Blankenship v. Commissoner of Social Security

Filing 17

ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G). Signed by Judge S. Thomas Anderson on 1/30/2017. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
MICHAEL GEORGE BLANKENSHIP,

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Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No: 1:14-cv-01012-STA-tmp

ORDER REVERSING THE DECISION OF THE COMMISSIONER AND
REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)
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Plaintiff Michael George Blankenship filed this action to obtain judicial review of
Defendant Commissioner’s final decision denying his applications for disability insurance
benefits under Title II of the Social Security Act (“Act”) and for Supplemental Security Income
(“SSI”). Plaintiff’s applications were denied initially and upon reconsideration by the Social
Security Administration. Plaintiff then requested a hearing before an administrative law judge
(“ALJ”), which was held on September 6, 2012. On September 28, 2012, the ALJ issued a
decision, finding that Plaintiff was not entitled to benefits.

The Appeals Council denied

Plaintiff’s request for review, and, thus, the decision of the ALJ became the Commissioner’s
final decision.

For the reasons set forth below, the decision of the Commissioner is

REVERSED, and the action is REMANDED for additional testimony pursuant to sentence four
of 42 U.S.C. § 405(g).
Under 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 he was a party. “The court shall have the

1

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.”1 The Court’s review is limited to determining whether there is substantial
evidence to support the Commissioner’s decision,2 and whether the correct legal standards were
applied.3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”4 It is “more than a mere scintilla of evidence, but less than a
preponderance.”5 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.6

When substantial evidence supports the Commissioner’s

determination, it is conclusive, even if substantial evidence also supports the opposite
conclusion.7 “[W]hen 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

1

42 U.S.C. § 405(g).

2

Id.

3

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Landsaw v. Sec’y of Health &
Human Servs, 803 F.2d 211, 213 (6th Cir. 1986).

4

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
389 (1971)).

5

Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).

6

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d
642, 644 (6th Cir. 1990); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
7

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004); Foster v. Halter, 279 F.3d
348, 353 (6th Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
2

benefits. The case can be remanded under sentence four of 42 U.S.C. § 405(g) for further
consideration.”8
Pursuant to sentence four, a district court may “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.”

The court may

immediately award Plaintiff benefits “only if all essential factual issues have been resolved and
the record adequately establishes a plaintiff’s entitlement to benefits.”9 “A judicial award of
benefits is proper only [when] the proof of disability is overwhelming or where the proof of
disability is strong and evidence to the contrary is lacking.”10 These factors are not present in
this case, and, therefore, an immediate award of benefits is not appropriate. However, a remand
pursuant to sentence four of § 405(g) is appropriate because all essential issues have not been
resolved.
Plaintiff was born on March 31, 1957, and was fifty years old on his alleged disability
onset date, which is defined, for purposes of vocational analysis, as an individual closely
approaching advanced.11 He has a high school education. Plaintiff alleges disability due to
diabetes, neuropathy, and arthritis12 with an amended alleged onset date of December 1, 2007.13

8

Faucher v. Secretary, 17 F.3d 171, 175 (6th Cir. 1994).

9

Id. at 176 (citations omitted).

10

Id.

11

(R. 51.) No electronic copy of the record has been filed in this matter. See Staff Notes dated
April 4, 2014.

12

(Id. at 82.)

13

(Id. at 11.)
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The ALJ enumerated the following findings: (1) Plaintiff met the insured status
requirements through December 31, 2007; (2) Plaintiff has not engaged in substantial gainful
activity since the alleged onset date; (3) Plaintiff has severe impairments of diabetes mellitus
with neuropathy, but he does not have an impairment or combination of impairments that met or
equaled a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 through his date last insured; (4) Plaintiff
retained the residual functional capacity to perform medium work as defined in 20 C.F.R.
404.1567(c) and 416.967(c), except lifting and/or carrying fifty pounds occasionally and twentyfive pounds frequently, standing and/or walking (with normal breaks) about six hours in an
eight-hour workday, sitting (with normal breaks) about six hours in an eight-hour workday,
pushing and/or pulling unlimited other than as shown for lifting and/or carrying, frequently
climb, balance, stoop, kneel, crouch, and crawl, and should avoid concentrated exposure to
extreme cold and extreme heat; (5) Plaintiff can perform his past relevant work as an assembler,
motor vehicle (automotive manufacturing); (6) Plaintiff was not under a disability as defined in
the Act at any time through the date of this decision.14
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.15 The claimant bears the ultimate burden of establishing an entitlement to benefits.16
The initial burden of going forward is on the claimant to show that he is disabled from engaging
in his former employment; the burden of going forward then shifts to the Commissioner to

14

(Id. at 13 - 20.)

15

42 U.S.C. § 423(d)(1).

16

Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).
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demonstrate the existence of available employment compatible with the claimant’s disability and
background.17
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, 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.
4. An individual who can perform work that 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 residual functional capacity must be considered to
determine if other work can be performed.18
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.19 Here, the sequential analysis proceeded to the fourth and
fifth steps. The ALJ found that Plaintiff could perform his past relevant work and that there was
other work that exists in substantial numbers in the national economy that he could perform. The
Commissioner argues that, even if the ALJ’s step four finding that Plaintiff could perform his
past relevant work was in error, the ALJ correctly found that Plaintiff could perform other work
at step five of the sequential process.

17

Id.

18

Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).

19

20 C.F.R. § 404.1520(a).
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Plaintiff contends that the ALJ erred by (1) relying on and giving great weight to a
consultative psychological examination report that was unsigned and unauthenticated; (2) failing
to obtain testimony from a vocational expert regarding his findings at step four and step five of
the sequential evaluation; and (3) not properly assessing Plaintiff’s credibility.

Plaintiff also

complains that the ALJ’s decision was not signed by the ALJ who presided over the hearing and
was not properly authenticated.
Looking at Plaintiff’s last argument first, the Court finds it to be without merit. While
Plaintiff is correct that the hearing decision was signed by an ALJ (William R. Ingram) other
than the one who presided over the hearing (Paul Michael Stimson) and there is nothing in the
record indicating that Judge Stimson had approved this decision and given signatory authority to
Judge Ingram, as required by HALLEX I-2-8-40, this procedural error does not require reversal.
As explained in Estep v. Astrue,
Section I–2–8–40 of the SSA’s Hearings, Appeals, and Litigation Law
Manual (“HALLEX”) provides procedures for situations in which the ALJ who
conducted the hearing is unavailable to issue the decision. In a scenario where the
ALJ who conducted the hearing is unavailable to issue the decision due to death,
retirement, resignation, prolonged illness or other causes resulting in prolonged
leave, the Hearing Office Chief ALJ (“HOCALJ”) will reassign the case to
another ALJ. See HALLEX § I–2–8–40. The incoming ALJ is given discretion to
determine whether a new hearing is necessary … Id. Section I–2–8–40 also
provides procedures for a second scenario in which “an ALJ has approved a final
decision but is unavailable to sign the final decision.” In that case, the HOCALJ
has authority to sign the final decision on behalf of the temporarily unavailable
ALJ with prior written authorization. Id.
There is no indication in the record whether the case was transferred to
ALJ Newkirk by the HOCALJ. Likewise, there is no indication whether ALJ
Newkirk is the HOCALJ signing on behalf of ALJ Sparks. Simply put, the record
does not reveal whether the Commissioner complied with either scenario
contemplated in HALLEX section I–2–8–40 when ALJ Newkirk signed the
decision for ALJ Sparks. Thus, the Court cannot determine whether the
Commissioner complied with section I–2–8–40 or not.
However, even if the Commissioner did not comply with section I–2–8–
40, HALLEX is not considered binding authority in the Sixth Circuit. See Bowie
v. Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008). Consequently, even if
6

the Commissioner failed to follow HALLEX procedures, such a fact would not
necessarily entitle the plaintiff to relief.
Other courts considering similar factual scenarios have required a showing
of prejudice before affording relief. See, e.g., Report and Recommendation
entered in Pehrson v. Soc. Sec. Admin. Comm’r, 2011 WL 2650187 at *2–3 (D.
Maine July 6, 2011) and adopted by the court (affirming Commissioner’s
decision “[i]n the absence of some suggestion of actual prejudice” when the ALJ
who presided at the hearing wrote the decision and a second ALJ signed the
decision “for” the presiding ALJ). Cf. Cohan v. Comm’r of Soc. Sec., 2011 WL
3319608 at *4–6 (M.D. Fla. July 29, 2011) (finding prejudice when ALJ who did
not preside at the hearing signed the decision without “signing for” the presiding
ALJ, and the decision was “inconsistent” and “specifically relied on observations
of [p]laintiff’s demeanor at the hearing” in making a credibility determination). In
this case, the plaintiff has made no allegation of prejudice and none is apparent
from the record. Consequently, he is not entitled to relief on this issue.20
In the present case, as in Estep, Plaintiff has neither alleged nor shown that he was
prejudiced by the fact that a non-presiding ALJ signed the decision for the presiding ALJ.
Accordingly, this argument is without merit.
However, the fact that the ALJ relied on and gave great weight to a consultative
psychological examination report that was unsigned and unauthenticated is more troubling.
Plaintiff complains of both Exhibits 5F (psychological consultative examination by Dr. Dennis
Wilson) and 7F (residual functional capacity assessment by DDS physician). The Commissioner
acknowledges that she does not have the electronic signature for Exhibit 7F but correctly notes
that a supplemental transcript of Dr. Wilson’s report has been filed.21 Therefore, the Court finds
no error in the ALJ’s reliance on Dr. Wilson’s report. However, the Court does find that it was
error for the ALJ to rely on the unsigned and unauthenticated Exhibit 7F.22
20

Estep, 2013 WL 212643 at *11–12 (M.D. Tenn. Jan. 18, 2013), report and recommendation
adopted sub nom. Estep v. Colvin, 2013 WL 2255852 (M.D. Tenn. May 22, 2013) (some
citations and footnotes omitted).
21

(Comm’s Br., p. 5 (citing R. 318 – 325) ECF No 14.)

22

(R. 224 – 232.) Not only is Exhibit 7F not signed, it does not contain the name of the
examiner.
7

In making his residual functional capacity finding, the ALJ stated that he gave “great
weight” to the opinions of the “State agency medical consultants.”23 The ALJ specifically cited
Exhibit 7F in the assignment of “great weight” and reliance upon these opinions. The ALJ also
cited Exhibit 7F in discrediting the opinion of John B. Woods, M.D, who opined that Plaintiff
could perform light work only.24
The Commissioner acknowledges that her regulations require reports to be signed,25 but
argues that “current agency practices mean handwritten or ‘wet’ signatures will be fairly rare, at
least on reports generated as a part of the agency’s decision-making process.”26

The

Commissioner’s argument is misplaced. Plaintiff is not complaining that the report does not
contain a handwritten or “wet” signature; instead, he complains that the report does not contain
any signature or even the name of the preparer. Alternatively, the Commissioner argues that the
omission was harmless error.
As discussed in Cramer v. Astrue, 2009 WL 2927286 (E.D. Tenn. 2009),
Regardless of whether substantial evidence exists to support the Commissioner’s
decision, violation of the regulations merits a remand, absent a showing of
harmless error. An elemental principle of administrative law is that agencies are
bound to follow their own regulations. Wilson v. Comm’r of Soc. Sec., 378 F.3d
23

(Id. at 18.)

24

(Id. (citing Exhibit 4F, 194 – 202)). Dr. Woods also assessed Plaintiff with limitations to
lifting and/or carrying twenty pounds occasionally or frequently and standing or walking only six
hours total during an eight-hour workday because of increased bilateral leg and foot pain with
tingling.

25

See 20 C.F.R §§ 404.1519o; 416.919o; 404.1519n; 404.919n (2014) ( “We will not use an
unsigned or improperly signed consultative examination report to make the determinations or
decisions specified in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of this section,” which includes
“Denial(s).”) See also POMS DI 26510.089 (“Each medical assessment form must have a
reviewing MC/PC’s actual physical signature or an approved electronic signature.”)
26

(Comm’s Br., p. 5, ECF No 14.)
8

541, 545 (6th Cir. 2004) (remanding claim for disability [when] Commissioner
failed to comply with regulations requiring provision of good reasons for
discounting a treating source’s opinion). Whether a procedural error is “harmless”
in this context does not depend on the likely outcome of the case but instead on
whether the Commissioner violated a regulation establishing a procedural right
designed to protect the claimant. Wilson, 378 F.3d at 546–47 (defining
“substantial right”).27
The Cramer Court noted that the regulations state that a consultative examiner must sign
his report “[t]o help ensure that the appropriate medical consultant personally conducts the
examination and reviews the report requested by the Commissioner.”28

Moreover, “[t]he

regulations do not permit the adjudicator simply to ignore or omit an unsigned report: the
adjudicator must either acquire a signature from the actual examiner or else order another
consultative examination for the claimant.”29
Failure to follow the regulations requiring a consultative examiner’s signature
constitutes error requiring remand. These regulations are expressly designed to
protect the claimant by having the medical consultant certify the results that are to
become a part of the claimant’s record. 20 C.F.R. §§ 404.1519n(e), 414.919n(e).
By allowing the use of unsigned reports in favorable decisions but not in anything
less, Sections 404.1519o and 414.919o imply that the signature requirement exists
primarily to safeguard the claimant’s rights. Thus, any use of an unsigned
consultative examination report in an unfavorable decision is an error requiring a
remand under the rule articulated in Wilson v. Commissioner of Social Security,
378 F.3d 541 (6th Cir. 2004).30
This Court finds the reasoning of Cramer to be persuasive and holds that the ALJ’s
reliance on an unsigned and unauthenticated report was not harmless error and requires a reversal
of the decision denying Plaintiff’s applications.
27

Cramer, 2009 WL 2927286 at *5.

28

Id. (citing 20 C.F.R. §§ 404.1519n(e), 414.919n(e).)

29

Id. at *6 (citing §§ 404.1519o(b), 414.919o(b); HALLEX I–2–5–20 (Sept. 28, 2005)).

30

Id. See also Posner v. Colvin, 2014 WL 2895454 at *10 (E.D. Tenn. June 25, 2014) (agreeing
with Petty that “any use of an unsigned consultative examination report in an unfavorable
decision is an error requiring a remand”).
9

Having determined that the decision must be reversed, the court must determine whether
it is appropriate to remand this case or to direct the payment of benefits. Because the record does
not establish that Plaintiff is entitled to benefits or that all essential facts have been resolved, it is
appropriate to remand this case for further proceedings.

Therefore, the decision of the

Commissioner is REVERSED, and the action is REMANDED pursuant to sentence four of 42
U.S.C. § 405(g) for another hearing consistent with this order.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

Date: January 30, 2017.

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