of cumulative evidence, or where the proof of
disability is overwhelming, Faucher, 17 F.3d at 176;
see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th
the Commissioner is ordered to file a brief addressing this
issue by February 1, 2017. Plaintiff is ordered to file a
reply brief by February 15, 2017.
 The Appeals Council referred to seven
pages of records from Dr. Jerry Magone, M.D., dated April 20,
2014, as part of the information pertaining to the period
post-dating the ALJ's decision that it reviewed. (Tr. 2).
These records ...