Baguer v. Apfel

• Citation: 65 F.Supp.2d 1345
• Decision Date: 17 September 1999
• Docket Number: No. 98-849-CIV-ORL-22C.,98-849-CIV-ORL-22C.
• Parties: Aida BAGUER, Plaintiff, v. Kenneth APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Middle District of Florida

65 F.Supp.2d 1345

Aida BAGUER, Plaintiff, v. Kenneth APFEL, Commissioner of Social Security, Defendant.

No. 98-849-CIV-ORL-22C.

United States District Court, M.D. Florida, Orlando Division.

September 17, 1999.

Juan Jose Rosario, Law Office of Juan J. Rosario, Winter Park, FL, for Plaintiff.

Roberta M. Bahnsen, Randall Gold, U.S. Atty's Office, Middle District of Florida, Orlando, FL, Mary Ann Sloan, General Counsel's Office, Social Security Administration, Atlanta, GA, for Defendants.

ORDER

GLAZEBROOK, United States Magistrate Judge.

Plaintiff Aida Baguer ["Baguer"] appeals to the district court from a final decision of the Commissioner of Social Security [the "Commissioner"] denying her application for a period of disability, disability insurance benefits, and supplemental security income. See Docket No. 1. The matter is before the Court on consent pursuant to 28 U.S.C. § 636(c)(1). For the reasons set forth below, the Commissioner's decision is REVERSED.

I. PROCEDURAL HISTORY

On May 26, 1995, Baguer filed her claim for disability and SSI benefits, claiming disability as of December 12, 1991. R. 100-04. Baguer last met the disability insured status requirements of Title II on December 31, 1996. R. 115. On January 9, 1999, the Honorable James R. Ciaravino, Administrative Law Judge ["ALJ"], held a 47-minute hearing on Baguer's claim. R. 51-98. Baguer was represented by attorney Chadwick Lawrence at the hearing. R. 51. The ALJ heard testimony by Baguer.

On June 20, 1997, the ALJ issued his decision that Baguer was not entitled to disability, disability insurance benefits, or SSI under sections 216(i) and 223 of the Social Security Act. R. 16-26. Following his review of the psychiatric, medical and other record evidence, the ALJ found that Baguer retained the residual functional capacity to perform some work-related activities, except for work involving lifting and carrying more than fifteen pounds. R. 26, Finding 5. The ALJ also found that Baguer had to work by herself, and had to be responsible for her own individual work assignments because of her nonexertional limitations. R. 26, Finding 5. With these restrictions, the ALJ found that Baguer could return to her past relevant work as an assembly line worker. R. 26, Finding 5.

On June 19, 1998, the Appeals Council denied review. R. 6. On July 24, 1998, Baguer timely appealed the Appeals Council's June 19, 1998 decision to deny review to the United States District Court. Docket No. 1. On July 31, 1998 — after the first denial of review and while the appeal was pending in the United States District Court — the Appeals Council considered additional evidence that Baguer had been hospitalized for depression with psychosis from April 30, 1998 to May 2, 1998.¹ R. 4-5, 9-10. The Appeals Council concluded that Baguer's recent hospitalization for Psychosis Not Otherwise Specified with Depression and Anxiety did not pertain to the period under consideration because it occurred well after the date of the hearing decision (June 20, 1997), and that Baguer had not shown any psychiatric limitations persisting after May 2, 1998. R. 4, 9.

The Appeals Council did note that Baguer had had similar psychotic episodes in the past, but found them to have been infrequent and responsive to medication. R. 4-5, 9-10. The Appeals Council therefore concluded that the new evidence of psychosis provided no basis to change the ALJ's decision, and that the ALJ's findings were not contrary to the weight of the evidence of record at the time of Appeals Council review. R. 4-5. The Appeals Council therefore again denied review on July 31, 1998. R. 4-5.

On October 23, 1998, the Commissioner found that Baguer was in fact disabled as of July 23, 1998, the date she had protectively filed a new application, and that Baguer indeed was entitled to supplemental security income benefits after that date. Docket No. 15, Appendix 1. The Commissioner found that Baguer had been disabled beginning on July 23, 1998 — approximately eight days before the Appeals Council denied review.² In other words, Baguer was disabled on July 31, 1998 — the date that the Appeals Council denied review.

On February 11, 1999, Baguer filed a memorandum of law in support of her appeal of the denial of review. Docket No. 15. On April 19, 1999, the Commissioner filed a memorandum in support of his decision determining that she was not disabled. Docket No. 20. The Commissioner's brief neither mentioned nor discussed his determination that Baguer was disabled and entitled to SSI benefits on the day that the Appeals Council denied review.³ The appeal is ripe for determination.

II. THE PARTIES' POSITIONS

Baguer contends that the Commissioner failed to properly consider the totality of her combined mental and physical impairments (including information in the medical report of William W. Austin, Psy. D.), and also failed to properly credit Baguer's testimony, when he found that she did meet Listing 12.06 for Anxiety Related Disorder, and when he further found that she retained the ability to perform her past work as an assembly line worker. Docket No. 15 at 3-17. Baguer also argues that the Commissioner failed to develop a full and fair record because Baguer was unable to communicate in English. Docket No. 15 at 17. The Commissioner argues that Baguer failed to meet her burden of proving that her combined psychiatric and spinal conditions met any Listing, and that her combination of conditions prevented her from returning to her past work.

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. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995), citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir.1982) and Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); accord, Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir.1991).

Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the evidence preponderates against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n. 3 (11th Cir.1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir.1991). The district court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560; accord, Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir.1992) (court must scrutinize the entire record to determine reasonableness of factual findings); Parker v. Bowen, 793 F.2d 1177 (11th Cir.1986) (court also must consider evidence detracting from evidence on which Commissioner relied).

The district court will reverse a Commissioner's decision on plenary review, however, if the decision applies incorrect law, or if the decision fails to provide the district court with sufficient reasoning to determine that the Commissioner properly applied the law. Keeton v. Department Health and Human Services, 21 F.3d 1064, 1066 (11th Cir.1994); accord Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir.1991); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990). 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. Bowen v. Heckler, 748 F.2d 629, 631, 636-37 (11th Cir.1984).

The district 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. Jackson v. Chater, 99 F.3d 1086, 1089-92, 1095, 1098 (11th Cir.1996). To remand under sentence four, the district 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. Jackson, 99 F.3d at 1090-91 (remand appropriate where ALJ failed to develop a full and fair record of claimant's residual functional capacity); 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 district court cannot discern the basis for the Commissioner's decision, a sentence-four remand may be appropriate to allow him to explain the basis for his decision. Falcon v. Heckler, 732 F.2d 827, 829-30 (11th Cir.1984) (remand was appropriate to allow ALJ to explain his basis for determining that claimant's depression did not significantly affect her ability to work) (treating psychologist acknowledged that claimant had improved in response to treatment and could work in a supportive, noncompetitive, tailor-made work environment). 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); Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir. 1984) (ALJ should consider on remand the need for orthopedic evaluation). After a sentence-four remand, the district court enters a final and appealable judgment immediately, and then loses jurisdiction. Jackson, 99 F.3d at 1089, 1095.

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...