Gyles v. Social Security Administration

Filing 16

ORDER ADOPTING 1 Complaint, filed by Lewis Wayne Gyles, 14 Report and Recommendations. IT IS ORDERED, ADJUDGED, AND DECREED that the Commissionersdecision is hereby REVERSED and REMANDED pursuant to the fourth sentence of 42U.S.C. § 405(g) for further proceedings consistent therewith. Signed by Judge Elizabeth E Foote on 3/19/2012. (crt,Kennedy, T)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

LEWIS WAYNE GYLES

CIVIL ACTION NO. 10-1768

VERSUS

JUDGE ELIZABETH E. FOOTE

MICHAEL J. ASTRUE, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION

MAG. JUDGE KAREN L. HAYES

ORDER
Lewis Wayne Gyles, a social security disability claimant, objects to an otherwise
favorable ruling and recommendation by the Magistrate Judge reversing the
Commissioner’s decision that the Gyles is not disabled. Gyles argues that the Court
should find that he is entitled to benefits rather than reversing and remanding for a
rehearing before the Administrative Law Judge to determine his residual functional
capacity in accordance with the correct legal standard. Gyles argues that the evidence
in the record is sufficient for the Court to conclusively determine that he is entitled to
benefits. [Record Document 15, p.1]. For the reasons given below, the Court finds
that the Magistrate Judge’s Report and Recommendation is correct and that judgment
as recommended therein is warranted.
I.

Applicable Law
The United States Supreme Court has made clear that when reviewing a decision

by the Commissioner of Social Security Administration, there are only two ways the
reviewing court may remand the case to the Commissioner. Melkonyan v. Sullivan 501
U.S. 89, 99-100 (1992); Istre v. Apfel, 208 F.3d 517, 519-20 (5th Cir. 2000). The fourth

sentence of 42 U.S.C. § 405(g) grants the reviewing court the power to affirm, modify,
or reverse the “decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (2006); Melkonyan, 501 U.S.
at 99-100. A remand under the fourth sentence of § 405(g) must issue in conjunction
with a final judgment. Melkonyan, 501 U.S. at 99-100. The reviewing court may also
remand under the sixth sentence of § 405(g) and “order additional evidence to be taken
before the Commission 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) (2006). When
the court remands under sentence six of § 405(g) it is not required to make “any
substantive ruling as to the correctness of the Secretary's decision,” however, the court
must find that there was “good cause for failing to present the evidence earlier....”
Melkonyan, 501 U.S. at 100.
After having considered the Report and Recommendation of the Magistrate
Judge together and conducting a de novo review of the record, the Court is persuaded
the Magistrate Judge is correct and that the Commission’s decision must be reversed
because it is not supported by substantial evidence. Thus, only the fourth sentence of
§405(g) is at issue because the Court is entering a final judgment addressing the
correctness of the Commissioner’s decision. Therefore, the Court need not find “good
cause” for failure to introduce any new evidence during the administrative proceeding in
order to remand for rehearing.
The fourth sentence of § 405(g) grants the reviewing court wide discretion to

dispose of matters “with or without remanding the cause for a rehearing.” 42 U.S.C. §
205(g) (2006); Bordelon v. Barnhart, 161 Fed.Appx. 348, 353 (5th Cir. 2005)
(unpublished). When the court cannot rule definitively one way or another on the
existing record, remand is appropriate. Ferguson v. Schweiker, 641 F.2d 243, 249-50
(5th Cir. 1981), rev’d on other grounds (“The record is simply inconclusive as to whether
jobs exist in the national economy which a person of appellant's age, experience,
education and impairments can perform, and whether appellant's alcoholism is disabling
or not.”); Fruge v. Harris, 631 F.2d 1244, 1247 (5th Cir. 1980) (“The present state of the
record with regard to Fruge’s employment capabilities and opportunities makes it
impossible for us to rule definitively one way or the other.”).
II.

Analysis
The Court agrees with the Magistrate Judge that on the basis of the current

record, the Court cannot definitively determine Gyles’s residual functional capacity. The
Magistrate Judge concluded that the ALJ improperly assigned no weight to the report of
the physical therapist stating that Gyles would need to alternate sitting and standing at
least twenty minutes every hour. Gyles argues that because the ALJ’s decision to
exclude this evidence rendered the ALJ’s decision unsupported by substantial evidence,
the excluded evidence is “sufficient” evidence from which the Court can conclude that
Gyles is disabled. [Record Document 15, p.3]. The proposition that the exclusion of
certain evidence rendered the decision that Gyles was disabled unsupported by
substantial evidence does not, however, logically entail that the evidence improperly
excluded is evidence sufficient for the Court to make the opposite finding. Rather, the

question remains whether the record is in such a state as to permit the Court to
definitively determine whether Gyles is disabled. Fruge, 631 F.2d at 1247.
After reviewing the record, the Court agrees with the Magistrate Judge that
evidence in the record is not sufficient to enable the Court to determine definitively
whether or not Gyles is disabled. Compare Carter v. Heckler, 712 F.2d 137, 142 (5th
Cir. 1983) (remanding and declining to find claimant disabled when ALJ only had one
source of information about claimant’s exertional limitations) and Johnson v. Harris, 612
F.2d 993, 998 (5th Cir. 1980) (remanding and declining to find claimant disabled when
there were outstanding factual questions concerning claimant’s residual functional
capacity) with McQueen v. Appel, 168 F.3d 152, 156 (5th Cir. 1999) (remanding with
instructions to grant claimant’s application when nothing on the record supported a
finding that sixty-year-old claimant had highly marketable skills), Randall v. Sullivan,
956 F.2d 105, (5th Cir. 1992) (reversing because ALJ relied on the medical reports of
someone other than the claimant and remanding solely for purpose of calculating
benefits due in an eight-year old case with numerous previous remands), and Rini v.
Harris, 615 F.2d 625, 627 (5th Cir. 1980) (remanding with direction that judgment be
entered for claimant when case had already been remanded once, the issue before the
court was not whether claimant was disabled but when he had reported his return to
work, and Appeals Council clearly erred.). Rather, the Magistrate Judge was correct to
limit its recommendation to the conclusion that if the ALJ had recognized that the
physical therapist is a valid “other source” then the ALJ may well have been compelled
to assign more weight to the physical therapist’s findings. Rini, 615 F.2d at 627 (“We

do not reweigh the evidence or substitute our judgment for the Secretary's judgment.”).
Accordingly, the Court declines to find Gyles disabled on the basis of the current
record. As stated by the Magistrate Judge, on remand “it may prove necessary to
consult an orthopedist who can examine plaintiff and issue a medical source statement
addressing the limitations imposed by plaintiff’s back impairment, including his
professed need to alter his activities on an hourly basis.” [Record Document 14, p.10].
III.

Conclusion
The Report and Recommendation of the Magistrate Judge having been

considered, together with the written objections thereto filed with this Court, and, after
a de novo review of the record, finding that the Magistrate Judge's Report and
Recommendation is correct and that judgment as recommended therein is warranted,
IT IS ORDERED, ADJUDGED, AND DECREED that the Commissioner’s
decision is hereby REVERSED and REMANDED pursuant to the fourth sentence of 42
U.S.C. § 405(g) for further proceedings consistent therewith.
THUS DONE AND SIGNED this 19th day of March 2012, Shreveport, Louisiana.