Haywood v. Commissioner of Social Security

Filing 33

ORDER Reversing the Decision of Commissioner and Remanding Pursuant to Sentence Four of 42 U.S.C. Section 405(g). Signed by Magistrate Judge Charmiane G. Claxton on 2/16/2017. (Claxton, Charmiane)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

BRENDA BROWN,
Plaintiff,
v.

Case 1:13-cv-01242-cgc

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

ORDER REVERSING THE DECISION OF COMMISSIONER AND REMANDING
PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g)

Lisa Lynn Haywood (“Haywood”) filed this action to obtain judicial review of her application
for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social
Security Act (“Act”), 42 U.S.C. §§ 401-434 and supplemental security income (“SSI”) under Title
XVI of the Act, 42 U.S.C. §§ 1381-1385. By consent of the parties, this case has been referred to
the United States Magistrate Judge to conduct all proceedings and order the entry of a final judgment
in accordance with 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure.
Haywood filed her application on September 28, 2009. Her claims were denied initially and
upon reconsideration. A hearing was held on July 13, 2012 before an Administrative Law Judge
(“ALJ”). On March 2, 2012, the ALJ found that Haywood was not disabled under the Act. The
Appeals Council then denied Haywood’s request for review. Thus, the ALJ’s decision became the
Commissioner’s final decision.

Haywood then filed this action requesting reversal of the
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Commissioner’s decision.
On January 15, 2014, a Suggestion of Death was filed with this Court stating that Haywood
died on December 19, 2013, that she was survived by two minor children, and that, in accordance
with 20 C.F.R. § 416.542(b), this claim may not be extinguished. On March 5, 2014, the District
Court granted Plaintiff’s motion to substitute Brenda Brown as the Plaintiff.
For the reasons set forth herein, the decision of the Commissioner is REVERSED, and the
action is REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g) for a reevaluation of Dr.
Cran-Carty and Dr. Smithson’s medical source opinions and for consideration of the new and
material evidence contained in Exhibit 23F.
Pursuant to 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision
made by the Commissioner after a hearing to which she was a party. “The court shall have the power
to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without remanding the cause
for a rehearing.” Id. The court's review is limited to determining whether or not there is substantial
evidence to support the Commissioner's decision, 42 U.S.C. § 405(g); Wyatt v. Secretary of Health
& Human Services, 974 F.2d 680, 683 (6th Cir.1992); Cohen v. Secretary of Health & Human
Services., 964 F.2d 524, 528 (6th Cir.1992), and whether the correct legal standards were applied,
Landsaw v. Secretary of Health & Human Servs., 803 F.2d 211, 213 (6th Cir.1986).
The Commissioner, not the court, is charged with the duty to weigh the evidence, to make
credibility determinations and resolve material conflicts in the testimony, and to decide the case
accordingly. See Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990); Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984). When substantial evidence supports the Commissioner's determination,
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it is conclusive, even if substantial evidence also supports the opposite conclusion. Mullen v. Bowen,
800 F.2d 535, 545 (6th Cir. 1986).
Plaintiff was born on January 29, 1967 and was forty-one-years old on the alleged disability
onset date of January 18, 2009. (R. at 14, 23). She has at least a high school education and is able
to communicate in English. (R. at 23). She has past relevant work as a licensed practical nurse, a
fast food worker, a food service worker, and a home attendant. (R. at 23).
The ALJ determined as follows: (1) the claimant meets the insured status requirements of the
Act through December 31, 2013; (2) the claimant has not engaged in substantial gainful activity
since January 18, 2009, which is the alleged onset date; (3) the claimant has the following severe
impairments: seizure disorder; cerebrovascular accident; hypertension; degenerative disc disease;
tears of the distal supraspinatus tendon in the bilateral shoulders; chronic obstructive pulmonary
disease (“COPD”); and, anxiety; (4) the claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (5) after careful consideration of the entire record, the claimant is
found to have the residual functional capacity (“RFC”) to lift and carry twenty pounds occasionally
and ten pounds frequently; can sit, stand, or walk for six hours in an eight hour workday with normal
breaks; can occasionally push or pull with the bilateral upper extremities; no overhead reaching with
the right upper extremity; occasional overhead reaching with the left upper extremity; occasional
climbing of ramps or stairs and no climbing of ladders/ropes/scaffolds; occasional balancing or
crawling; no work in a setting which requires driving motorized vehicles; no work around
unprotected heights and moving machinery; no work around pulmonary irritants and temperature
extremes; ability to understand, remember, and carry out one, two and three step instructions; can
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maintain concentration and attention for at least two hour periods of time; can interact appropriately
with coworkers and supervisors, but only occasional interaction with the public; and, can tolerate
no more than occasional changes in the work environment or duties; (6) the claimant is unable to
perform any past relevant work; (7) transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has transferrable job skills; (8) considering
the claimant’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that the claimant can perform; and, (9) the claimant has not been
under a disability, as defined by the Act, from January 18, 2009 through the date of the ALJ’s
decision. (R. at 16-25).
The Act defines disability as the inability to engage in substantial gainful activity. 42 U.S.C.
§ 423(d)(1). The claimant bears the ultimate burden of establishing an entitlement to benefits. Born
v. Secretary of Health & Human Services., 923 F.2d 1168, 1174 (6th Cir.1990). The initial burden
of going forward is on the claimant to show that she is disabled from engaging in her former
employment; the burden of going forward then shifts to the Commissioner to demonstrate the
existence of available employment compatible with the claimant's disability and background. Id.
The Commissioner conducts the following, five-step analysis to determine if an individual
is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be found to
be disabled regardless of medical findings.
2. An individual who does not have a severe impairment will not be found to be
disabled.
3. A finding of disability will be made without consideration of vocational factors,
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if an individual is not working and is suffering from a severe impairment which
meets the duration requirement and which meets or equals a listed impairment in
Appendix 1 to Subpart P of the regulations.1
4. An individual who can perform work that he or she has done in the past will not
be found to be disabled.
5. If an individual cannot perform his or her past work, other factors including age,
education, past work experience and RFC must be considered to determine if other
work can be performed.
Willbanks v. Secretary of Health & Human Services, 847 F.2d 301 (6th Cir. 1988). Further review
is not necessary if it is determined that an individual is not disabled at any point in this sequential
analysis. 20 C.F.R. §§ 404.1520 & 416.920.
Here, the sequential analysis proceeded to the fifth step. At step five of the inquiry, “the
burden shifts to the Commissioner to identify a significant number of jobs in the economy that
accommodate the claimant’s RFC . . . and vocational profile.” Jones v. Commissioner of Social
Security, 336 F.3d 469, 474 (6th Cir. 2003). Ultimately, the ALJ found that Plaintiff is capable of
making an adjustment to other work that exists in significant numbers in the national economy, and,
therefore, was not disabled within the meaning of the Act.
On appeal to this Court, Plaintiff asserts that the ALJ’s decision was not supported by
substantial evidence for two reasons. First, Plaintiff argues that the ALJ erred in according “little
weight” to the opinion from her treating physician, Dr. Wendy Cran-Cardy (“Dr. Cran-Cardy”).
Second, Plaintiff claims that the ALJ erred in according “little weight” to the opinion of her
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Before then proceeding to step four of the sequential evaluation process, the ALJ must
determine the claimant’s RFC pursuant to 20 C.F.R. § 404.1520(e) and § 416.920(e). An
individual’s RFC is his or her ability to do physical and mental work activities on a sustained
basis despite limitations from his or her impairments. In making this finding, the undersigned
must consider all of the claimant’s impairments, including impairments that are not severe
pursuant to 20 C.F.R. §§ 404.1520(e), 404.1545, 416.920(e) & 416.945.
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psychological examiner, Dr. Gary Smithson (“Dr. Smithson”), on the basis of insufficient treatment
notes in the record. Plaintiff further asserts that the ALJ erred in failing to consider additional
reports that she submitted while the record remained open post-hearing and that the ALJ incorrectly
determined that the other work of which she is capable due to her RFC exists in significant numbers
in the national economy.
I. Medical Source Opinion Evidence
Plaintiff argues that the ALJ erred in weighing the medical source opinion evidence in the
record in crafting her RFC. The ALJ’s assessment of medical source opinions must follow 20 C.F.R.
§ 404.1527(c) and § 416.927(c), which contain six factors. First, the ALJ must examine the
relationship between the patient and medical professional, as more weight is accorded to an
examining source. 20 C.F.R. §§ 404.1527(c)(1) & 416.927(c)(1).
Second, the ALJ must consider whether the medical professional actually treated the patient,
as “these sources are likely to be the medical professionals most able to provide a detailed,
longitudinal picture of [her] medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone or from reports
of individual examinations, such as consultative examinations or brief hospitalizations.” 20 C.F.R.
§§ 404.1527(c)(2) & 416.927(c)(2). If a treating source’s opinion on the nature and severity of the
impairment(s) is “well supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [a claimant’s] case record,
[the ALJ] will give it controlling weight.” 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). If a
treating source’s opinion is not given controlling weight, the ALJ must consider the length of the
treatment relationship and the frequency of examination along with the nature and extent of the
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treatment relationship to determine if his or her opinion should be given more weight than a
nontreating source. 20 C.F.R. §§ 404.1527(c)(2), (c)(2)(I)-(ii), 416.927(c)(2) & 416.927(c)(2)(I)(ii). The ALJ must “always give good reasons” in the notice of determination or decision for the
weight given to a treating source’s opinion. 20 C.F.R. § 404.1527(c)(2) & 416.927(c)(2).
Third, the ALJ must consider the amount of relevant evidence the medical source provides
to support the opinion, particularly medical signs and laboratory findings, to determine the amount
of weight to be given to the opinion. 20 C.F.R. §§ 404.1527(c)(3) & 416.927(c)(3). As to
nontreating sources, the weight accorded to their opinions will “depend on the degree to which they
provide supporting explanations for their opinions.” Id. The ALJ must also “evaluate the degree
to which these opinions consider all of the pertinent evidence in [the] claim, including opinions of
treating and other examining sources.” Id.
Fourth, the ALJ must consider the consistency of the opinion, as the more consistent an
opinion is with the record as a whole, the more weight it will be given. 20 C.F.R. §§ 404.1527(c)(4)
& 416.927(c)(4). Fifth, the ALJ generally gives more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to an opinion of a source who is not a
specialist. 20 C.F.R. §§ 404.1527(c)(5) & 416.927(c)(5). Sixth, the ALJ will consider any factors
the claimant or others bring to his or her attention, or of which he or she is aware, which tend to
support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(6) & 416.927(c)(6).
A. Dr. Cran-Carty
The ALJ considered Dr. Cran-Carty’s opinion in her determination of Plaintiff’s RFC. (R.
at 22). She correctly found that Dr. Cran-Carty was Plaintiff’s treating physician. (Id.) In
determining that her opinion should be given “little weight” instead of “controlling weight,” the ALJ
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noted that Plaintiff had only recently begun treatment with this provider, which does address the
length of treatment relationship. (Id.). The ALJ also noted that Dr. Cran-Carty’s opinion “appears
to be based largely on the claimant’s subjective complaints rather than on a long-standing treatment
relationship including objective medical testing.” (Id.) This statement briefly addresses the nature
of the treatment relationship; however it does not address the frequency or extent of the treatment
relationship as required.

See 20 C.F.R. §§ 404.1527(c)(2), (c)(2)(I)-(ii), 416.927(c)(2) &

416.927(c)(2)(I)-(ii).
The ALJ further did not address the amount of relevant evidence the medical source provides
to support the opinion, particularly medical signs and laboratory findings. A review of Dr. CranCarty’s notes mention her reliance on cervical and lumbar MRIs as the basis for her proposed
limitations. (R. at 800, 807). Her treatment notes also contain results of laboratory testing, radiology
reports, and trigger point injections. (R. at 794-806). The ALJ stated that Dr. Cran-Carty’s opinion
“is not fully supported by the objective evidence, the treatment notes . . ., or the medical evidence
of record as a whole”; however, the ALJ did not elaborate on how Dr. Cran-Carty’s opinions were
inconsistent with the record or not supported by it. While the Commissioner posits that these records
do not support Dr. Cran-Carty’s limitations, such a decision is reserved for the ALJ, who must
provide “good reasons” for determining that a treating physician’s opinion is not entitled to
controlling weight. The ALJ’s brief consideration of Dr. Cran-Cardy’s opinions without any
discussion on several required factors is insufficient.
Accordingly, the Court concludes that the ALJ erred in weighing the medical source opinion
testimony of Dr. Cran-Carty. Thus, the decision of the Commissioner is hereby REVERSED, and
REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g) for the ALJ to reconsider Dr. Cran8

Carty’s medical source opinions under 20 C.F.R. § 404.1527(c) and § 416.927(c) in crafting
Plaintiff’s RFC. The ALJ should further review any portions of the record which may be weighed
differently in view of the reevaluation of Dr. Cran-Carty’s opinions. If the ALJ determines that
Plaintiff’s RFC should be adjusted upon reevaluation, the ALJ should additionally reconsider Step
Five of the sequential analysis.
B. Dr. Smithson
Next, the ALJ considered Dr. Gary Smithson’s opinion in her determination of Plaintiff’s
RFC. The ALJ correctly noted that Dr. Smithson conducted a psychological examination of
Plaintiff. (R. at 665-671).
With respect to the consistency of Dr. Smithson’s opinions with the record as a whole, the
ALJ stated that the “record contains no treatment notes which would substantiate such a limited level
of functioning.” (R. at 23). Plaintiff does not raise any argument as to materials that were contained
in the record that the ALJ did not consider. Thus, the Court does not find that the ALJ erred in this
finding. However, Plaintiff does contend that she attempted to provide additional records from the
Carey Counseling Center that were inadvertently not made part of the record and would have
supported Dr. Smithson’s conclusions. This is not a question for substantial-evidence review. See
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (stating that evidence not part of the record
before the ALJ cannot be considered upon substantial-evidence review). Thus, the Court will
address that issue, infra, Section I.C.
With respect to whether Dr. Smithson relied upon medical signs and laboratory findings and
provided supporting explanations for his opinions, the ALJ stated that “Dr. Smithson’s opinion is
overly restrictive and is based solely on his own evaluation of the claimant and her own reported
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limitations and presentation at that evaluation.” (R. at 23). Yet while Dr. Smithson does not to have
relied upon any laboratory findings in his psychological examination, he did provide supporting
explanations not only based upon Plaintiff’s own reports but also other medical records detailing
various injuries, including a traumatic brain injury and grand mal seizures following an automobile
accident that she states precipitated her disability. (R. at 665-666). He additionally used standard
diagnostic criteria from the DSM-IV-TR for her diagnoses. (R. at 671). Thus, the Court finds that
the ALJ did not accurately state all of the bases for Dr. Smithson’s opinions.
Accordingly, the Court concludes that the ALJ erred in weighing the medical source opinion
testimony of Dr. Smithson. Thus, the decision of the Commissioner is hereby REVERSED, and
REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g) for the ALJ to reconsider Dr.
Smithson’s medical source opinions under 20 C.F.R. § 404.1527(c) and § 416.927(c) in crafting
Plaintiff’s RFC. The ALJ should further review any portions of the record which may be weighed
differently in view of the reevaluation of Dr. Smithson’s opinions. If the ALJ determines that
Plaintiff’s RFC should be adjusted upon reevaluation, the ALJ should additionally reconsider Step
Five of the sequential analysis.
C. Additional Medical Source Opinion Evidence
Finally, Plaintiff contends that she attempted to present additional medical source opinion
evidence from Carey Counseling Center (“CCC Records”) which was inadvertently not included in
the record before the ALJ. Specifically, Plaintiff states that the ALJ did not have the CCC Records
as of the January 13, 2012 hearing. (R. at 56). The ALJ permitted Plaintiff fourteen days to obtain
the records and submit them during which time she would keep the record open. (R. at 56, 78). The
ALJ further instructed Plaintiff’s counsel to request more time if necessary to provide the records.
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(Id.) Plaintiff’s counsel requested the CCC Records on the same date as the ALJ hearing. (R. at
304). Plaintiff then sent them by facsimile to the ALJ on January 25, 2012, which was fourteen days
after the ALJ hearing and therefore within the time set forth by the ALJ for the record to remain
open. (R. at 289-302). However, Plaintiff asserts that she was unaware that the ALJ apparently did
not receive and consider the CCC Records until she received the March 9, 2012 decision.
The Commissioner responds that the Appeals Council considered the CCC Records
contained in Exhibit 23F of the administrative record and found that the additional evidence did not
provide a basis for changing the ALJ’s decision. (R. at 1-2, 4, 809-17). Thus, the Commissioner
argues that Plaintiff could only argue at this Court for the case to be remanded based upon new and
substantial evidence under Sentence Six of 42 U.S.C. § 405(g), which she did not do in her initial
briefing. However, in her Reply, Plaintiff clarifies that she does seek remand for consideration of
this evidence.
Upon review, Sentence Six provides, in pertinent part, that the Court “may at any time order
additional evidence to be take before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Materiality requires that
there be a “reasonable probability that the [Commissioner] would have reached a different
disposition of the disability claim if presented with the new [evidence].” Salyer v. Comm’r of Soc.
Sec., 574 F. App’x 595, 597 (citing Hallon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 484
(6th Cir. 2006)).
As to the three requirements under Sentence Six, the Court concludes that the evidence is
new as it was not contained in the record before the ALJ. The Court also concludes that good cause
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exists because the record reflects that Plaintiff did provide the ALJ with the records within the
fourteen-day period during which the ALJ stated that the record would remain open. Thus, the crux
of whether remand under Sentence Six is appropriate is whether the CCC Records are material.
At the hearing before the ALJ, she noted in the discussion of Plaintiff’s desire to obtain the
CCC Records that if the Plaintiff “had been seeing a counselor for a year and a half, obviously that
would help support what [she was] seeing” in the record. (R. at 77). The CCC Records reflect that
Plaintiff had been receiving mental health treatment from March 28, 2011 until December 7, 2011.
(R. at 809-813). Although her treatment had not been going on for a year and a half, she was treated
on five occasions over approximately seven months. (Id.) Although the ALJ stated in considering
Dr. Smithson’s opinions that the “record contains no treatment notes which would substantiate such
a limited level of functioning,” the Court finds that the CCC Records are material as they are
treatment notes of fairly significant mental health treatment that should be considered along with Dr.
Smithson’s findings. The Court further concludes that the ALJ stated herself that counseling records
would “obviously” provide “support” to the other sources in the record, which additionally bolsters
a finding that they are material. Accordingly, the Court finds that this case meets the criteria under
Sentence Six of 42 U.S.C. §405(g) for remand for the taking of additional evidence in addition to
the criteria under Sentence Four of 42 U.S.C. §405(g) for remand for agency reconsideration.
In cases such as this where it has been established that remand is appropriate both under
Sentence Four for agency reconsideration and under Sentence Six for new and material evidence,
courts face a jurisdictional conundrum, as the precise method or methods of remand is important due
to its jurisdictional implications. See Faucher v. Sec’y of Health & Human Srvs., 17 F.3d 171, 175
(6th Cir. 1994). A remand under Sentence Four of 42 U.S.C. §405(g) is a post-judgment remand
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where the Court relinquishes jurisdiction; a remand under Sentence Six of 42 U.S.C. §405(g) is a
pre-judgment remand where the Court retains jurisdiction. Id.
Courts that have considered this question have utilized two approaches. First, some courts
have ordered a “dual basis remand” while retaining jurisdiction over the case under Sentence Six.
Jackson v. Chater, 99 F.3d 1086, 1097 (11th Cir. 1996) (concluding that 42 U.S.C. § 405(g) permits
dual basis remand and requires the district court to retain jurisdiction due to the Sentence Six ground
for remand); see also Yolanda Jones v. Comm’r of Soc. Sec., No. 1:14-cv-240, 2015 WL 4652638,
at *9 (S.D. Ohio Aug. 5, 2015) (permitting dual-basis remand with the district court retaining
jurisdiction as a result of the Sentence Six prong); Richard Dale Crawford v. Comm’r of Soc. Sec.,
No. 1:13-cv-451, 2014 WL 6606135, at *12 (S.D. Ohio Nov. 20, 2014) (same); Heather Sizemore
v. Comm’r of Soc. Sec., No. 1:13-cv-521, 2014 WL 4549020, at *24 (Sept. 12, 2014) (same); Tia
Reeves v. Comm’r of Soc. Sec., No. 1:13-cv-325, 2014 WL 2434112, at *9 (May 29, 2014) (same);
Stephanie Banik v. Comm’r of Soc. Sec., No. 1:11-cv-342, 2012 WL 2190816, at *17 (June 14, 2012)
(same); Tyrone Sturgeon v. Comm’r of Soc. Sec., No. 1:08-cv-510, 2009 WL 2005276, at *17 (July
9, 2009); Jeannie B. Harthun v. Comm’r of Soc. Sec., No. 1:07-cv-595, 2008 WL 2831808, at *8 n.6
(July 21, 2008) (acknowledging the possibility for dual-basis remands under Jackson but finding that
the plaintiff failed to demonstrate a Sentence Six basis for remand).
Second, other courts have found it to be more appropriate to order a Sentence Four remand
only and to relinquish jurisdiction but order that the ALJ consider additional evidence upon remand.
Melvin Lynn Huber v. Comm’r of Soc. Sec., No. 07-14588, 2009 WL 111738, at *9-*12 (E.D. Mich.
Jan 15, 2009) (citing Faucher v. Sec’y of Health & Human Srvs., 17 F.3d 171, 175 (6th Cir. 1994);
see also Timothy W. Demars v. Comm’r of Soc. Sec., No. 11-15394, 2013 WL 1326423, at *12
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(E.D.Mich. Feb. 4, 2013). In Huber, the Court found that this approach was particularly preferable
if the “new sentence six material . . . is almost inseparably connected to the basis of the sentence four
remand.” Id. at *11. Further, the Huber court concluded that a dual basis remand could be
“jurisdictionally confusing,” requiring a determination of “whether relief at the administrative level
was based on sentence four grounds, sentence six grounds, or some combination of the two,” and
that the Sentence Four remand with an order to consider additional evidence “get[s] everything right
in one proceeding” and eliminates the jurisdictional confusion. Id. (citing Faucher, 17 F.3d at 175).
Finally, the Huber court opined that the United States Court of Appeals in Faucher had “provided
a clean, simple remedy that gives Plaintiff a full and fair opportunity to have a single hearing at
which all material is considered,” and that the Faucher method should be followed instead of “an
Eleventh Circuit case—however well-reasoned it might be.” Id. at *12.2
Upon review, the Court is compelled by the Huber court’s reasoning that, when a Plaintiff
satisfies the grounds for both a Sentence Four and a Sentence Six remand under 42 U.S.C. §405(g),
and when, as is the case here, the new and material evidence (the CCC Records) is inseparably
connected to the basis of the Sentence Four remand for reconsideration (Dr. Smithson’s opinions on

2

Although the Huber court appropriately seeks all possible guidance from the opinions
of this Circuit, it is important to note that in Faucher, the United States Court of Appeals for the
Sixth Circuit did not squarely address a dual-basis remand because the plaintiff had not satisfied
the requirements for both a Sentence Four and Sentence Six remand. 17 F.3d at 175; see also
Huber, 2009 WL 111738 at *11. Instead, the Faucher court only accepted that remands under
Sentence Four could also order new and additional evidence be considered upon remand. Id.
(holding that “remands under both sentence four and sentence six of § 405(g) can involve the
taking of additional evidence.”). Thus, while Faucher contains clear and important guidance in
this Circuit, and while the Huber court found it to be most persuasive, it does not appear to be
entirely dispositive of the issue, thus requiring this Court to examine the approaches of other
courts when presented with cases where the plaintiff does satisfy the requirements of both a
Sentence Four and Sentence Six remand.
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Plaintiff’s mental health and any support therefore), the clean, simple remedy is to remand pursuant
to Sentence Four of 42 U.S.C. §405(g) and order the ALJ to consider the new and material evidence
contained in the CCC Records on remand. As with the reconsideration of Dr. Cran-Carty and Dr.
Smithson’s medical source opinions, the ALJ should review her determination of Plaintiff’s updated
RFC in light of the CCC Records. The ALJ should further review any portions of the record which
may be weighed differently in view of the CCC Records. If the ALJ determines that Plaintiff’s RFC
should be adjusted upon reevaluation, the ALJ should additionally reconsider Step Five of the
sequential analysis.2
II. Standing
Finally, this Court was required to consider the issues raised by Haywood’s death, which
occurred during the pendency of this appeal, and the substitution of Brown on her behalf. Before
entering this Order Reversing the Decision of the Commissioner, this Court ordered additional
briefing on the question of whether Brown had standing in this Court to pursue Haywood’s SSI or
DIB benefits. The parties fully briefed this issue for the Court to complete its consideration of the
appeal. Ultimately, as the case is being remanded, the Court concludes that the ALJ should be the
first to address this question on remand and should determine if Brown has standing to proceed on
Haywood’s SSI and DIB claims.

2

Plaintiff additionally raised the question of whether, under Step Five, the ALJ erred in
finding that there were a significant number of jobs in the national economy for which she was
qualified. As the Court has reversed and remanded this case for reevaluation of Dr. Cran-Carty
and Dr. Smithson’s opinions and for consideration of the new and material evidence contained in
the CCC Records in crafting Plaintiff’s RFC, the Court declines to consider this question at this
time.
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III. Conclusion
For the reasons set forth herein, the Decision of the Commissioner is REVERSED, and the
case is REMANDED pursuant to Sentence Four of 42 U.S.C. §405(g) for reconsideration of Dr.
Cran-Carty and Dr. Smithson’s medical source opinions and for consideration of the new and
material evidence in the CCC Records.

IT IS SO ORDERED this 16th day of February, 2017.
s/ Charmiane G. Claxton
CHARMIANE G. CLAXTON
UNITED STATES MAGISTRATE JUDGE

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