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Decorrevont v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division

January 6, 2020

ANN M. DECORREVONT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Dlott, J.

          ORDER AND REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States District Judge.

         This matter is before the Court on defendant's motion for voluntary remand (Doc. 6), plaintiffs response in opposition (Doc. 7), and defendant's reply in support of the motion (Doc. 10). The matter is also before the Court on the Commissioner's motion to strike plaintiffs statement of specific errors and, in the alternative, response to plaintiffs statement of errors (Doc. 11), and plaintiffs reply in support of her statement of errors (Doc. 12).

         I. Procedural history

         Plaintiff protectively filed an application for disability insurance benefits (DIB) in September 2013 and an application for supplemental security income in February 2014, alleging disability beginning on January 18, 2013. The claims were denied initially and upon reconsideration. Administrative Law Judge (ALJ) Kevin J. Detherage held a hearing on plaintiffs claim on April 27, 2016. (Tr. 40-92). Plaintiff, who was represented by counsel, and a vocational expert (VE) appeared and testified at the hearing. The ALJ issued a decision denying plaintiffs claim for benefits on August 18, 2016. (Tr. 21-34). The Appeals Council upheld the ALJ's decision on August 25, 2017. (Tr. 1-8). Plaintiff appealed the decision to this Court on October 11, 2017. See No. L17-cv-00683. On March 28, 2018, this Court granted the parties' joint motion for remand of the case for further administrative proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g). (Tr. 1316-22). The matter was remanded to an ALJ for further proceedings, including the taking of additional evidence, a de novo hearing, and complete reevaluation of plaintiff s claim from the beginning of the sequential evaluation, including reevaluation of the weight given to the treating source opinion and plaintiffs subjective complaints. (Tr. 1316).

         A second ALJ hearing was held on remand before ALJ William Diggs on November 28, 2018. (Tr. 1247-77). ALJ Diggs issued a decision denying plaintiffs claim for benefits on December 17, 2018. (Tr. 1220-39). According to the Commissioner, the Appeals Council denied review. (Doc. 6 at 1). Plaintiff appealed the decision to this Court on February 22, 2019. On May 14, 2019, the Commissioner filed the unilateral motion for voluntary remand under sentence four of 42 U.S.C. § 405(g). (Doc. 6).

         II. The Commissioner's motion for voluntary remand (Doc. 6)

         The Commissioner requests that the Court enter an order and judgment reversing the final decision of the Commissioner of Social Security pursuant to Sentence Four of 42 U.S.C. § 405(g) and remanding this matter to the Commissioner for further administrative proceedings and a new decision. The Commissioner claims that after he reviewed the evidence of record, he determined that the final decision contains an error. Specifically, the ALJ did not include in the hypothetical to the VE a limitation that the ALJ found was supported and which was included in the RFC: i.e., "occasional contact with supervisors, coworkers and the public." (Doc. 6 at 1, citing Tr. 1228, 1270-75). The Commissioner concedes that due to the error, the ALJ's step five finding that plaintiff could perform a significant number of jobs is not supported by substantial evidence. The Commissioner contends that on remand, the ALJ must obtain testimony from a VE to resolve whether an individual with plaintiff s job limitations could perform a significant number of jobs in the national economy, which is a factual issue. The Commissioner argues that remand is the appropriate remedy because proof of disability is not overwhelming, and neither is this a case where proof of disability is strong and contrary evidence is lacking. The Commissioner has not cited any evidence from the record in support of the motion to remand.

         Plaintiff opposes the motion for voluntary remand and seeks a determination on the merits of her appeal. (Doc. 7). Plaintiff argues that the ALJ committed several errors which warrant reversal of the Commissioner's decision. First, plaintiff agrees with the Commissioner that the ALJ erred by omitting "occasional" contact with supervisors, co-workers, and the public from the hypothetical to the VE. In addition, plaintiff argues that the ALJ erred by finding that she is not disabled by "significant" rheumatoid arthritis and symptoms of "significant" fatigue, which preclude her from performing sustained work for 40 hours per week in accordance with Social Security Ruling 96-8p. Further, plaintiff contends that the ALJ erred at step five of the sequential evaluation by relying on VE testimony about job data that is outdated or jobs that include frequent hand use for manipulation, which she is unable to perform. Plaintiff argues that remand and reversal for an immediate award of benefits is the appropriate remedy because the Commissioner has unnecessarily prolonged the resolution of her claim for benefits. Plaintiff notes that she filed her DIB and SSI applications over five years ago; the first ALJ hearing was held in April 2016; the Commissioner did not defend the first administrative decision on the merits but sought a voluntarily remand, which plaintiff agreed to; and the Commissioner seeks yet another remand without a decision on the merits of plaintiff s claim. Plaintiff contends there is no dispute that she suffers from severe fibromyalgia, and her treating physician has repeatedly opined that she suffers from disabling rheumatological conditions. Plaintiff alleges the treating physician's medical opinion is well-supported by the treatment records, and the ALJ has not identified any credible, contradictory medical evidence.

         Shortly after plaintiff filed her response to the motion for remand, she filed her statement of specific errors. (Doc. 8). Defendant filed a reply in support of the unilateral motion to remand (Doc. 10) and a motion to strike plaintiffs statement of errors and, in the alternative, a response to plaintiffs statement of specific errors (Doc. 11). The Commissioner acknowledges the case has been pending since 2013, but the Commissioner contends this is not a sufficient reason in and of itself to justify a remand for an immediate award of benefits absent strong proof of disability. (Doc. 10 at 3). The Commissioner relies on two decisions from this Court to support his position: Scott v. Comm'r of Soc. Sec., No. 1:16-cv-697, 2017 WL 1052595, at *2 (S.D. Ohio Mar. 20, 2017) (Report and Recommendation) (Litkovitz, M.J.), adopted, 2017 WL 1410817 (S.D. Ohio Apr. 19, 2017) (Dlott, J.), and Parr v. Comm'r, No. 1:15-cv-314, 2016 WL 4064044, at *6 (S.D. Ohio July 29, 2016) (Report and Recommendation) (Litkovitz, M.J.), adopted, 2017 WL 1055151 (S.D. Ohio Mar. 21, 2017) (Barrett, J.). In both cases, the Court found that the length of time a case has been pending does not, standing alone, warrant an immediate award of benefits. However, the cited cases do not otherwise support the Commissioner's position here.

         First, the Court in Parr denied the Commissioner's motion for voluntary remand pending briefing on the merits of the plaintiffs claim for benefits because resolution of the claim had already been delayed. Parr 2016 WL 4064044, at *6. The undersigned recommended to the district judge that the Commissioner's motion be denied for the following reasons:

Given the length of time that plaintiffs disability applications have been pending and the fact that this Court previously remanded this case once before, it is appropriate to consider the merits of plaintiffs appeal of the Commissioner's decision denying her applications for DIB and SSI. Nearly seven years have elapsed since the filing of plaintiff s disability applications. Further delay in the resolution of plaintiff s claim for benefits would be unjust. The proper and just course is for the Court to consider the merits of plaintiffs appeal pursuant to Sentence Four of § 405(g) and deny the Commissioner's motion for voluntary remand.

Id.[1]

         Second, the Court in Scott initially denied the Commissioner's motion for voluntary remand and ordered briefing on the merits of the plaintiffs appeal. Scott v. Comm'r of Soc. Sec., No. 1:16-cv-697, 2017 WL 89026, at *2-3 (S.D. Ohio Jan. 10, 2017) (Litkovitz, M.J.). In Scott, as in this case, the Commissioner conceded that the ALJ's decision was "flawed" and could not be defended; however, the Commissioner alleged that it was "not appropriate for th[e] Court to reverse the administrative decision and award benefits because 'not all essential factual issues ha[d] been resolved.'" Id. at *2. The Commissioner had addressed only one of the plaintiffs several physical impairments and had not discussed the plaintiffs severe mental impairments. Id. The Court found that 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." The Court therefore denied the Commissioner's motion for a voluntarily remand. Id. The Court ordered the parties to brief the only issue before the Court: "whether th[e] matter should be reversed and remanded for rehearing or reversed for an immediate award of benefits [under] 42 U.S.C. § 405(g)," which is generally appropriate "only if all essential factual issues have been resolved and the record adequately establishes a plaintiffs entitlement to benefits." Id. at *3 (quoting Faucher v. Sec. of H.H.S, 17 F.3d 171, 176 (6th Cir. 1994)).

         The Court found after considering the briefs on the merits that the nearly six years that the plaintiffs application for benefits had been pending did not suffice to justify a remand for an immediate award of benefits "absent strong proof that plaintiff was limited to sedentary work" as of the alleged disability onset date. Scott, 2017 WL 1052595, at *7. The Court concluded that such proof was lacking and factual questions remained that the Commissioner had to determine "in the first instance." Id. Only after considering the record evidence did the Court decide that the proper remedy was to remand the claim for further administrative proceedings.

         Here, the Commissioner asks the Court to remand this matter based only on his representation that the ALJ committed a single error at step five of the sequential evaluation, thereby leaving factual issues to be resolved. (Docs. 5, 10). The Commissioner asks the Court to remand the case to the agency so that the ALJ can correct the error by eliciting additional VE testimony and determining whether there are a significant number of jobs in the national economy that an individual with plaintiff s limitations can perform. (Doc. 10 at 5). Plaintiff counters that the ALJ committed additional errors related to (1) the functional limitations imposed by her severe impairments, (2) the evaluation of the treating physician's opinion, (3) the evaluation of her subjective complaints, and (4) the reliability of the VE's testimony. (Docs. 7, 8). The Court must review the record to consider these alleged errors and determine whether proof of disability is overwhelming, or otherwise strong and opposing evidence is lacking in substance. Faucher v. Sec'y of HHS, 17 F.3d 171, 176 (6th Cir. 1994); see also Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 1994). Accordingly, the Commissioner's motion for voluntary remand (Doc. 6) should be denied.

         III. The Commissioner's motion to strike (Doc. 11)

         If his motion for voluntary remand is denied, then the Commissioner asks the Court to strike the statement of errors as "premature" because plaintiff filed it before the Court ruled on the motion to remand. Plaintiffs claim for disability benefits has been pending for over five years. Before she filed her statement of errors, the Commissioner had not yet addressed the merits of plaintiff s claim on appeal and instead had twice moved that her claim be remanded for further administrative proceedings. Plaintiffs claim is now ripe for review on the merits. The Court has before it plaintiffs statement of errors (Doc. 8), the Commissioner's response to the statement of errors (Doc. 11), and plaintiffs reply in support of her statement of errors (Doc. 12). Striking the statement of errors at this point would prejudice plaintiff by further delaying resolution of her claim for disability benefits. On the other hand, the Commissioner does not allege that he has suffered any prejudice as a result of plaintiff s filing. The Court therefore declines to strike plaintiffs statement of errors.

         IV. Analysis

         A. Legal Framework for Disability Determinations

         To quality for disability benefits, a claimant must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A) (DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).

         Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or mental impairment i.e., an impairment that significantly limits his or her physical or mental ability to do basic work activities - the claimant is not disabled.
3) If the claimant has a severe impairments) that meets or equals one of the listings in Appendix 1 to Subpart P of the regulations and meets the duration requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not disabled. If the claimant cannot make an adjustment to other work, the claimant is disabled.

Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).

         B. The Administrative Law Judge's Findings

         The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:

1. The [plaintiff] meets the insured status requirements of the Social Security Act through September 30, 2019.
2. The [plaintiff] has not engaged in substantial gainful activity since January 18, 2013, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The [plaintiff] has the following severe impairments: inflammatory arthritis, fibromyalgia, obesity, and an affective disorder ...

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