Grubbs, Jr. v. Social Security, Commissioner of

Filing 16

ORDER rejecting 14 Report and Recommendation on 10 , 13 Cross-Motions for Summary Judgment and Remanding Action. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
L.V. GRUBBS, JR.,
Plaintiff,
v.

Case No. 12-14621
Hon. Denise Page Hood

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
/
ORDER REJECTING REPORT AND RECOMMENDATION
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
and REMANDING ACTION
This matter is before the Court on Magistrate Judge Michael J. Hluchaniuk’s
Report and Recommendation [Doc. No. 14, filed February 4, 2014].

An

Objection to the Report and Recommendation was timely filed by the Plaintiff L.V.
Grubbs, Jr. No response to the Objection was filed. For the reasons below, the
Court rejects the Magistrate Judge’s Report and Recommendation and remands the
matter to the Commissioner of Social Security.
Judicial review of the Commissioner’s decision is limited in scope to
determining whether the Commissioner employed the proper legal criteria in
reaching his conclusion. Garner v. Heckler, 745 F.2d 383 (6th Cir. 1984). The
credibility findings of an administrative law judge (“ALJ”) must not be discarded
lightly and should be accorded great deference. Hardaway v. Secretary of Health

and Human Services, 823 F.2d 922, 928 (6th Cir. 1987). A district court’s review
of an ALJ’s decision is not a de novo review. The district court may not resolve
conflicts in the evidence nor decide questions of credibility. Garner, 745 F.2d at
397. The decision of the Commissioner must be upheld if supported by substantial
evidence, even if the record might support a contrary decision or if the district
court arrives at a different conclusion. Smith v. Secretary of HHS, 893 F.2d 106,
108 (6th Cir. 1984); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
The Court has had an opportunity to review this matter and finds that the
Magistrate Judge correctly sets forth the facts and the law, but did not reach the
correct conclusion. This Court agrees with Plaintiff’s Objection that the failure by
the ALJ to address the additional documents submitted by Plaintiff and admitted at
the hearing by the ALJ, coupled by the failure to list and attach the exhibits to the
record, require this matter be remanded to the Commissioner to address the matter.
(Tr. 23-25) The ALJ admitted Exhibits 7F and 8F during the hearing. The record
indicates Exhibit 7F was faxed, but Exhibit 8F is still missing and it appears
Plaintiff was unable to produce the document at this stage of the proceedings. (Tr.
31, 37-38, 279-80) Exhibit 7F is relevant because it is medical record from
Plaintiff’s treating physician, Yasser M. Aleech, M.D., regarding Plaintiff’s
pulmonary functions. (Tr. 280-90) Exhibit 8F is noted on the record as a document
from Plaintiff’s “family doctor.” (Tr. 38) Plaintiff asserts that he should not be
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punished for the Commissioner’s negligence in failing to list and attach Exhibit 8F,
in light of the record indicating the ALJ admitted the evidence. Although Exhibit
8F is still missing and Plaintiff is unable to locate the document, he argues that it is
assumed submitted in light of the record noting such. It may be that Exhibit 8F is
also relevant if it is a record from Plaintiff’s treating “family doctor.”
As noted by the Magistrate Judge, the ALJ is required to consider every
medical opinion received when determining whether a claimant is disabled. 20
CFR § 416.920(a)(3). The assessment of medical evidence conducted at a hearing
is important at step 5 of the evaluation of a social security disability claim because
the residual function analysis the ALJ must perform and as applied by a vocational
expert requires the VE to assess the claimant’s ability to perform work. Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010). The ALJ’s failure to
apply the agency rules and regulations as to the exhibits he admitted “denotes a
lack of substantial evidence, even when the conclusion of the ALJ may be justified
based upon the record.” Cole v. Astrue, 661 F.3d 931, 939-40 (6th Cir. 2011). The
Commissioner’s violation of the agency’s own rules and regulations may be
deemed “harmless error” if 1) the treating source’s opinion is so patently deficient
that the Commissioner could not possibly credit it; 2) if the Commissioner adopts
the opinion of the treating source or makes findings consistent with the opinion; or
3) where the Commissioner has met the goal of § 1527(d)(2)(giving controlling
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weight to treating source if not inconsistent with the other substantial evidence in
the case record), even though there was not compliance under the terms of the
regulation. Id. at 940.
In this case, the Court will not determine whether Exhibit 7F or the missing
Exhibit 8F is so patently deficient that the ALJ could not credit Plaintiff’s treating
physicians. The Sixth Circuit has held that an ALJ’s decision is not supported by
substantial evidence based on the ALJ’s violation of the agency’s procedural rules
of not addressing or complying with the treating physician rule and the good
reasons requirement. Id. “To hold otherwise ... would afford the Commission the
ability [to] violate the regulation[s] with impunity and render the protections
promised therein illusory.” Id. (quotation omitted). Ignoring the medical evidence
from Plaintiff’s treating physicians was not harmless because this resulted in the
ALJ’s disregard of what could be substantial evidence to support Plaintiff’s claim
of disability. Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 729 (6th Cir. 2014).
As noted by the Sixth Circuit, “[w]e do not hesitate to remand” when an ALJ
violates the treating physician rule or fails to follow agency rules. Id. The Court
will not allow the Commissioner to disregard agency rules and procedures. The
Court remands the matter to further consider Plaintiff’s medical records
appropriately. The absence of a review of treatment records from a treating source
and the lack of analysis of such made it impossible for the ALJ to properly assess
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whether the Plaintiff was disabled and/or whether Plaintiff had the residual
function capacity to perform any work.
The Magistrate Judge notes that according to the Commissioner a remand
under sentence six could be considered, but the Court finds remand is appropriate
under sentence four of 42 U.S.C. § 405(g) since the ALJ failed to apply the
appropriate standards and regulations in denying disability benefits. The Supreme
Court recognizes only two kinds of remands involving social security cases–those
pursuant to sentence four and those pursuant to sentence six of 42 U.S.C. § 405(g).
Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991); Sullivan v. Finkelstein, 496 U.S.
617, 626 (1990).

The Supreme Court concluded that Congress’s explicit

delineation in § 405(g) regarding circumstances under which remands are
authorized clearly showed that Congress intended to limit the district court’s
authority to enter remand orders in these two types of cases. Melkonyan, 501 U.S.
at 100. Sentence four allows a district court to remand in conjunction with a
judgment affirming, modifying or reversing the Commissioner’s decision. Id. at
99-100. Sentence four remands are appropriate in situations where the decision
maker incorrectly applied the regulations in denying disability benefits. Faucher
v. Secretary of Health & Human Servs., 17 F. 3d 171, 174 (6th Cir. 1994). In such
situations the district court must reverse the Commissioner’s decision and remand
the matter for further proceedings in order to correct the error. Id. A judgment
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must be entered immediately with a sentence four remand and the district court
does not retain jurisdiction during the administrative proceedings on remand.
Melkonyan, 501 U.S. 101-02. Failure to remand under sentence four and retention
of jurisdiction is error. Shalala v. Schaeffer, 509 U.S. 292, 299 (1993). A sentence
four remand is a judgment for the plaintiff. Id. at 302 (citations omitted).
A sentence six remand is for the Commissioner to consider new evidence
which now has come to light, was not available to the claimant at the time of the
administrative proceeding and that such evidence might have changed the outcome
of the proceeding. Melkonyan, 501 U.S. at 98. In a sentence six remand, the
district court does not affirm, modify, or reverse the Commissioner’s decision or
rule on the correctness of the administrative determination. Id. A sentence six
remand is not appropriate since the evidence at issue was available to the claimant
and the Commissioner at the time of the hearing.
Accordingly,
IT IS ORDERED that the Report and Recommendation of Magistrate Judge
Michael J. Hluchaniuk [Doc. No. 14, filed February 4, 2014] is REJECTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary
Judgment [Doc. No. 10, filed March 25, 2013] is GRANTED as more fully set
forth above and to that extent the matter is remanded for further review.

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IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [Doc. No. 13, filed May 20, 2013] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Objection [Doc. No. 15, filed
February 18, 2014] is SUSTAINED.
IT IS FURTHER ORDERED that the Commissioner’s findings are
REVERSED and this matter is REMANDED to the Commissioner under
Sentence Four of 42 U.S.C. § 405(g) for further proceedings.
IT IS FURTHER ORDERED that this action is designated as CLOSED
on the Court’s docket.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: March 31, 2014
I hereby certify that a copy of the foregoing document was served upon
counsel of record on March 31, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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