Suttles v. Commissioner of Social Security
Filing
13
REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Tammy Suttles: that the decision of the Commissioner be REVERSED and REMANDED under sentence six for consideration of new and material evidence. The Court will retain jurisdiction until follow ing the entry of judgment after remand. Should the presiding district court decline to remand under sentence six, this case alternatively should be remanded post-judgment pursuant to sentence four for reconsideration of evidence in light of errors noted, but without consideration of new evidence not previously considered by the ALJ Objections to R&R due by 7/5/2013. Signed by Magistrate Judge Stephanie K. Bowman on 6/18/13. (jl1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TAMMY SUTTLES,
Case No. 1:12-cv-658
Plaintiff,
Spiegel, J.
Bowman, M.J.
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff Tammy Suttles filed this Social Security appeal in order to challenge the
Defendant’s determination that she is not disabled.
See 42 U.S.C. §405(g).
Proceeding through counsel, Plaintiff presents four claims of error, all of which the
Defendant disputes. As explained below, I conclude that the ALJ’s finding of nondisability should be REVERSED because it is not supported by substantial evidence in
the administrative record.
I. Summary of Administrative Record
Plaintiff filed an application for Supplemental Security Income (“SSI”) in March
2007, alleging disability beginning on February 10, 2001 due to physical impairments.
After Plaintiff’s application was denied initially and upon reconsideration, she requested
a hearing de novo before an Administrative Law Judge (“ALJ”). At some point in the
administrative process, Plaintiff clarified her claim to explain that she was claiming
disability due to a combination of mental and physical impairments. At a hearing held in
June 2010, ALJ John T. Kelly heard testimony from Plaintiff and from a vocational
1
expert. On July 29, 2010, the ALJ denied Plaintiff’s application in a written decision,
concluding that Plaintiff was not disabled. (Tr. 16-24). The Appeals Council denied
Plaintiff’s request for review, leaving the ALJ’s decision as the Defendant’s final
determination.
Plaintiff was 43 years old at the time of the ALJ’s decision, with a limited
education, having dropped out of school after the ninth grade. (Tr. 23). She previously
worked as a custodian, general laborer, and patient assistant, but has not engaged in
substantial gainful activity since her alleged disability date. Based upon the record and
testimony, the ALJ found that Plaintiff has the severe impairments of: “chronic low back
pain, traumatic and degenerative joint disease of the left shoulder, and low-end
borderline intellectual functioning.” (Tr. 18). These impairments did not alone, or in
combination with any other impairments, meet or medically equal one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 19). Rather, the ALJ
determined that Plaintiff retained the residual functional capacity (“RFC”) to perform:
a moderate amount of sitting, ambulating, standing, bending, kneeling,
pushing, pulling, lifting, and carrying heavy objects, and fine and gross
manipulation, but she would have difficulty reaching overhead with the left
upper extremity. There are no visual and/or communication limitations nor
are there environmental limitations. Mentally, the claimant retains the
capacity to understand, remember, and follow simple one or two-step job
instructions, to relate to bosses, coworkers, and the public, and to tolerate
the stress of day-to-day employment. Her ability to sustain attention and
concentration to complete daily work tasks is mildly impaired.
(Tr. 21).
The ALJ concluded that, while Plaintiff had no past relevant work, she could
still perform “jobs that exist in significant numbers in the national economy,” including,
as testified to by the vocational expert, the light and sedentary jobs of packer,
inspector/sorter, machine tender, and production worker. (Tr. 23-24). Accordingly, the
2
ALJ determined that Plaintiff is not under disability, as defined in the Social Security
Regulations, and is not entitled to SSI. (Tr. 24).
On appeal to this Court, Plaintiff argues that the ALJ erred: (1) because the
decision is “illogical and internally inconsistent” concerning Plaintiff’s psychological
impairments; (2) by failing to adequately define Plaintiff’s RFC including her exertional
level; and (3) by failing to find Plaintiff met or equaled Listing 12.05C. In her fourth
assignment of error, Plaintiff argues that in addition to remand under Sentence Four for
the first three errors, she is entitled to remand under Sentence Six for consideration of
“new and material evidence.” The undersigned agrees that remand is required.
II. Analysis
A. Judicial Standard of Review
To be eligible for SSI benefits, a claimant must be under a “disability” within the
definition of the Social Security Act.
See 42 U.S.C. §1382c(a).
Narrowed to its
statutory meaning, a “disability” includes only physical or mental impairments that are
both “medically determinable” and severe enough to prevent the applicant from (1)
performing his or her past job and (2) engaging in “substantial gainful activity” that is
available in the regional or national economies. See Bowen v. City of New York, 476
U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner’s denial of benefits, the
court’s first inquiry is to determine whether the ALJ’s non-disability finding is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal
3
quotation omitted). In conducting this review, the court should consider the record as a
whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence
supports the ALJ’s denial of benefits, then that finding must be affirmed, even if
substantial evidence also exists in the record to support a finding of disability. Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion .
. . . The substantial evidence standard presupposes that there is a ‘zone
of choice’ within which the Secretary may proceed without interference
from the courts. If the Secretary’s decision is supported by substantial
evidence, a reviewing court must affirm.
Id. (citations omitted).
In considering an application for benefits, the Social Security Agency is guided by
the following sequential benefits analysis: at Step 1, the Commissioner asks if the
claimant is still performing substantial gainful activity; at Step 2, the Commissioner
determines if one or more of the claimant’s impairments are “severe;” at Step 3, the
Commissioner analyzes whether the claimant’s impairments, singly or in combination,
meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner
determines whether or not the claimant can still perform his or her past relevant work;
and finally, at Step 5, if it is established that claimant can no longer perform his or her
past relevant work, the burden of proof shifts to the agency to determine whether a
significant number of other jobs which the claimant can perform exist in the national
economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir.
2006); 20 C.F.R. §§404.1520, 416.920. However, a plaintiff bears the ultimate burden
to prove by sufficient evidence that he or she is entitled to disability or supplemental
security benefits. See 20 C.F.R. § 404.1512(a).
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B. Plaintiff’s Assertions of Error
1. Inconsistencies in the ALJ’s Evaluation of Mental Impairment
Plaintiff first argues that the ALJ’s decision contains internal inconsistencies
regarding the degree of Plaintiff’s mental impairments.
Plaintiff claims two distinct
mental impairments: a) mental illness; and b) cognitive impairment.
The ALJ first
determined that Plaintiff suffered from depression and anxiety, but that her mental
illness was not “severe” because it did not “cause more than minimal limitation in the
claimant’s ability to perform basic mental work activities.” (Tr. 18). On the other hand,
the ALJ agreed that Plaintiff suffered from a “severe” cognitive impairment, even though
the ALJ disagreed with Plaintiff’s post-hearing argument that the severity of that
impairment met or equaled Listing 12.05C. (Tr. 20).
In the first section of his opinion, concerning Plaintiff’s depression and/or anxiety,
the ALJ relied on the consulting opinion of examiner Dr. Rosenthal to rate Plaintiff’s
ability to maintain concentration, persistence, and pace as only “mildly” impaired, (Tr.
18-19). By contrast, when describing Plaintiff’s cognitive impairment, the ALJ relied
upon the opinion of consulting examiner Dr. Nelson to rate Plaintiff’s ability to maintain
attention, concentration, persistence and pace is “moderately” impaired. (Tr. 20-21).
Ultimately, in formulating Plaintiff’s RFC, the ALJ concluded that Plaintiff was only
“mildly” impaired. (Tr. 21). Plaintiff argues that this “flip-flopping” between findings of
mild and moderate impairment, for the same work-related ability to maintain attention,
concentration, persistence and pace, is improper and requires remand for clarification. I
agree.
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The Commissioner argues that the error was harmless because “a reading of the
decision as a whole makes clear that the ALJ’s statement that Plaintiff had a ‘mild’
limitation [in attention, concentration, persistence and pace] at step two, and therefore
had no ‘severe’ mental impairment, was simply a scrivener’s error.” (Doc. 11 at 8).
However, it would be improper for this Court to take such a liberal interpretative stance
concerning this somewhat glaring error, particularly in light of the other errors in the
record.
2. Overly Vague Residual Functional Capacity Assessment
Plaintiff’s second assignment of error also warrants remand. First, the ALJ failed
to specify Plaintiff’s exertional level.
Ordinarily, an ALJ must indicate whether a
claimant can perform sedentary, light, medium, or heavy work. In this case, the ALJ
merely repeated consultant Dr. Fritzhand’s finding that the Plaintiff can perform a
“moderate amount” of various physical activities. (Tr. 21). The Defendant concedes
that this statement is “vague.”
The ALJ also failed to include postural limitations corresponding with Plaintiff’s
diminished range of motion in her back, hips, and knees, all of which were documented
by consulting examiner Dr. Fritzhand. (Tr. 259-266). The ALJ further failed to specify
limitations concerning Plaintiff’s ability to reach overhead with her upper left arm, and
failed to discuss Plaintiff’s asserted need for a sit/stand option.
Defendant argues that notwithstanding the ALJ’s failure to specify Plaintiff’s
exertional level and other limitations in his written opinion, this Court should again
excuse the “relative opacity of his RFC finding” as harmless error. (Doc. 11 at 7). The
Defendant points out that, at the evidentiary hearing, the ALJ was more explicit in his
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hypothetical to the vocational expert. The transcript of that hearing reflects that the ALJ
asked the VE to assume an individual with limitations consistent with “Exhibit 4F,” an
apparent reference to the Physical Residual Functional Capacity Assessment form - not
by Dr. Fritzhand, whose limitations the ALJ appears to have adopted - but by Jeffrey
Vasiloff, M.D., who identified a different set of limitations consistent with a range of
medium work. However, the ALJ then instructed the VE to assume that the Plaintiff was
limited to light work. (Tr. 60-61).
The Plaintiff persuasively argues that none of the
variations in the hypothetical posed to the VE at the hearing come close to matching the
RFC ultimately found by the ALJ in his opinion.
Thus, the overly vague RFC finding
cannot be “combined” with hearing testimony in any coherent manner so as to remedy
this error harmless.
3. Alleged Error in Assessment of Cognitive Impairment and Sentence Six
In her third assignment of error, Plaintiff asserts that the ALJ failed to provide
sufficient reasons for his determination that she did not meet or equal Listing 12.05C,
for mild mental retardation. In her related fourth assignment of error, Plaintiff argues
that remand under Sentence Six is required, because recently obtained school records
and other evidence shows that she meets the criteria for presumptive disability under
Listing 12.05C.
For the convenience of the Court, these two assertions of error are
discussed together.
The Listing for mental retardation, contained in 20 C.F.R. Part 404, Subpart P,
Appendix 1, states:
12.05 Mental retardation: Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports an onset of the impairment before age
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22. The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
...C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant
work-related limitation of function.
Id.
In Foster v. Halter, 279 F.3d 348 (6th Cir. 2001), the Sixth Circuit clarified that in
addition to a qualifying IQ score, a claimant is required to satisfy the “adaptive
functioning” standard in order to meet Listing 12.05C.
In Foster, the plaintiff had
dropped out of school after the ninth grade and had two sets of qualifying IQ scores, but
did not satisfy Listing 12.05 because there was no evidence of deficits in adaptive
functioning before age 22, and because her prior work demonstrated an “ability to
perform relatively complicated tasks.” Id. at 355. Therefore, in order to meet Listing
12.05, a plaintiff must show: “(1) subaverage intellectual functioning; (2) onset before
age twenty-two; and (3) adaptive-skills limitations,” in addition to the criteria under A, B,
C, or D of Section 12.05. Hayes v. Com'r of Soc. Sec., 357 Fed. Appx. 672, 675 (6th
Cir. 2009). “Adaptive functioning” involves an individual's “effectiveness in areas such
as social skills, communication, and daily living skills, and how well the person meets
the standards of personal independence and social responsibility expected of his or her
age by his or her cultural group.” Heller v. Doe by Doe, 509 U.S. 312, 329, 113 S.Ct.
2637, 125 L.Ed.2d 257 (1993), citing Diagnostic and Statistical Manual of Mental
Disorders, pp. 28–29 (3d rev. ed.1987).
In this case, the ALJ found that although Plaintiff had “low borderline” intellectual
functioning, she did not meet or equal the Listing. The ALJ acknowledged that an IQ
examination in January 2000 yielded a verbal IQ of 71, performance IQ of 75, and a full
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scale IQ score of 70 – the last of which is within the qualifying range defined by Listing
12.05C.
However, the ALJ deemed that IQ result not to be “valid,” because the
examining consultant, Dr. Nelson, noted that the results were produced at a time when
the Plaintiff was complaining of nausea.
(Tr. 20).
The ALJ further reasoned that
Plaintiff did not meet the Listing because she
was 36-years of age at the time of this evaluation, and there is nothing in
the evidence to demonstrate or support onset of impairment before age
22. In addition, claimant does not have a physical or other mental
impairment imposing an additional and significant work-related limitation of
function required of this listing.
(Id.). Last but not least, the ALJ took note of other psychological test results and daily
activities relevant to adaptive functioning that supported his conclusion that Plaintiff did
not meet or equal the Listing.
a. Four Asserted Errors in Step 3 Listing Analysis
Plaintiff argues that the ALJ’s analysis reflects four errors.
First, Plaintiff
contends that Dr. Nelson himself did not explicitly deem the test results invalid, but
rather, stated only that the results “may be somewhat lower because this [IQ test] was
administered during the first testing when she was reportedly more nauseous.” (Tr.
255, emphasis added).
Plaintiff heavily relies on the unpublished Dragon v. Com’r of Soc. Sec., 470 Fed.
Appx. 454, 2012 WL 987758 (6th Cir. March 26, 2012) to support her contention that it
is reversible error for an ALJ to invalidate an otherwise qualifying IQ score in the
absence of explicit invalidation by the examiner. In that split decision, 1 the Sixth Circuit
1
Judge Boggs dissented from the portion of the opinion that determined benefits should be awarded,
explaining that he would remand for further fact-finding concerning the “close and contested issue” of
whether Dragon was “‘of borderline intellectual functioning as opposed to mentally retarded.’” Id. at 12.
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reversed and remanded for an immediate award of benefits under Listing 12.05. The
appellate court found that Dragon (whose had an IQ score of 50) had presented
“significant” evidence of deficits in adaptive functioning, including similar low IQ scores
at age 12 that the ALJ improperly ignored, and a host of other validating school records.
Thus, substantial evidence did not exist to invalidate the IQ scores. Aside from the fact
that the court was focused on the issue of when an ALJ can invalidate IQ scores,
Dragon is distinguishable because there, the plaintiff presented ample evidence of
deficits in adaptive functioning. In addition, unlike Dragon, in this case Plaintiff’s IQ
scores are at the very top of the “mild” retardation range. Dr. Nelson also diagnosed
borderline intellectual functioning rather than mental retardation, strongly implying the
invalidity of the single lower score. (Tr. 257).
Plaintiff’s argument rests tenuously on a few statements in Dr. Nelson’s report
that counter the conclusion that the single low score was invalid, particularly Dr.
Nelson’s conclusion that “the chances that the range of scores from 67 to 75 include her
true IQ are about 95 out of 100.” (Tr. 256). However, this statement and others cited by
Plaintiff do not negate the ALJ’s analysis insofar as the statements can (and were)
reasonably read by the ALJ as evidence that the lone IQ score among Plaintiff’s results
that fell at the top of the listing range should not be considered to be a valid qualifying
score, but instead that Plaintiff’s IQ fell within the borderline range. (See Tr. 20). Even
Plaintiff concedes that “some of the objective findings [by Dr. Nelson] are consistent
with borderline intellectual functioning, or, in a few areas, even low average function.”
(Doc. 12 at 3, n.3). Accord Bailey v. Com’r of Soc. Sec., Case No. 1:12-cv-140, 2013
WL 2286962 (May 23, 2013)(Spiegel, J., holding that ALJ properly evaluated conflicting
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evidence concerning Plaintiff’s IQ scores, with several scores supporting a finding of
borderline intellectual functioning despite additional scores below 70, including one
score of 59).
Plaintiff’s second complaint is that the ALJ erred by noting that there was no
evidence to support onset prior to age 22. Plaintiff asserts that both “case law and
general medical standards state that an adult’s IQ is static over time,” absent an
intervening event such as brain injury. (Doc. 8 at 14). She extrapolates that her IQ at
age 36 must therefore be the same as her adult IQ between the ages of 18 and 22.
While Plaintiff accurately states a general principle, Sixth Circuit case law and the
regulatory framework distinguish between IQ scores obtained during childhood, and
those gleaned from adult testing. 2 See Elam ex rel. Golay v. Com’r of Soc. Sec., 348
F.3d 124, 125 (6th Cir. 2003), citing 20 C.F.R. §404, Subpt. P, App. 1 §112.00D.
Notwithstanding the designation of legal adulthood at age 18, under the Social Security
Act, a claimant is required to demonstrate the onset of symptoms prior to age 22. This
slight discrepancy (between legal adulthood for other purposes at age 18, and a Listing
reference to age 22) partly may be explained by scientific consensus concerning
neurological development, which generally holds that frontal lobe development is not
complete until approximately well into the 20’s. 3 Regardless of the reasons, the ALJ did
not err in pointing out that the language of Listing 12.05C requires onset prior to the age
of 22.
Although some courts, including one unpublished Sixth Circuit case, have
allowed IQ tests taken after the required onset date of 22 to be used to establish
2
With the exception of the unpublished Dragon, Plaintiff relies on non-binding case law from other circuits.
3See,e.g.http://www.hhs.gov/opa/familylife/tech_assistance/etraining/adolescent_brain/Development/prefrontal_cortex/,
accessed on June 14, 2013.
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disability under the listing, other decisions, including published Sixth Circuit authority,
demonstrate far less willingness to do so. See Foster, 279 F.3d at 355 (holding that
plaintiff failed to show intellectual functioning was “significantly subaverage” prior to age
22, where first IQ testing was not until age 42). Ironically, the new records obtained by
Plaintiff after her evidentiary hearing undercut Plaintiff’s argument, because they reflect
a higher and non-qualifying adolescent IQ score of 76.
Third, Plaintiff argues that the ALJ erred in stating that she does not have a
“physical or other mental impairment.”
(Tr. 20).
Plaintiff is correct that the ALJ’s
statement was inconsistent with other findings that reflect severe physical impairments.
(Tr. 3, 21). The ALJ should re-examine this issue on remand.
Fourth, Plaintiff complains that the ALJ’s analysis of her “present” adaptive
functioning was improper. She points out that the ALJ did not explicitly discuss the
issue of Plaintiff’s deficits in adaptive functioning, notwithstanding his discussion of
many components correlated with the element of adaptive functioning. Plaintiff also
relies on Brown v. Sec’y of HHS, 948 F.2d 268 (6th Cir. 1991), in which the Sixth Circuit
held that activities of daily living similar to those in which Plaintiff engages were not
“inconsistent” with a finding that a plaintiff has the requisite deficits in adaptive
functioning. Plaintiff additionally argues that Dr. Nelson’s report that her appearance
was “somewhat untidy” and that her hair was “unkempt” supports a finding that she had
the requisite present deficits in adaptive functioning.
Because remand is required for other reasons, the undersigned notes only that
remand would not be supported by this alleged “error” alone. Dr. Rosenthal’s report,
which was properly relied upon by the ALJ, provides strong support for the ALJ’s
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determination that Plaintiff did not have the requisite present deficits in adaptive
functioning to meet or equal Listing 12.05C. It is worth noting that Brown was decided
prior to the emphasis on adaptive functioning highlighted in Foster. In addition, unlike
Brown, this record contains evidence that Plaintiff has “borderline intellectual
functioning,” with no mental health professional opining that Plaintiff is retarded.
Notwithstanding Brown’s conclusion that a certain level of activity is not “inconsistent”
with mild mental retardation, ample post-Brown case law establishes that where
evidence exists that a plaintiff has been able to live independently and maintain full-time
employment for many years, as in this case, an ALJ’s decision that a plaintiff does not
meet Listing 12.05, based on her level of adaptive functioning, generally will be upheld
as supported by substantial evidence. See Bailey v. Com’r of Soc. Sec., 2013 WL
2286962 at *6 (collecting cases); West v. Com'r of Soc. Sec., 240 Fed. Appx. 692, 698
(6th Cir.2007) (citing Heller, and holding that plaintiff who held a longterm, full-time job,
with many activities of daily living, did not show deficiencies in adaptive functioning).
b. Plaintiff’s Sentence Six Arguments
Acknowledging that a claimant must also show the manifestation of deficits in
adaptive functioning prior to the age of 22, Plaintiff argues that school records support
that finding. (Tr. 229-241). While limited evidence of Plaintiff’s records was presented
to the ALJ, Plaintiff explains that her attorney was able to obtain more complete school
records following the hearing. Ordinarily, this Court’s review is limited to evidence that
was before the Commissioner during administrative proceedings. However, an
exception exists in the Act for evidence that is new and material, so long as the Plaintiff
demonstrates good cause for not submitting the evidence in the prior proceeding. See
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Cline v. Com’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). Plaintiff contends that in
this case, the recently obtained school records constitute new and material evidence for
which remand under sentence six of 42 U.S.C. §405(g) is appropriate.
Plaintiff presented the school records to the Appeals Council, but that body
declined review. Therefore, the records are “new” because they were not considered
prior to the final decision of the Commissioner. The degree to which the records are
“material” is debatable, however, given that the childhood IQ score was well above the
range required by Listing 12.05C and therefore not likely to alter the Commissioner’s
decision. Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir.
1988). On the other hand, some of the records are arguably “material” to the separate
issue of Plaintiff’s adaptive functioning prior to the age of 22.
In addition to the school records, Plaintiff seeks remand under sentence six for
review of additional medical records concerning her orthopedic impairments. Plaintiff
persuasively argues that those records are both new and material. She asserts that the
record reflects “good cause” for her failure to earlier present the records, because her
prior attorney was unable to obtain the records despite a “valiant effort” to do so, and
“even ALJ Kelly was unable to get Dr. Smith’s office to cooperate with a subpoena
duces tecum.” (Doc. 8 at 21). Defendant disputes only the materiality of the new
records; Defendant does not dispute that Plaintiff has demonstrated good cause for her
failure to present them to the ALJ. 4
4
The record reflects that prior counsel made multiple attempts to obtain the records prior to the hearing,
and eventually issued a subpoena duces tecum to Dr. Smith. Dr. Smith’s office failed to comply with that
subpoena. The ALJ stated that he would go forward with the case, but would consider Dr. Smith’s failure
to comply as “obstruction.” (Tr. 44-45).
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Given the conclusion that Plaintiff is entitled to a remand for additional review of
Dr. Smith’s records, and the relatively close issue concerning whether the Plaintiff’s
school records are equally “material,” the undersigned will recommend that the
Commissioner review both sets of records under sentence six on remand. In making
this recommendation, the undersigned would note that both the statute and relevant
case law confirm that this Court retains jurisdiction when a social security appeal is
remanded under sentence six. See Marshall v. Com’r of Soc. Sec., 444 F.3d 837, 841
(6th Cir. 2006)(explaining that the district court retains jurisdiction following sentence six
remands which do not involve a final judgment, but not for sentence four remands which
involve a final judgment). Thus, to the extent that the presiding district judge adopts the
recommendation to remand under sentence six, no “final judgment” can be rendered by
this Court, and this Court will continue to retain jurisdiction.
In Melkonyan v. Sullivan, 501 U.S. 89, 111 S.Ct. 2157 (1991), the Supreme
Court explained that remand is authorized only under sentence four or sentence six of
the Social Security Act. The two types of remand are mutually exclusive. While not
pertinent to the issues currently presented, the difference between the two types of
remands under the Social Security Act is relevant for purposes of appeal, and may
become relevant in the context of resolving any future petition under the Equal Access
to Justice Act (“EAJA”). Marshall, 444 F.3d at 842. Most such fee petitions are filed by
a “prevailing party” who obtains a sentence four remand, claiming fees for a limited time
period between the filing of the civil complaint and the remand/corresponding judgment
15
by this Court. 5 A sentence four remand is immediately appealable to the Sixth Circuit,
but a sentence six remand obviously is not since it is not a final judgment.
Also unlike a sentence four remand, a sentence six remand “is not a sufficient
basis for a litigant to claim ‘prevailing party’ status.” Id.; see also Scales v. Astrue, Case
No. 1:10-cv-267, 2012 WL 628407 (S.D. Ohio Feb. 27, 2012). Therefore, a litigant who
obtains a sentence six remand must obtain success during subsequent administrative
proceedings in order to claim “prevailing party” status for purposes of the EAJA, 6 and
may be required to append the record of subsequent administrative proceedings in
order for this Court to determine whether the Commissioner’s position in those
proceedings was “substantially justified” under the EAJA.
III. Conclusion and Recommendation
Under sentence four, this Court may reverse and direct an immediate award of
benefits, or simply direct the Commissioner to reconsider the evidence to correct factual
and/or legal error. Because a sentence six remand is pre-judgment, remand under that
provision requires a new hearing. Even if remand was directed only under sentence
four, the above discussion should make clear that this is not a case in which remand for
an immediate award of benefits is appropriate.
5
In addition to an EAJA award for a remand under sentence four, Rule 406(b) under the Social Security
Act itself authorizes a motion for an additional fee award should the Plaintiff be granted benefits following
remand. Because such motions often are not filed for years after a case is closed in this Court,
presenting jurisdictional issues, this Court recently adopted a rule of equitable tolling under Rule 54(d)(2)
to hold that a Rule 406(b) motion filed within 14 days of Notice of an award will be considered timely. See
Proctor v. Com’r of Soc. Sec., Case No. 1:09-cv-127, WL (Feb. 19, 2013).
6
The EAJA provides for a fee award only for fees incurred in a “civil action,” generally construed as time
spent in federal court. See 28 U.S.C. §2412(d)(1)(A). Time spent in administrative proceedings ordinarily
is compensated under different provisions of the Social Security Act itself, rather than under the EAJA,
see 42 U.S.C. §406(a) and (b). An exception exists for time spent in administrative proceedings after a
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Accordingly, IT IS RECOMMENDED THAT:
1.
The decision of the Commissioner to deny Plaintiff SSI benefits be
REVERSED because it is not supported by substantial evidence in the record as a
whole;
2.
This case should be remanded pre-judgment under sentence six for
consideration of new and material evidence not previously presented, as well as for
reconsideration of the additional errors discussed herein.
Regardless of the
administrative status of this case, the Court will retain jurisdiction until following the
entry of judgment after remand;
3. Should the presiding district court decline to remand under sentence six, this
case alternatively should be remanded post-judgment pursuant to sentence four for
reconsideration of the evidence in light of the errors noted, but without consideration of
new evidence not previously considered by the ALJ.
/s Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
sentence six remand, based upon the continuing jurisdiction of this Court under sentence six.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TAMMY SUTTLES,
Case No. 1:12-cv-658
Plaintiff,
Spiegel, J.
Bowman, M.J.
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.
Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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