ADEMAKINWA v. COMMISSIONER OF SOCIAL SECURITY

Filing 38

MEMORANDUM OPINION by Magistrate Judge Deborah A. Robinson on 3/19/10: denying Defendants Motion for Entry of Judgment with Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) (Document No. 30) and granting Plaintiffs Motion for an Order Reversing the Decision Below and Awarding Benefits (Document No. 32). (lcdar3)

UNITED STATES DISTRICT COURT F O R THE DISTRICT OF COLUMBIA VALERIE P. ADEMAKINWA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social S e c u rity Administration, Defendant. Civil Action No. 07-2162 DAR

MEMORANDUM OPINION P e n d in g for determination by the undersigned United Magistrate Judge are (1) D e fe n d a n t's Motion for Entry of Judgment with Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) ("Defendant's Motion for Sentence Four Remand") (Document No. 30), and (2) P la in tiff's Motion for an Order Reversing the Decision Below and Awarding Benefits (" P la in tiff's Motion for Award of Benefits") (Document No. 32). Upon consideration of the m o tio n s , the memoranda in support thereof and in opposition thereto, and the entire record h e re in , Defendant's motion will be denied, and Plaintiff's motion will be granted.

BACK G RO UND O n April 28, 2004, Plaintiff applied for Supplemental Security Income (SSI) disability b e n e fits , on the grounds that "[a]rthritis, bronchitis, depression, [and an] ulcer" limited her ability to work. Administrative Record ("R.") at 17, 68. On November 4, 2004, Plaintiff's initial a p p lic a tio n for SSI benefits was denied. R. at 17, 36-39. Plaintiff's request for reconsideration a ls o was denied. R. at 41-46. Thereafter, Plaintiff filed a timely request for a hearing before an

Ademakinwa v. Commissioner, Social Security Administration A d m in is tra tiv e Law Judge (ALJ). R. at 17, 47-48. O n June 22, 2005, Plaintiff filed her Request For Review of Hearing Decision. R. at 17, 4 7 -4 8 . As a basis for review, Plaintiff asserted that "[f]ull consideration was not given to [her] m a jo r depression and arthritis. R. at 47. An oral hearing was conducted by the ALJ on January 1 0 , 2007, at which Plaintiff, represented by counsel, and a vocational expert appeared and te s tifie d . R. at 17, 758-797. In his May 3, 2007 Decision, the presiding ALJ held that Plaintiff w a s not disabled as defined in the Social Security Act ("Act") at any time from January 15, 2004 to the date of the decision, and therefore was not entitled to supplemental security income

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b e n e fits . R. at 17-29. The ALJ found that while Plaintiff "does not retain the capacity to perform [h e r] past relevant work[,]" "there are jobs that exist in significant number[s] in the national e c o n o m y that [Plaintiff] can perform" Id.1 Upon the Appeal Counsel's denial of Plaintiff's re q u e s t for review, the ALJ's decision became the "final decision of the Commissioner." R. at 6. O n November 30, 2007, Plaintiff, who was then proceeding pro se, filed her Complaint fo r Reversal of the Secretary's Final Decision (Document No. 1). Defendant moved for an order a ffirm in g the decision of the Commissioner to deny Plaintiff SSI disability benefits. See D e fe n d a n t's Motion for Judgment of Affirmance (Document No. 14). Thereafter, counsel was a p p o in te d to represent Plaintiff. See Notice of Appearance (Document No. 22). Through her c o u n s e l, Plaintiff opposed Defendant's motion for judgment of affirmance, and moved for an o rd e r reversing the decision and remanding the case "for a re-evaluation of whether jobs exist in s ign ific a n t numbers in the national economy that Plaintiff can perform." Plaintiff's Motion for R e v e rs a l and Opposition to Defendant's Motion for Judgment of Affirmance (Document No. 24).
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The ALJ relied on the testimony of the VE in identifying three examples of occupations which Plaintiff is capable of p e r fo r m i n g given her residual functional capacity, age, education and degree of work experience. R. at 28.

Ademakinwa v. Commissioner, Social Security Administration In his third request for an extension of time in which to file his opposition to Plaintiff's m o tio n , Defendant represented that "[t]he agency attorney assisting undersigned counsel on this c a s e has advised that he has identified certain issues that he needs to discuss with the Agency's A p p e a ls Counsel, in order to determine how the agency should proceed as to those issues. Such

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d is c u s s io n s may or may not lead to a request for a remand of this case to the agency." Motion for F u rth e r, Two-Week Extension of Time to File Defendant's Opposition to Plaintiff's Motion for R e m a n d and to File Defendant's Reply Memorandum in Support of His Motion for Judgment of A ffirm a n c e (Document No. 28) at 1. After the third motion for extension was granted, Defendant a b a n d o n e d his initial request for an order affirming the decision of the Commissioner, and in s te a d , asked that the court enter a judgment reversing the final decision and remanding the case fo r further administrative proceedings. See Defendant's Motion for Sentence Four Remand at 1.2 D e fe n d a n t advised that on remand, "the ALJ will be instructed (1) to evaluate the severity of p la in tiff's mental impairments, with and without the effects of polysubstance abuse; (2) ree v a lu a te the opinion evidence and plaintiff's subjective complaints, citing supporting evidence fo r the conclusions reached; and (3) obtain supplemental vocational expert testimony, as n e e d e d ." Id.3 P la in tiff opposed the motion, and moved for an order reversing the decision of the C o m m is s io n e r. Plaintiff's Motion for Award of Benefits at 1; see also Plaintiff's Memorandum o f Points and Authorities in Response to Defendant's Motion for Judgment with Remand and in

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No memorandum of points and authorities accompanies the one­page motion. See LCvR 7(a).

Defendant's filing of the Motion for Sentence Four Remand rendered both his initial M o t i o n for Judgment of A ffi r m a n c e (Document No. 14), and Plaintiff's M o t i o n for Reversal (Document No. 24), moot.

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Ademakinwa v. Commissioner, Social Security Administration

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S u p p o rt of Plaintiff's Motion for an Order Reversing the Decision Below and Awarding Benefits (" P la in tiff's Memorandum") (Document No. 32-1). Plaintiff submits that the determination by th e ALJ that she does not "retain the capacity to perform her past relevant work[]" shifted the b u rd e n to the Commissioner to establish that "other jobs exist in significant numbers in the n a tio n a l economy" which she can perform, "given her medical limitations, age, education, and w o rk experience." Plaintiff's Memorandum at 4. Plaintiff contends that the Commissioner "did n o t and cannot carry this burden" "because a sufficient number of jobs do not exist in the e c o n o m y that Plaintiff is capable of performing." Id. at 5.4 While Plaintiff submits that an order re v e rs in g the decision below and awarding benefits is the appropriate remedy, she asks that any re m a n d be limited to re-evaluation of whether jobs which Plaintiff can perform exist in s ign ific a n t numbers in the national economy. Id. at 6-8. D e fe n d a n t, in his opposition to Plaintiff's motion for award of benefits and reply in fu rth e r support of his motion for a sentence four remand, concedes that there are "problems with th e ALJ's decision . . . [which] [lie] in his evaluation of plaintiff's [residual functional capacity]." Defendant's Memorandum in Opposition to Plaintiff's Motion for an Award of Benefits and R e p ly Memorandum in Support of Defendant's Motion for Judgement of Affirmance (" D e fe n d a n t's Opposition") (Document No. 34) at 12. Defendant maintains that a remand "for a d e novo evaluation of the evidence and a new decision" "could lead to a different RFC and a

Plaintiff challenges the vocational expert's utilization of the Dictionary of Occupational Titles ("DOT"), rather than t h e "more updated system called O*NET" released by the Department of Labor. Id. at 4-5, 7-8. Because the undersigned knows of n o authority which permits a district court to require that a vocational expert utilize a particular source of information, none of the fi n d i n g s set forth herein encompass any such determination.

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Ademakinwa v. Commissioner, Social Security Administration

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d iffe re n t result." Id.5 Defendant further contends that sentence four remand, rather than reversal, is the proper remedy because the "evidence of record is not so clear as to mandate the payment of b e n e fits ." Id at 5. Plaintiff, in her reply, contends that the Commissioner should instead be directed to grant P la in tiff benefits because the collective record demonstrates "uncontroverted" and "ample e v id e n c e []" that she is disabled, and that the Commissioner did not carry his burden of d e m o n s tra tin g that jobs which Plaintiff can perform exist in significant numbers in the national e c o n o m y. Plaintiff's Reply Memorandum in Support of Plaintiff's Motion for an Order R e v e rs in g the Decision Below and Awarding Benefits (Document No. 36) at 2; see also id. at 36.

APPLICABLE STANDARDS T h e Social Security Act allows a claimant whose application for SSI benefits was denied to commence an action in a United States District Court to seek review of the Commissioner's fin a l decision. 42 U.S.C. § 405(g); see also Rossello v. Astrue, 529 F.3d 1181, 1186 (D.C. Cir. 2 0 0 8 ) (citation omitted); Calica v. Commissioner of Social Sec., 601 F. Supp. 2d 203, 204 (D .D .C . 2009) (citation omitted); Crawford v. Barnhart, 556 F. Supp. 2d 49, 51-52 (D.D.C. 2 0 0 8 ) (citations omitted).6

Defendant opposes any requirement that the ALJ be required to utilize the O*NET, rather than the DOT. See id at 59 , 11-12. However, because the undersigned has already determined that there is no authority which permits a district court to p r e s c r i b e the reference materials which a vocational expert must utilize (see n.4, supra), no further consideration of this issue is w a rra n ted . Pursuant to the relevant regulations, the Secretary has established a five-step process for evaluating whether a claimant i s "disabled" under the Act. 20 C.F.R. § 404.1520 (1983). The United States District Court for the District of Columbia has s u m m a r i z ed the five­step evaluation as follows: (1) the claimant shall not have undertaken "substantial gainful activity" from the d a t e of onset of the disability; (2) the claimant must demonstrate a "severe impairment," one that "significantly limits [his]
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Ademakinwa v. Commissioner, Social Security Administration

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P u rs u a n t to sentence four of 42 U.S.C. § Section 405(g), a district court has discretion "to e n te r, upon the pleadings and transcript of the record, a judgment affirming, modifying, or re v e rs in g the decision of the Commissioner, with or without remanding the case for a rehearing." 4 2 U.S.C. § Section 405(g); see also Ingram v. Barnhart, No. 05-0740, 2007 WL 1521040, at *2 (D .D .C . May 22, 2007). W ith regard to remand, the courts in which the issue has been addressed have observed ­ w ith o u t relying on the distinction between sentence four or six ­ that remand is appropriate w h e re the court is "unable to discern whether the [Commissioner] considered . . . new and m a te ria l evidence[]" (Lamp v. Astrue, 531 F.3d 629, 633 (8th Cir. 2008) (citation omitted)); w h e re the court cannot adjudicate plaintiff's claims because the record is incomplete (Ortiz v. C o m m is s io n e r of Social Sec., No. 07-4254, 2008 WL 3833421,* 2 (D.N.J. August 13, 2008)); or w h e re the court cannot determine "`the ALJ's rationale . . . without further findings or clearer e x p la n a tio n for the decision'" (Toribio v. Astrue, No. 06-6532, 2009 WL 2366766, *8 (E.D.N.Y. J u ly 31, 2009) (citations omitted)). With regard to the court's discretion to reverse the Commissioner's decision and order an im m e d ia te award of benefits, this court has determined that such action is appropriate "where the e v id e n c e on the record as a whole is clearly indicative of disability and additional hearings would s e rv e no purpose other than to delay the inevitable receipt of benefits[.]" Hawkins v. Massanari,

p h y s i c a l or mental ability to do basic work activities"; (3) the impairment must either be listed in the governing appendix or must b e substantially equivalent to the impairments included in the appendix, and (4) the claimant must not be capable of engaging in w o r k in which he or she has engaged in the past. See, e.g., Pinkney v. Astrue, No. 07-00352, 2009 WL 4909946, *3 (D.D.C. Dec. 1 8 , 2009) (citations omitted). If the claimant is not capable of performing the past work, the Commissioner must next make a d e t e r m i n a t i o n regarding the claimant's "residual functional capacity" ("RFC") in order to determine whether work exists in s u b s t a n t i a l numbers in the national economy which the claimant can perform. See, e.g., Sloan v. Astrue, 538 F. Supp. 2d 152, 154 ( D . D . C . 2008) (citations omitted). While the Plaintiff has the burden of proof for the first four steps, the burden shifts to the C o m m i s s i o n er to establish that the claimant is capable of engaging in other gainful work. Id.

Ademakinwa v. Commissioner, Social Security Administration N o . 00-2102, 2002 WL 379898, at *4 (D.D.C March 8, 2002) (citation omitted); see also L o c k a r d v. Apel, 175 F. Supp. 2d 28, 34 (D.D.C. 2001) (reversal is appropriate where "the a d m in is tra tiv e record has been fully developed and new facts would not be explored on

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re m a n d []" ); Martin v. Apel, 118 F. Supp. 2d 9, 18 (D.D.C. 2000) ("[W]here the record in the case h a s been thoroughly developed, and a hearing would merely function to delay the award of b e n e fits , reversal [instead of remand] is appropriate.") (citation omitted).

D ISC U SSIO N T h e framework for judicial review of the final agency decision at issue in this action is lim ite d by Defendant's concession that "the case must be remanded" due to "problems with the A LJ 's decision[.]" Defendant's Opposition at 12. Thus, only two options are presented: a s e n te n c e four remand, in accordance with Defendant's motion, or an order reversing the decision a n d awarding benefits, in accordance with Plaintiff's motion. T h e undersigned finds that there is a relative dearth of authority in which the bounds of th e court's discretion in this context are addressed. Indeed, the last judge of this court to have h a d occasion to address the issue was the undersigned, some eight years ago, in Hawkins. In H a w k in s , the undersigned concluded that "the [Commissioner] has not made any offer as to why th e evidence it wants to develop is important enough now so as to warrant a remand, but not im p o rta n t enough to have bothered developing before the initial administrative hearing." Hawkins, 2002 WL 379898, at *6 (citation omitted). Here, as in Hawkins, the Defendant has o ffe re d no authority to support his request for remand for further proceedings; here, as in H a w k in s , none of the factors which have been found to warrant remand, rather than reversal, are

Ademakinwa v. Commissioner, Social Security Administration

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p re s e n t. Defendant's Motion for Sentence Four Remand at 1; see also Defendant's Opposition at 3 -5 . Defendant makes no effort either to distinguish Hawkins, or to offer other authorities s u gge s tin g another analysis of this issue. For these reasons, the undersigned finds that the D e fe n d a n t has failed to demonstrate why a sentence four remand, rather than reversal, is w a rra n te d . Indeed, this court has held that "[w]here there is additional evidence which can be p ro d u c e d to remedy defects in the original administrative hearing, a court should remand to the A LJ for a new hearing. . . . However, where the record in the case has been thoroughly d e v e lo p e d , and a hearing would merely function to delay the award of benefits, reversal is a p p ro p ria te ." Martin, 118 F. Supp. 2d at 18 (citations omitted). H e re , Defendant no longer maintains that the decision was supported by substantial e v id e n c e and was reached through a proper application of existing law;7 rather, Defendant claims o n ly that "the evidence of record is not so clear as to mandate the payment of benefits." Defendant's Opposition at 5. Thus, Defendant virtually concedes that even he cannot support the A LJ 's decision. Defendant ­ like Plaintiff ­ recognizes that there are "problems with the ALJ's d e c is io n . . . [which] [lie] in his evaluation of plaintiff's [residual functional capacity]." Defendant's Opposition at 12. However, Defendant offers only speculation that "[a] proper e v a lu a tio n could lead to a different RFC and a different result." Id. (emphasis supplied). Moreover, Defendant does not controvert the evidence with respect to Plaintiff's ailments; a c c o rd in gly, the undersigned finds that the suggestion that on remand, the ALJ could conclude th a t Plaintiff's RFC is broader than that which he initially found is largely specious. Finally, the u n d e rs ign e d observes that the authorities on which Defendant relies for the proposition that at

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See n.6, supra.

Ademakinwa v. Commissioner, Social Security Administration le a s t one of the jobs ­ that of "dowel inspector" ­ which the ALJ found exists in significant n u m b e rs in the national economy are, on average, 20 years old. See Defendant's Opposition at 1 0 -1 1 .

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C O N C L U SIO N In sum, the undersigned concludes that remand pursuant to sentence four is unwarranted. T h e administrative record has been fully developed, and no new facts regarding Plaintiff's im p a irm e n ts would be considered; moreover, Defendant has suggested no basis upon which an A LJ could reach a finding favorable to Defendant regarding Plaintiff's RFC, or the existence of jo b s in significant numbers in the national economy which she can perform. While "reversal in s te a d of remand is more common in disability benefits appeals," in this case, as in Lockard, conditions supporting a reversal are present here. Plaintiff . . . has b e e n entangled in the disability system for at least five years. . . . In a d d itio n , the administrative record has been fully developed and new fa c ts would not be explored on remand. The institutional concern of d e fe rrin g to the expertise of the administrative agency is not present h e re . . . . [I]t would be virtually impossible for [an ALJ] to find a ga in s t plaintiff upon remand. Lockard, 175 F. Supp. 2d at 33-34. The undersigned thus concludes that an immediate award of benefits is warranted: D e fe n d a n t's concession that there are "problems with the ALJ's decision . . . [which] [lie] in his e v a lu a tio n of plaintiff's [residual functional capacity]" (see Defendant's Opposition at 12) d e m o n s tra te s that additional proceedings would simply delay the "inevitable receipt of benefits." Hawkins, 2002 WL 379898, at *6; see also Rossello, 529 F.3d at 1185 (reversal of the

Ademakinwa v. Commissioner, Social Security Administration C o m m is s io n e r's decision indicated where the decision "does not pass muster."). F o r the foregoing reasons, Defendant's Motion for Entry of Judgment with Remand P u rs u a n t to Sentence Four of 42 U.S.C. § 405(g) (Document No. 30) will be denied, and

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P la in tiff's Motion for an Order Reversing the Decision Below and Awarding Benefits (Document N o . 32) will be granted. A n order directing such relief will be filed contemporaneously.

/s/ DEBORAH A. ROBINSON United States Magistrate Judge M a rc h 19, 2010