Rivera et al

Filing 14

OPINION AND ORDER granting 12 MOTION for Judgment filed by Commissioner of Social Security. Signed by Judge Salvador E Casellas on 9/8/2009.(THD)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO A N A M. RIVERA * * P la in tif f * * v. * * C O M M IS S IO N E R OF SOCIAL * S E C U R IT Y * * D efendant * ***********************************

Civil No. 09-1362 (SEC)

O P I N I O N AND ORDER T h is is an action brought under 42 U.S.C. § 405(g), the "Social Security Act." Plaintiff seeks review of the Commissioner of Social Security's ("the Commissioner") denial o f social security benefits (Docket # 1). The Commissioner of the Social Security A d m in is tra tio n ("SSA") filed a Memorandum of Law (Docket # 11) requesting an order and judgm ent reversing and remanding this matter to the Commissioner for further administrative re v i e w . After reviewing the parties' filings, and the applicable law, the Commissioner's p e titio n shall be GRANTED, and this case is REVERSED and REMANDED for further p ro c e e d in g s . Factual and Procedural Background Ana Rivera ("Plaintiff") is a woman of approximately 39 years of age, who allegedly s u f f e rs from mental health issues. She has a grade school education, and past work e x p e rie n c e as a janitor, security guard, and construction worker. Docket # 9 at 2. Her claim f o r disability benefits based on her psychological problems was denied initially on July 19, 2005, after reconsideration on August 2, 2006, and again after a hearing before an a d m in is tra tiv e law judge on November 28, 2007. Id. The Appeals Council denied Plaintiff's re q u e s t for review, which led to the present complaint filed April 17, 2009. Plaintiff alleges th a t the Commissioner did not formulate his final conclusion regarding her case on s u b s ta n tia l evidence, ant that the Administrative Law Judge made errors of law. After a n s w e rin g , the Commissioner has petitioned this Court for reversal and remand in order for

C iv il No. 09-1362 (SEC) th e Appeals Council to consider the case anew. Standard of Review

2

T h e scope of our judicial review of a Commissioner's final decision is limited both b y statute and case law. See 42 U.S.C. §405(g). T o establish entitlem e n t to disability b e n e f its , the burden is on the claimant to prove that he is disabled within the meaning of the S o c ia l Security Act. See Bowen v. Yuckert, 482 U.S. 137, 146-47, n.5 (1987). It is well s e ttle d law that a claimant is disabled under the Social Security Act if he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental im p a irm e n t which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(a). G o o d e rm o te v. S.H.H.S., 690 F.2d 5, 6-7 (1st Cir. 1982). If the claimant meets this burden, th e n it is the Secretary's burden to show that there are other jobs in the national economy that th e claimant can perform, notwithstanding his disability. Id.; see also, Torres v. Secretary of H . H. S., 677 F. 2d 167, 168 (1st Cir. 1982); González-Alemán v. Secretary of H.H.S., 86 F. 3 d 1146, 1996 U.S. App. LEXIS 11655 (1 st Cir. 1996). F u rth e rm o re , "[i]n cases reviewing final agency decisions on Social Security benefits, th e exclusive methods by which district courts may remand to the Secretary are set forth in s e n te n c e four and sentence six of § 405(g) . . ." Shalala v. Schaefer, 509 U.S. 292, 113 S. Ct. 2 6 2 5 , 2629 (1993). Sentence four allows for the district court to " . . . enter, upon the p le a d in g s and transcript of the record, a judgment affirming, modifying, or reversing the d e c is io n of the Secretary, with or without remanding the cause for a rehearing . . ." On the o th e r hand, Shalala held that "[s]entence-six remands may be ordered in only two situations: w h e re the Secretary requests a remand before answering the complaint, or where new, m a te ria l evidence is adduced that was for good cause not presented before the agency." S h a la la , 509 U.S. at 297, n. 2. Accordingly, depending on the circumstances, a district court m a y either come to a final decision regarding the merits of a petitioner's claim, or remand u n d e r either sentences four or six of § 405(g).

C iv il No. 09-1362 (SEC) A p p lic a b le Law and Analysis

3

T h e Supreme Court in Shalala held that a remand pursuant to sentence four of § 4 0 5 (g ) of the Social Security Act is a final judgment for purposes of the Equal Access to J u s tic e Act. Sentence six does not necessarily constitute final judgment, but is only available b e f o re the Commissioner answers, or if new evidence come to surface. This Court notes that th e Commissioner answered the complaint on June 26, 2009 (Docket # 7), prompting P la in tif f to file her Memorandum of Law on August, 7, 2009 (Docket # 9). The C o m m is s io n e r now seeks remand in order for "the Appeals Council [to] consider the e v id e n c e contained in Plaintiff's subsequently allowed claim for disability benefits and d e te rm in e what effect, if any, such evidence has on the instant case in accordance with H A L L E X I-5-3-17, Section III(B)." See Docket # 13 at 3. This suggests that a sentence six re m a n d would be possible. Nevertheless, the petition is under sentence four, which would c o n s titu te a final judgment in favor of Plaintiff. Rivera Baez v. Secretary of Health and H u m a n Services, 832 F. Supp. 28 (D.P.R. 1993). Accordingly, this remand will be c o n s id e re d under sentence four of § 405(g), and Plaintiff will be eligible for attorney's fees u n d e r the Equal Access to Justice Act. Conclusion In light of the above, this case is hereby REVERSED and REMANDED for further d e v e lo p m e n t and consideration of the record. Judgment shall be entered accordingly. S O ORDERED. In San Juan, Puerto Rico, this 8th day of September, 2009. S / Salvador E. Casellas SALVADOR E. CASELLAS U .S . SENIOR DISTRICT JUDGE