Spivey v. Apfel

• Decision Date: 02 March 2001
• Docket Number: No. 6:99CV885ORL22JGG.,6:99CV885ORL22JGG.
• Parties: Ruth SPIVEY, Plaintiff, v. Kenneth APFEL, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Middle District of Florida

133 F.Supp.2d 1292

Ruth SPIVEY, Plaintiff, v. Kenneth APFEL, Commissioner of the Social Security Administration, Defendant.

No. 6:99CV885ORL22JGG.

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

March 2, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert Edward McCall, Jr., Law Office of Robert E. McCall, Melbourne, FL, for plaintiff.

Susan Roark Waldron, Patricia A. Willing, U.S. Attorney's Office, Tampa, FL, for defendant.

ORDER

CONWAY, District Judge.

This cause came on for consideration upon the filing of a complaint seeking review of the decision of the Commissioner of Social Security denying Plaintiff's application for a period of disability and disability insurance benefits (Doc. No. 1).

The United States Magistrate Judge has submitted a report recommending that the decision of the Commissioner be reversed and that the case be remanded pursuant to sentence four of 42 U.S.C. § 405(g).

After an independent de novo review of the record in this matter, and noting that no objections were timely filed, the Court agrees entirely with the findings of fact and conclusions of law in the Report and Recommendations.

Therefore, it is ORDERED as follows:

1. The Report and Recommendation filed February 9, 2001 (Doc. No. 22), is ADOPTED and CONFIRMED and made a part of this Order.

2. The decision of the Commissioner is hereby REVERSED, and this case is REMANDED for further proceedings consistent with the Report and Recommendation.

3. The Clerk is directed to enter judgment accordingly, and CLOSE the file.

Report and Recommendation

GLAZEBROOK, United States Magistrate Judge.

Plaintiff Ruby Spivey 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 and disability insurance benefits. See Docket No. 1 (complaint). For the reasons set forth below, the Commissioner's decision should be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

On July 5, 1995, plaintiff Ruby Spivey protectively filed her claim for disability benefits, claiming disability as of March 23, 1994. R. 20, 73. On April 22, 1997, the Honorable Henry U. Snavely, Administrative Law Judge ["ALJ"], held a hearing on Spivey's claim in Melbourne, Florida. R. 32 — 71. Attorney Charles J. Roberts represented Spivey at the hearing. R. 32. The ALJ heard testimony by Spivey, but did not utilize a Vocational Expert.

On November 14, 1997, the ALJ issued his decision that Spivey was not entitled to disability and disability insurance benefits. R. 13. Following his review of the medical and other record evidence, the ALJ found that Spivey could not perform her past relevant work as a an electronic board assembler. R. 21, Finding 6. The ALJ found that Spivey retained the residual functional capacity to perform the physical exertion requirements of work except for lifting more than 10 pounds with both hands. The ALJ found that Spivey could perform the full range of the physical exertional requirements of sedentary work. R. 21, Finding 7. The ALJ applied the Medical-Vocational Guidelines, and concluded that Spivey was not disabled. R. 21, Finding 11.

On May 19, 1999, the Appeals Council denied review. R. 4 — 5. Spivey timely appealed the Appeals Council's decision to deny review to the United States District Court. Docket No. 1. On March 9, 2000, Spivey filed a memorandum of law in support of her appeal of the denial of review. Docket No. 16. On April 25, 2000, the Commissioner filed a memorandum in support of his decision that Spivey was not disabled.¹ Docket No. 19. This Court heard oral argument of the appeal on November 14, 2001. Docket No. 21. The appeal is ripe for determination.

II. THE PARTIES' POSITIONS

Spivey assigns four errors to the Commissioner. First, Spivey claims that the Commissioner improperly discredited Spivey's testimony as to her pain. Second, Spivey claims that the Commissioner improperly weighed the medical conclusions of the treating physicians and medical experts. Third, Spivey claims that the Commissioner failed to assess the effect of her physical limitations through expert testimony. The Commissioner argues that substantial evidence supports his decision to deny disability.

III. THE STANDARD OF REVIEW

A. Affirmance

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).

B. Reversal or Remand

Congress has empowered the district court to reverse the decision of the Commissioner without remanding the cause. 42. U.S.C. § 405(g) (Sentence Four). The district court will reverse a Commissioner's decision on plenary review 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 of 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, non-competitive, 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 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, 99 F.3d at 1090-92; Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir.1988); Smith v. Bowen, 792 F.2d 1547, 1550 (11th Cir.1986); Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.1986); see also Keeton v. Dept. of Health and Human Serv., 21 F.3d 1064, 1068 (11th Cir.1994).

A 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. Jackson, 99 F.3d at 1095. With a sentence-six remand, the parties must return to the district court after remand to file modified findings of fact. Jackson, 99 F.3d at 1095....