Mcintosh v. Commissioner Social Security
ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G). Signed by Chief Judge S. Thomas Anderson on 7/19/17. (Anderson, S. Thomas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
BELINDA SUE MCINTOSH,
Case No: 1:14-cv-01143-STA-dkv
ORDER REVERSING THE DECISION OF THE COMMISSIONER AND
REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)
Plaintiff Belinda Sue McIntosh filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying her application for disability insurance benefits under
Title II of the Social Security Act (“Act”). Plaintiff’s application was 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 December 12, 2012. On January 23,
2013, 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 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 or 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.”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
42 U.S.C. § 405(g).
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).
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
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)).
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).
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).
benefits. The case can be remanded under sentence four of 42 U.S.C. § 405(g) for further
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 where 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
Plaintiff was born on September 27, 1961. In her disability report, she alleged disability
based on bipolar disorder, manic depression, and obsessive compulsive disorder. She amended
her alleged onset of disability at the hearing to September 27, 2011. She has past relevant work
as a sewing machine operator.
The ALJ enumerated the following findings: (1) Plaintiff met the insured status
requirements through December 31, 2014; (2) Plaintiff has not engaged in substantial gainful
activity since the alleged amended onset date; (3) Plaintiff has severe impairments and history of
depressive disorder, anxiety disorder, back disorder, disorder of the left shoulder, and obesity,
Faucher v. Secretary, 17 F.3d 171, 175 (6th Cir. 1994).
Id. at 176 (citations omitted).
but she does not have an impairment or combination of impairments that meet or equal a listing;
(4) Plaintiff retains the residual functional capacity to perform light work except that she can
perform no climbing, overhead reaching, kneeling, or crawling; she can perform occasional
stooping and crouching; and she needs simple, routine tasks with no exposure to the public and
only occasional collaborative efforts with co-workers and supervisors; (5) Plaintiff can perform
her past relevant work; (6) Plaintiff was not under a disability as defined in the Act at any time
through the date of this decision.11
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.12 The claimant bears the ultimate burden of establishing an entitlement to benefits.13
The initial burden of going forward is on the claimant to show that he or she is disabled from
engaging in his or 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.14
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
Id. at 17 – 27.
42 U.S.C. § 423(d)(1).
Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).
requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the
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 residual functional capacity must be considered to
determine if other work can be performed.15
Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.16 Here, the sequential analysis proceeded to the fourth step.
The ALJ found that Plaintiff could perform her past relevant work and, therefore, was not
disabled under the Act.
Plaintiff contends that the ALJ erred by failing to properly incorporate the opinion of the
consultative examiner, Dr. Leonard Hayden, into the residual functional capacity finding. The
Court finds Plaintiff’s argument to be persuasive.
Dr. Hayden performed a consultative examination and assigned the following limitations
to Plaintiff: she can lift and carry up to ten pounds frequently and up to twenty pounds
occasionally; she can stand and walk for a total of six hours and would be able to sit and work
and take breaks during the other two hours; she can frequently reach overhead with the right
hand but should not reach overhead with the left hand; other reaching can be performed
bilaterally on a frequent basis; she can handle, finger, feel, push, and pull frequently; she is not
likely to qualify for operation of foot controls of a forklift due to complaints regarding low back,
Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).
20 C.F.R. § 404.1520(a).
feet, and decreased range of motion of the left shoulder; she can occasionally stoop and crouch
but can never kneel or crawl.17
The ALJ gave weight to the portion of Dr. Hayden’s opinion regarding the limitations on
lifting, carrying, standing, walking, overhead reaching with the left hand, reaching in all other
directions, handling, fingering, feeling, pushing, pulling, climbing ladders and scaffolds,
stooping, crouching, kneeling, and crawling.18 However, she failed to include some of those
limitations in the residual functional capacity finding. For example, despite giving weight to Dr.
Hayden’s opinion regarding bilateral reaching (other than overhead) on a frequent basis and
handling, fingering, feeling, pushing, and pulling on a frequent basis, the ALJ did not provide for
those limitations in the residual functional capacity finding and offered no explanation for failing
to do so. As noted by Plaintiff, adding those limitations to the residual functional capacity
finding would impact her ability to perform her past relevant work.
This issue arose in Carter v. Comm’r of Soc. Sec., 137 F. Supp. 3d 998 (S.D. Ohio 2015).
In Carter, Dr. Cools, the medical expert, opined, inter alia, that the claimant “would probably
miss one to two days per month based on her psychological difficulties, primarily the
depression.” The ALJ gave “greatest weight to and ... essentially adopted the opinion of Dr.
Cools,” but he did not include the absenteeism limitation in the residual functional capacity
finding and “provided no explanation regarding such omission.”19 The Court reversed the
decision denying the application for benefits and remanded for further proceedings.
The Court reasoned as follows.
R. 24. The ALJ gave minimal weight to Dr. Hayden’s other limitations.
Id. at 1007.
An ALJ is not required to discuss every piece of evidence in the record or include
every limitation in a RFC. However, if a medical source’s opinion contradicts the
ALJ’s RFC finding, an ALJ must explain why he or she did not include the
disabling limitation in the RFC determination. Social Security Ruling (“SSR”) 968p states: “[t]he RFC assessment must always consider and address medical
source opinions, and address conflicts with an opinion from a medical source,” if
that opinion is not adopted and incorporated into the RFC. SSR 96-8p, 1996 WL
374184 at *7 (July 2, 1996). Here, the ALJ failed to discuss why, in formulating
Plaintiff’s RFC, he disregarded Dr. Cools’s opinion that Plaintiff would
consistently miss up to two days of work monthly because of her depression,
despite placing the “greatest weight” on all other aspects of Dr. Cools’s findings.
The ALJ’s decision to omit this portion of Dr. Cools's opinion from the RFC
prejudiced Plaintiff. Hypotheticals posed by the ALJ to the Vocational Expert
(“VE”) failed to include Dr. Cools’s opinion regarding absenteeism, and the VE
testified that his analysis of job availability would change with this additional
limitation. Specifically, the VE testified that a hypothetical worker, who is absent
two times a month, would not be able to maintain competitive employment, and a
worker who fluctuated between one and two absences a month would “possibly”
be terminated. The VE’s testimony thus cannot serve as substantial evidence in
support of the conclusion, at Step Five, that Plaintiff can perform a significant
number of jobs other than her past relevant work, and the ALJ did not satisfy his
Likewise, in the present case, the ALJ failed to include some of the limitations opined by
Dr. Hayden, despite giving his opinion weight as to those limitations, and did not discuss or
explain why she disregarded those aspects of Dr. Hayden’s opinion. Accordingly, the Court
finds that the ALJ’s residual functional capacity assessment was not formulated in accordance
with correct legal standards and, therefore, substantial evidence does not support the decision
denying Plaintiff’s application for benefits.
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.
Id. at 1008 (some citations omitted).
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
CHIEF UNITED STATES DISTRICT JUDGE
Date: July 19, 2017.
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