United States District Court, S.D. Ohio, Western Division
ANN M. DECORREVONT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States District Judge.
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).
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).
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).
The Commissioner's motion for voluntary remand (Doc.
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
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.
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
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
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
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)).
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.
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.
The Commissioner's motion to strike (Doc. 11)
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.
Legal Framework for Disability Determinations
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),
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
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
4) If the claimant's impairment does not prevent him or
her from doing his or her past relevant work, the claimant is
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).
The Administrative Law Judge's Findings
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 ...