Randall v. Social Security Administration, Commissioner of
Filing
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MEMORANDUM AND ORDER: At this juncture, the plaintiff is disabled under the express findings of the ALJ and the vocational evidence. Accordingly, the Commissioners Unilateral Motion for Remand [Doc. 13] is respectfully DENIED. The p laintiffs Motion for Judgment on the Pleadings [Doc. 12] is GRANTED. The plaintiff is entitled under the facts found by the Commissioner to an award of benefits. The Clerk is DIRECTED to enter judgment accordingly. See order for details. Signed by Magistrate Judge Dennis H Inman on 5/23/2014. (RLC, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
DEWAYNE EARL RANDALL
V.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
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NO. 2:13-CV-184
MEMORANDUM AND ORDER
This matter is before the Court, pursuant to 28 U.S.C. § 636, and the consent of the
parties, for entry of final judgment. Plaintiff filed a Motion for Judgment on the Pleadings
[Doc. 11]. The Commissioner has filed a Unilateral Motion for Remand Pursuant to
Sentence Four of 42 U.S.C. § 405(g) [Doc. 13]. The plaintiff has filed a Response [Doc. 14]
opposing the remand request. The Commissioner has filed a “Response”, i.e., a Reply [Doc.
16] continuing to request the remand.
The sole function of this Court in making this review is to determine whether the
findings of the Commissioner are supported by substantial evidence in the record.
McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988).
“Substantial evidence” is defined as evidence that a reasonable mind might accept as
adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971).
It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the
conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime
Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve
conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues
differently, the Commissioner’s decision must stand if supported by substantial evidence.
Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988).
Yet, even if supported by substantial evidence, “a decision of the Commissioner will not be
upheld where the SSA fails to follow its own regulations and where that error prejudices a
claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm’r of
Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).
The plaintiff was 46 years of age at the time of the adverse decision by the
Administrative Law Judge [“ALJ”]. He has a high school education and past relevant work
experience as a truck driver, classified as semi-skilled and medium in exertion.
Plaintiff asserts, and the ALJ found, that he has severe impairments of coronary artery
disease with stent placement; cervical degenerative disc disease; bipolar disorder; and post
traumatic stress disorder. (Tr. 14).
To cut to the proverbial chase, the only issue in this case is that in his first
hypothetical question to the vocational expert [“VE”], the ALJ asked her to assume the
following:
Assume sedentary work. No climbing ladders, ropes, or scaffolds. No more than
occasional climbing ramps and stairs. Mentally assume that he can perform and
maintain concentration for simple, routine, repetitive tasks. Adapt to gradual and
infrequent changes in a work setting, and that he is limited to jobs that don’t require
public interaction or more than occasional interaction with coworkers and
supervisors.”
(Tr. 41).
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In response to that first hypothetical question, she responded that there were a
significant number of jobs. (Tr. 41-42). The ALJ’s second hypothetical question asked the
vocational expert to “assume all the same limits as hypo one but add to that no more than
occasional fine manipulation with the upper extremities.” The VE responded that “the
numbers would be negligible...” and that “virtually all sedentary work would require a person
to frequently do fine manipulation with at least one upper extremity.” (Tr. 42). Thus, a
substantial number of jobs would not exist for a person with that additional impairment.
In his hearing decision, the ALJ, at the “step four” finding of plaintiff’s residual
functional capacity [“RFC”], in addition to the other findings set out in the first hypothetical
question set out above, found that “the plaintiff can perform only occasional fingering
with his upper extremities.” (Tr. 15).
Obviously, according to the VE’s testimony, this would mean that the plaintiff could
not perform a substantial number of jobs and is disabled, since there is no substantial
evidence to underpin the ALJ’s finding that there were a substantial number of jobs.
Plaintiff filed the present action, and after his Motion for Judgment on the Pleadings
was filed, the Commissioner filed her Unilateral Motion to Remand. The Motion to Remand
requests a new hearing at which “the ALJ will ... re-evaluate all the medical evidence,
including all of the opinion evidence and explain the weight given to the opinions...; reevaluate Plaintiff’s credibility...; re-evaluate Plaintiff’s residual functional capacity along
with providing a bridge between the evidence and the residual functional capacity; and obtain
supplemental vocational expert testimony....” [Doc. 13, pg. 2].
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Plaintiff’s response states that all of these things were done the first go around, and
that the ALJ fatally erred in finding there were jobs the plaintiff could perform with the RFC
found by him because the VE had testified there were not a significant number of jobs which
a person with the RFC set out in hearing decision could perform.
In her response to this arguement, the Commissioner does not suggest or even imply
that the ALJ had, in effect, made a “scrivener’s error” by including in his RFC finding the
inability to do more than occasional fine manipulation with the upper extremities. Instead,
the Commissioner restates the reasons for a remand set forth in their Unilateral Motion
described above. Then she asserts that there are “several factual issues” which she, and not
the Court, must resolve before the ultimate issue of the plaintiff’s entitlement to benefits can
be addressed. Correctly, she states that judicial review “is strictly limited to an inquiry into
whether the Commissioner’s findings were supported by substantial evidence,” quoting
Faucher v. Sec’y of Health and Human Services, 17 F.3d 171 (6th Cir. 1994). Faucher
ultimately held that “when the Secretary misapplies the regulations or when there is not
substantial evidence to support one of the ALJ’s factual findings and his decision therefore
must be reversed, the appropriate remedy is not to award benefits. The case can be remanded
under sentence four of 42 U.S.C. § 405(g) for further consideration.” Id., at 175-76.
In the opinion of the Court, Faucher, and the other cases cited by the Commissioner
deal with what should occur when the Commissioner makes an error in applying the law or
in making a finding devoid of substantial evidence to the claimant’s detriment which results
in the denial of benefits. Here, the ALJ made a finding of fact that the plaintiff was severely
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limited in using his upper extremities for manipulation. Here, the VE stated that with that
limitation, a substantial number of jobs did not exist. There is no remaining fact to be
resolved. The factual finding of the plaintiff’s RFC has been made and it is supported by
substantial evidence. While there is no evidence to support the determination that a
substantial number of jobs exist, the only evidence which does exist says there are no jobs
for a person with all of the impairments found by the ALJ. The case has been fully
adjudicated at the administrative level save for this error, and a remand to correct it would
allow the Commissioner to find the plaintiff less restricted than he has already been found
to be.
At this juncture, the plaintiff is disabled under the express findings of the ALJ and the
vocational evidence. Accordingly, the Commissioner’s Unilateral Motion for Remand [Doc.
13] is respectfully DENIED. The plaintiff’s Motion for Judgment on the Pleadings [Doc. 12]
is GRANTED. The plaintiff is entitled under the facts found by the Commissioner to an
award of benefits. The Clerk is DIRECTED to enter judgment accordingly.
SO ORDERED:
s/ Dennis H. Inman
UNITED STATES MAGISTRATE JUDGE
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