Evilsizor, Jarrod v. Colvin, Carolyn

Filing 16

ORDER granting in part and denying in part 12 Motion for Remand; reversing and remanding action to the Commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g). Signed by District Judge William M. Conley on 4/19/2017. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JARROD EVILSIZOR,

Plaintiff,

ORDER

v.
14-cv-771-wmc
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

Plaintiff Jarrod Evilsizor appeals from an adverse decision of defendant Nancy A.
Berryhill, the Acting Commissioner of Social Security, which denied his application for
disability insurance benefits.

Before the court is defendant’s motion to remand for

further proceedings (dkt. #12), which plaintiff opposes on the ground that the court’s
remand order should require a de novo hearing and a new decision by the ALJ.
The Commissioner’s proposed remand order already specifies a fairly sweeping
review on remand, including that the ALJ will: (1) evaluate and provide rationale for
accepting or rejecting each medical opinion; (2) further evaluate the nature and severity
of plaintiff’s mental impairments; (3) further evaluate plaintiff’s credibility and subjective
complaints; (4) if necessary, obtain evidence from a psychological medical expert; (5)
evaluate plaintiff’s residual functional capacity (“RFC”), if the ALJ reaches step four; and
(6) if necessary, obtain supplemental evidence from a vocational expert (“VE”). (Dkt.
#12-1.) Nevertheless, the Commissioner disputes that a de novo hearing will necessarily
be required. She further argues that plaintiff can request a supplemental hearing on any

matter on remand under Social Security Administration policy, if he believes that one is
needed.
Still, plaintiff persists that a completely new hearing is required, particularly
because certain deficiencies in the ALJ’s opinion would appear to require additional
testimony from both Evilsizor and a vocational expert, including:

(1) a credibility

determination and evaluation of his subjective complaints; and (2) incorporation of
limitations in his concentration, persistence and pace in reformulating his RFC. The
court is sympathetic to plaintiff’s concerns, and even more so, to the goal of avoiding a
second remand, given the Commissioner’s failure to address other issues raised in
Evilsizor’s appeal. At the same time, the court is reluctant to require a de novo review if
the Commissioner were to find Evilsizor disabled as part of a record review. Accordingly,
the court will remand with direction that the Commissioner first conduct a record review
of the issues described above, as well as those issues suitable to record review in its
motion for remand.
If after that review, Evilsizor is still found not disabled, then the Commissioner
should conduct a new hearing, addressing the additional issues concerning credibility
determinations and incorporation of any CPP limitations into plaintiff’s RFC. See, e.g.,
Bates v. Colvin, 736 F.3d 1093 (7th Cir. 2013) (remanding for rehearing when the ALJ
improperly discounted the treating physician’s opinion and improperly evaluated the
claimant’s testimony regarding her mental health); Indoranto v. Barnhart, 374 F.3d 470,
474-75 (7th Cir. 2004) (remanding for a new hearing when the ALJ made a faulty
credibility determination and failed to submit all of the claimant’s work-related
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impairments to the VE).

Of course, as the Commissioner notes, plaintiff may also

request whatever additional relief he maintains is required, including a rehearing on all
issues.

ORDER
IT IS ORDERED that:
1) The Commissioner’s motion for remand (dkt. #12) is GRANTED IN PART
AND DENIED IN PART consistent with this opinion.
2) The decision of defendant Nancy A. Berryhill, Acting Commissioner of Social
Security, denying plaintiff Jarrod Evilsizor’s application for disability insurance
benefits is REVERSED AND REMANDED under sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this opinion.
Entered this 19th day of April, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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