Hernandez v. Commissioner of Social Security

Filing 29

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. # 26 ); OVERRULING DEFENDANTS OBJECTION TO DUAL BASIS REMAND (DOC. # 28 ); COMMISSIONER'S NON-DISABILITY FINDING VACATED AND NO FINDING MADE AS TO WHE THER PLAINTIFF WAS UNDER A DISABILITY; CASE REMANDED TO SOCIAL SECURITY ADMINISTRATION UNDER SENTENCE FOUR AND SENTENCE SIX OF 42 U. S. C. § 405(g) FOR FURTHER CONSIDERATION CONSISTENT WITH THE REPORT AND RECOMMENDATIONS; CAPTIONED CAUSE IS TO BE ADMINISTRATIVELY PROCESSED DURING THE PENDENCY OF THE REMAND; TERMINATION ENTRY. Signed by Judge Walter H. Rice on 9/13/22. (pb)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

GAIL S. o/b/o ANTHONY H.,
Plaintiff,

CaseNo. 3:17-CV-00419
JUDGE WALTER H. RICE

vs.

KILOLO KUAKAZI,
Acting Commissioner of the
Social Security Administration,
Defendant.

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS

OF UNITED STATES MAGISTRATE JUDGE (DOC. #26); OVERRULING
DEFENDANTS OBJECTION TO DUAL BASIS REMAND (DOC. #28);
COMMISSIONER'S NON-DISABILITY FINDING VACATED AND NO
FINDING MADE AS TO WHETHER PLAINTIFF WAS UNDER A
DISABILITY; CASE REMANDED TO SOCIAL SECURITY
ADMINISTRATION UNDER SENTENCE FOUR AND SENTENCE SIX OF

42 U. S. C. § 405(g) FOR FURTHER CONSIDERATION CONSISTENT WITH
THE REPORT AND RECOMMENDATIONS; CAPTIONED CAUSE IS TO BE

ADMINISTRATIVELY PROCESSED DURING THE PENDENCY OF THE
REMAND; TERMINATION ENTRY

Gail S., prose and on behalf of her deceased son, Anthony H., has brought
this action pursuant to 42 U. S. C. § 405(g), seeking judicial review of a decision of
Defendant, Kilolo Kijakazi, Acting Commissioner of the Social Security
Administration ("Defendant Commissioner"), denying her son's application for

Disability Insurance Benefits and Supplemental Security Income benefits. By way

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of background, Anthony H., pro se, filed his application for benefits on December
31, 2012. Doc. #6, PagelD#80. A hearing was held on July 28, 2014, and an
Administrative LawJudge ("ALJ") concluded he was not eligible for Social
Security benefits since he was not under a disability. Doc. #6, PagelD##77-90.

Following an appeal and a denial by the Appeals Council, this lawsuit wasfiled.
On September 26, 2019, the Court vacated the non-disability finding, made no
finding as to disability and remanded the case to Defendant Commissioner
pursuant to Sentence Six of 42 U. S. C. § 405(g). Doc. #14.
On June 16, 2020, another hearing was held before a different ALJ and on

July 7, 2021, a decision was issued concluding that Anthony H. was not under a
disability as defined in the Social Security Act. Doc. #18-2, PagelD##649-659. The
case was reopened and on December 3, 2021, a Suggestion of Death was filed as
to Anthony H., Doc. #20, and later a Motion to Intervene was filed by his mother,
Gail S. ("Intervenor Plaintiff"). Doc. #22. On January 14, 2022, the Court sustained
the Motion to Intervene and on January 27, 2022, a Statement of Errors, Doc. #23,
was filed and a response in opposition was filed by Defendant Commissioner.
Doc. #25.

On July 13, 2022, United States Magistrate Judge Caroline H. Gentry filed a

Report and Recommendations. Doc. #26. She recommended: (1) the Statement of
Errors, Doc. #23, be granted; (2) the Court vacate the non-disability determination;

(3) no finding be made as to whether Anthony H. was under a "disability" within
the meaning of the Social Security Act; (4) the matter be remanded to the Social

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Security Administration under Sentence Four and Sentence Six of 42 U. S. C.

§ 405(g) for further consideration consistent with this Report and any Decision and
Entry adopting this Report and Recommendations; and (5) that the case be
administratively processed, but not terminated, on the Court's docket. Doc. #26,
PagelD#2694-2695.

On August 1, 2022, Defendant Commissioner filed a "limited objection" to
the Magistrate Judge's recommendation of a "dual basis" remand. Doc. #28,
PagelD#2700. Specifically, she argued a remand should occur under Sentence
Four of 42 U. S. C. § 405(g) and not under Sentence Four and Sentence Six. She
asserted that a "dual basis" remand is not the "preferred remedy" in the Sixth

Circuit pursuant to Faucher v. Secretary of Health and Human Services, 17 F. 3d
171 (6th Cir. 1994), and urged the Court to adopt "the Faucher approach because it

is binding authority in this case. " Doc. #28, PagelD#2701. She further contended a
Sentence Four remand is preferable because it would allow the same evidence as
a Sentence Six remand and the "unusual nature" of a dual basis remand may be

difficult to implement in a pro se situation and could result in further delay of
Plaintiff's case. Id. PagelD##2700-2701.

Based on this Court's reading of Faucher, as well as the reasoning in the

Magistrate Judge's Report and Recommendations, the Court overrules the
Defendant Commissioner's limited objection. Doc. #28.

In Faucher, the magistrate judge issued a report and recommendation

finding the ALJ had presented an inadequate hypothetical question that omitted

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evidence of the plaintiff's obesity and mental impairment. Id., at 172. Because of
this omission, the vocational expert's response could not be used to satisfy the

defendant's burden of showing a sufficient number of jobs existed in the national
economy that the plaintiff could perform thereby rendering him not disabled. Id.
at 172. The magistrate judge also determined that under Sentence Four he could
not remand the case because it would require taking in new medical evidence and
a remand was also not possible under Sentence Six since the plaintiff had not

shown that "good cause" existed for admitting "new evidence which is material
as required by § 405(g). Id., at 173. For these reasons, the magistrate judge
recommended that the district court award benefits to the plaintiff pursuant to
Sentence Four and reasoned that the defendant could terminate benefits under 42

U. S. C. § 423(f) if it later showed the plaintiff was capable of a limited range of
employment Id. The district court adopted the report and recommendation
without opinion.

The issue in Faucher, as stated by the Court of Appeals was "... what a
district court should do once a determination is made that an ALJ erroneously

applied the regulations and the Secretary's denial of benefits therefore must be
reversed. " Id. at 173. Although it found that the regulations were misapplied in

Faucherbecause the hypothetical question omitted the necessary evidence of the
plaintiff's medical and emotional condition, it reversed the award of benefits
because the evidence of disability was conflicting. It further held that the case
should be remanded under Sentence Four for further consideration of the new

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evidence concerning the plaintiff's physical and emotional impairment. Id. at 176.
Faucher^\6 not involve a Sentence Six remand.
Unlike Faucher, the case before this Court concerns both a Sentence Four

and a Sentence Six remand. The Report and Recommendation stated that a
reversal was required under Sentence Four because the ALJ violated certain

Social Security rules and regulations. These violations occurred when the ALJ
failed to address the medical opinions of Dr. Bernard Rose, did not evaluate the
limitations identified by Dr. Amita Oza, Doc. #26, PagelD##2675-2681, and did not
consider possible reasons for Anthony H. 's failure to comply or seek treatment or

inquire why Plaintiff was non-compliant or did not seek treatment. Id.,
PagelD##2681-2685. The Magistrate Judge also found violations by the ALJ
requiring a reversal under Sentence Four based on Plaintiff's alcoholism. The
filing stated the ALJ violated the Social Security rules and regulations by not
considering Anthony H. 's "hospitalizations or complications" when he determined
his Residual Functional Capacity ("RFC") Id., PagelD#2688, and by not applying

"the correct legal standard for evaluating" his alcoholism. Id., PagelD#2689. The
Report and Recommendations also found that a Sentence Six remand was
required. 1 The Magistrate Judge stated that the Statement of Errors asserted,

1 Although the plaintiff bears the burden of requesting a Sentence Six remand under

§ 405(g), Alien v. Comm'rofSoc. See., 561 F.3d 646, 653 (6th Cir. 2009), and Gail S. failed
to do so, she \s prose and her pleadings are "liberally construed" and "held to less
stringent standards than formal pleadings drafted by lawyers. " Erickson v. Pardus, 551
U. S. 89 127 (2007).

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among other things, "alleged inaccuracies" in Anthony H. 's medical records and
included a copy of his death certificate which the "ALJ did not have the
"opportunity to review. " Id., PagelD##2691-2692.2

The Court agrees with Defendant Commissioner that Faucher\s controlling
when a Sentence Four remand results in the introduction of new evidence. Griffith

v. Commissioner of Socfa/Security. 987 F. 3d 556 (6th Cir. 2021) (". . . there is Sixth

Circuit precedent stating that a sentence four remand does not preclude the
introduction of new evidence in front of the ALJ. "). Here, however, there is a clear

factual andlegal basis forboth a-Sentence-RTaT-and-^Sentence-SDTTerTTand.
Although the basis for each remand may be confusing to the pro se Intervenor
Plaintiff, a remand only under Sentence Four, as was done in Faucher, "also takes

away from claimants.. . some of the benefits of a sentence-six remand. " Jackson
v. Charter, 99 F. 3d 1086, 1094, n. 3 (11th Cir. 1996). This is because a Sentence
Four remand is a post-judgment remand requiring the Court to relinquish its

jurisdiction and a remand under Sentence Six pursuant to 42 U. S. C. § 405(g) is a
pre-judgment remand where the Court retains jurisdiction. Id. Because it is a pre-

judgment remand, the Court may have the opportunity to consider any additional
or modified findings of fact and to review the transcript of the proceedings

thereby acting as a check on the Commissioner Defendant. Melkonyan v. Sullivan,
2 Although Anthony H.'s death certificate stated that Hepatitis C was a "significant
condition" contributing to his death, the Statement of Errors asserted that despite this

finding, test results confirming her son suffered from this disease cannot be located. Doc.
#23, PagetD##2577-2580. Since her son's death, Intervenor Plaintiff, a caregiverfor her
son, has been tested and been diagnosedwith Hepatitis C. Id.

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501 U. S. 89, 98 (1991).

Accordingly, the Court ADOPTS the Report and Recommendations of the
Magistrate Judge, Doc. #26, and OVERRULES Defendant Commissioner's
Objection, Doc. #28, to the Report and Recommendations. The Statement of
Errors, Doc. #23, of the Intervenor Plaintiff is SUSTAINED, the Commissioner's

non-disability finding is vacated, no finding is made as to whether Anthony H. is
under a disability and the case is remanded to the Commissioner, pursuant to
Sentence Four and Sentence Six of 42 U. S. C. § 405(g), consistent with the Report
and Recommendations and this Decision and Entry adopting said Report and
Recommendations.

The captioned cause is hereby ordered administratively processed and thus
terminated upon the docket records of the United States District Court for the
Southern District of Ohio, Western Division, at Dayton, during the pendency of the
remand.

September 13, 2022

^c^r^r ^. s'

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT