UNITED STATES DISTRICT COURT DISTRICT OF RHODE ISLAND

CHELSEA M. : : v. : C.A. No. 21-00428-JJM : KILOLO KIJAKAZI, Commissioner : Social Security Administration :

REPORT AND RECOMMENDATION

Lincoln D. Almond, United States Magistrate Judge

This matter is before the Court for judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”),

(g). Plaintiff filed her Complaint on October 28, 2021, seeking to reverse the Decision of the Commissioner. On March 12, 2022, Plaintiff filed a Motion for Reversal of the Unfavorable Portion of the Partially Favorable Decision of the Commissioner of Social Security. (ECF No. 14). On June 10, 2022, Defendant filed a Motion for an Order Affirming the Decision of the Commissioner. (ECF No. 17). A Reply Brief was filed on July 8, 2022. (ECF No. 19). This matter has been referred to me for preliminary review, findings, and recommended disposition.

(b)(1)(B); LR Cv 72. Based upon my review of the record, the parties’ submissions, and independent research, I find that there is not substantial evidence in this record to support the Commissioner’s decision and findings that Plaintiff is not disabled within the meaning of the Act. Consequently, I recommend that Plaintiff’s Motion for Reversal (ECF No. 14) be GRANTED and that the Commissioner’s Motion for an Order Affirming (ECF No. 17) be DENIED. I. PROCEDURAL HISTORY Plaintiff filed an application for DIB on March 21, 2019 (Tr. 203-204) and for SSDI on May 13, 2019 alleging disability since January 1, 2010. (Tr. 215-223). Plaintiff’s date last insured is December 31, 2013. The applications were denied initially on July 18, 2019 (Tr. 84-94, 95-105) and on reconsideration on February 22, 2020. (Tr. 108-117, 118-127). Plaintiff requested an

Administrative Hearing. On August 18, 2020, a hearing was held before Administrative Law Judge Paul Goodale (the “ALJ”) at which time Plaintiff, represented by counsel, a Vocational Expert (“VE”), and a witness appeared and testified. (Tr. 34-71). The ALJ issued a partially favorable decision to Plaintiff on September 29, 2020. (Tr. 12-26). The Appeals Council denied Plaintiff’s request for review on August 27, 2021. (Tr. 1-3). Therefore, the ALJ’s decision became final. A timely appeal was then filed with this Court. II. THE PARTIES’ POSITIONS Plaintiff argues that this case was mishandled and that she did not get a “full and fair” hearing on her DIB claim, and that the ALJ’s findings as to her DIB claim are based on an

incomplete record. The Commissioner disputes Plaintiff’s claims and argues that the ALJ’s findings are supported by substantial evidence, and that any claimed error was not prejudicial to Plaintiff. III. THE STANDARD OF REVIEW The Commissioner’s findings of fact are conclusive if supported by substantial evidence.

(g). Substantial evidence is more than a scintilla – i.e., the evidence must do more than merely create a suspicion of the existence of a fact and must include such relevant evidence as a reasonable person would accept as adequate to support the conclusion. Ortiz v. Sec’y of HHS,

(1st Cir. 1991) (per curiam); Rodriguez v. Sec’y of HHS,

(1st Cir. 1981). Where the Commissioner’s decision is supported by substantial evidence, the court must affirm, even if the court would have reached a contrary result as finder of fact. Rodriguez Pagan v. Sec’y of HHS,

(1st Cir. 1987); Barnes v. Sullivan,

(11th Cir.

1991). The court must view the evidence as a whole, taking into account evidence favorable as well as unfavorable to the decision. Frustaglia v. Sec’y of HHS,

(1st Cir. 1987); Parker v. Bowen,

(11th Cir. 1986) (court also must consider evidence detracting from evidence on which Commissioner relied). The court must reverse the ALJ’s decision on plenary review, however, if the ALJ applies incorrect law, or if the ALJ fails to provide the court with sufficient reasoning to determine that he or she properly applied the law. Nguyen v. Chater,

(1st Cir. 1999) (per curiam); accord Cornelius v. Sullivan,

(11th Cir. 1991). Remand is unnecessary where all of the essential evidence was before the Appeals Council when it denied review, and the

evidence establishes without any doubt that the claimant was disabled. Seavey v. Barnhart,

(1st Cir. 2001) citing, Mowery v. Heckler,

(6th Cir. 1985). The court may remand a case to the Commissioner for a rehearing under sentence four of

(g); under sentence six of

(g); or under both sentences. Seavey,

. To remand under sentence four, the court must either find that the Commissioner’s decision is not supported by substantial evidence, or that the Commissioner incorrectly applied the law relevant to the disability claim. Id.; accord Brenem v. Harris,

(5th Cir. 1980) (remand appropriate where record was insufficient to affirm, but also was insufficient for district court to find claimant disabled). Where the court cannot discern the basis for the Commissioner’s decision, a sentence-four remand may be appropriate to allow her to explain the basis for her decision. Freeman v. Barnhart,

(1st Cir. 2001). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. Diorio v. Heckler,

(11th Cir. 1983) (necessary for ALJ on remand to consider psychiatric report tendered to

Appeals Council). After a sentence four remand, the court enters a final and appealable judgment immediately, and thus loses jurisdiction. Freeman,

. In contrast, sentence six of

(g) provides: The court...may at any time order additional evidence to be taken 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;

(g). To remand under sentence six, the claimant must establish: (1) that there is new, non-cumulative evidence; (2) that the evidence is material, relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level. See Jackson v. Chater,

(11th Cir. 1996). A sentence six remand may be warranted, even in the absence of an error by the Commissioner, if new, material evidence becomes available to the claimant.

With a sentence six remand, the parties must return to the court after remand to file modified findings of fact.

The court retains jurisdiction pending remand and does not enter a final judgment until after the completion of remand proceedings.

The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.

(i), 423(d)(1);

. The impairment must be severe, making the claimant unable to do her previous work, or any other substantial gainful activity which exists in the national economy.

(d)(2);

. A. Treating Physicians

Substantial weight should be given to the opinion, diagnosis, and medical evidence of a treating physician unless there is good cause to do otherwise. See Rohrberg v. Apfel,

(D. Mass. 1998);

(d). If a treating physician’s opinion on the nature and severity of a claimant’s impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, the ALJ must give it controlling weight.

(d)(2). The ALJ may discount a treating physician’s opinion or report regarding an inability to work if it is unsupported by objective medical evidence or is wholly conclusory. See Keating v. Sec’y of HHS,

(1st Cir. 1988).

Where a treating physician has merely made conclusory statements, the ALJ may afford them such weight as is supported by clinical or laboratory findings and other consistent evidence of a claimant’s impairments. See Wheeler v. Heckler,

(11th Cir. 1986). When a treating physician’s opinion does not warrant controlling weight, the ALJ must nevertheless weigh the medical opinion based on the (1) length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the medical evidence supporting the opinion; (4) consistency with the record as a whole; (5) specialization in the medical conditions at issue; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R § 404.1527(c). However, a treating physician’s opinion is generally entitled to more weight than a consulting physician’s opinion. See

(c)(2). The ALJ is required to review all of the medical findings and other evidence that support a medical source’s statement that a claimant is disabled. However, the ALJ is responsible for making the ultimate determination about whether a claimant meets the statutory definition of

disability.

(e). The ALJ is not required to give any special significance to the status of a physician as treating or non-treating in weighing an opinion on whether the claimant meets a listed impairment, a claimant’s residual functional capacity (see

and 404. 1546), or the application of vocational factors because that ultimate determination is the province of the Commissioner.

(e). See also Dudley v. Sec’y of HHS,

(1st Cir. 1987). B. Developing the Record The ALJ has a duty to fully and fairly develop the record. Heggarty v. Sullivan,

(1st Cir. 1991). The Commissioner also has a duty to notify a claimant of the statutory

right to retained counsel at the social security hearing, and to solicit a knowing and voluntary waiver of that right if counsel is not retained. See

; Evangelista v. Sec’y of HHS,

(1st Cir. 1987). The obligation to fully and fairly develop the record exists if a claimant has waived the right to retained counsel, and even if the claimant is represented by counsel.

However, where an unrepresented claimant has not waived the right to retained counsel, the ALJ’s obligation to develop a full and fair record rises to a special duty. See Heggarty,

, citing Currier v. Sec’y of Health Educ. and Welfare,

(1st Cir. 1980). C. Medical Tests and Examinations The ALJ is required to order additional medical tests and exams only when a claimant’s medical sources do not give sufficient medical evidence about an impairment to determine whether the claimant is disabled.

; see also Conley v. Bowen,

(8th Cir. 1986). In fulfilling his duty to conduct a full and fair inquiry, the ALJ is not required to order

a consultative examination unless the record establishes that such an examination is necessary to enable the ALJ to render an informed decision. Carrillo Marin v. Sec’y of HHS,

(1st Cir. 1985). D. The Five-step Evaluation The ALJ must follow five steps in evaluating a claim of disability. See

, 416.920. First, if a claimant is working at a substantial gainful activity, she is not disabled.

(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled.

(c). Third, if a claimant’s impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is disabled.

(d). Fourth, if a claimant’s impairments do not prevent her from doing past relevant work, she is not disabled.

(e). Fifth, if a claimant’s impairments (considering her residual functional capacity, age, education, and past work) prevent her from doing other work that exists in the national economy, then she is disabled.

(f). Significantly, the claimant bears the burden of proof at steps one through four, but the Commissioner bears the burden at step five. Wells v. Barnhart,

(D. Mass. 2003) (five-step process applies to both SSDI and SSI claims). In determining whether a claimant’s physical and mental impairments are sufficiently severe, the ALJ must consider the combined effect of all of the claimant’s impairments and must consider any medically severe combination of impairments throughout the disability determination process.

(d)(2)(B). Accordingly, the ALJ must make specific and well-articulated findings as to the effect of a combination of impairments when determining whether an individual

is disabled. Davis v. Shalala,

(11th Cir. 1993). The claimant bears the ultimate burden of proving the existence of a disability as defined by the Social Security Act. Seavey,

. The claimant must prove disability on or before the last day of her insured status for the purposes of disability benefits. Deblois v. Sec’y of HHS,

(1st Cir. 1982),

(i)(3), 423(a), (c). If a claimant becomes disabled after she has lost insured status, her claim for disability benefits must be denied despite her disability.

E. Other Work Once the ALJ finds that a claimant cannot return to her prior work, the burden of proof

shifts to the Commissioner to establish that the claimant could perform other work that exists in the national economy. Seavey,

. In determining whether the Commissioner has met this burden, the ALJ must develop a full record regarding the vocational opportunities available to a claimant. Allen v. Sullivan,

(11th Cir. 1989). This burden may sometimes be met through exclusive reliance on the Medical-Vocational Guidelines (the “grids”). Seavey,

. Exclusive reliance on the “grids” is appropriate where the claimant suffers primarily from an exertional impairment, without significant non-exertional factors. Id.; see also Heckler v. Campbell,

(1983) (exclusive reliance on the grids is appropriate in cases involving only exertional impairments, impairments which place limits on an individual’s ability to meet job strength requirements). Exclusive reliance is not appropriate when a claimant is unable to perform a full range of work at a given residual functional level or when a claimant has a non-exertional impairment that significantly limits basic work skills. Nguyen,

. In almost all of such cases, the

Commissioner’s burden can be met only through the use of a vocational expert. Heggarty,

. It is only when the claimant can clearly do unlimited types of work at a given residual functional level that it is unnecessary to call a vocational expert to establish whether the claimant can perform work which exists in the national economy. See Ferguson v. Schweiker,

(5th Cir. 1981). In any event, the ALJ must make a specific finding as to whether the non-exertional limitations are severe enough to preclude a wide range of employment at the given work capacity level indicated by the exertional limitations. 1. Pain “Pain can constitute a significant non-exertional impairment.” Nguyen,

.

Congress has determined that a claimant will not be considered disabled unless he furnishes medical and other evidence (e.g., medical signs and laboratory findings) showing the existence of a medical impairment which could reasonably be expected to produce the pain or symptoms alleged.

(d)(5)(A). The ALJ must consider all of a claimant’s statements about his symptoms, including pain, and determine the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence.

. In determining whether the medical signs and laboratory findings show medical impairments which reasonably could be expected to produce the pain alleged, the ALJ must apply the First Circuit’s six-part pain analysis and consider the following factors: (1) The nature, location, onset, duration, frequency, radiation, and intensity of any pain;

(2) Precipitating and aggravating factors (e.g., movement, activity, environmental conditions);

(3) Type, dosage, effectiveness, and adverse side-effects of any pain medication;

(4) Treatment, other than medication, for relief of pain;

(5) Functional restrictions; and

(6) The claimant’s daily activities. Avery v. Sec’y of HHS,

(1st Cir. 1986). An individual’s statement as to pain is not, by itself, conclusive of disability.

(d)(5)(A). 2. Credibility Where an ALJ decides not to credit a claimant’s testimony about pain, the ALJ must articulate specific and adequate reasons for doing so, or the record must be obvious as to the credibility finding. Rohrberg,

. A reviewing court will not disturb a clearly articulated credibility finding with substantial supporting evidence in the record. See Frustaglia,

. The failure to articulate the reasons for discrediting subjective pain testimony requires that the testimony be accepted as true. See DaRosa v. Sec’y of Health and Human Servs.,

(1st Cir. 1986). A lack of a sufficiently explicit credibility finding becomes a ground for remand when credibility is critical to the outcome of the case. See Smallwood v. Schweiker,

(11th Cir. 1982). If proof of disability is based on subjective evidence and a credibility determination is, therefore, critical to the decision, “the ALJ must either explicitly discredit such testimony or the implication must be so clear as to amount to a specific credibility finding.” Foote v. Chater,

(11th Cir. 1995) (quoting Tieniber v. Heckler,

(11th Cir. 1983)). V. APPLICATION AND ANALYSIS A. The ALJ’s Decision This was a partially favorable decision for Plaintiff. She was successful on her SSI claim

as of April 18, 2019. However, her DIB claim for the period January 1, 2010 to December 31, 2013 (Plaintiff’s date last insured for DIB) was denied. The ALJ found that “there [was] a very limited medical record” for that “remote” period, and that those records did not support a finding of disability prior to December 31, 2013. (Tr. 21). B. The ALJ’s DIB Determination Was Not Based on a Fully and Fairly Developed Record It appears undisputed that Plaintiff’s SSI claim was improperly denied at the administrative reconsideration stage. On February 4, 2020, Dr. Hamel found at reconsideration that Plaintiff’s mental impairments met Listings 12.04 (bipolar disorder) and 12.08 (personality disorder) with

marked impairments in the areas of CPP (concentration, persistence, or pace), and social functioning. (Tr. 112). This finding apparently should have resulted in approval of Plaintiff’s SSI claim but, on February 22, 2020, a notice of denial of the SSI claim was mistakenly issued and Plaintiff’s SSI benefits were delayed. (Tr. 148-150). The ALJ promptly rectified this mistake by awarding SSI benefits to Plaintiff in his decision. At the ALJ hearing, Plaintiff’s counsel brought this apparent mistake to the attention of the ALJ, and the ALJ acknowledged the prior administrative finding that Plaintiff met certain Listings. (Tr. 38-39). After hearing some testimony from Plaintiff and her treating nurse practitioner, the issue is revisited and the ALJ states that he has “a pretty good idea at least for the record, Counsel, for the SSI period and total [INAUDIBLE] for the other period” and that he “need[s] to really look at this.” (Tr. 58). The ALJ also brings up the possibility that Plaintiff might dismiss her DIB claim given its “remoteness” and notes that “otherwise I’d have to ask further questions and possibly have another hearing on that whole issue which is a remote period.”

Plaintiff’s counsel responds by saying “right.”

Later, at the conclusion of the hearing, the ALJ has an exchange

with Plaintiff’s counsel and indicates that if Plaintiff is still pressing the DIB claim, “then I – we’ll have to relook at it.” (Tr. 68). Ultimately, Plaintiff did not withdraw her DIB claim, and the ALJ denied the claim without holding another hearing based on the finding that there was a “limited record” for the DIB period. (Tr. 21). At this point, it is impossible for me reviewing this hearing transcript (including the inaudible portion) to ascertain the ALJ’s intent regarding the DIB claim and the need for another hearing or what he meant by the need to take a “relook.” It is also impossible for me to ascertain how the ALJ’s comments were interpreted by Plaintiff’s counsel at the time, and whether he believed that a further hearing or development of the record on the DIB claim was in the cards. It

is also impossible for me to know if Plaintiff’s counsel may have asked additional questions at the hearing or taken some other action if he knew that another hearing would not take place. On balance, the way this played out strikes me as unique and potentially unfair to Plaintiff. If her SSI claim had been administratively granted as it should have, then her appeal would have focused solely on the “remote” DIB claim. Instead, she was forced to appeal for the wrongfully denied SSI benefits which necessarily drew immediate attention and focus away from the DIB claim. I can only assume that the ALJ had similar thoughts when he commented that another hearing or a “relook” might be necessary as to the DIB claim. Plaintiff also reasonably questions whether certain medical records of Dr. Mehring related to this “remote” period were reviewed or adequately evaluated and considered by either the state agency psychologists or the ALJ. It also is undisputed that certain records from Butler Hospital, which include the relevant period for the DIB claim, were not received by the Commissioner until 2021 and thus not in the record reviewed by the state agency psychologists or the ALJ. With the

benefit of hindsight, I conclude that the ALJ should have scheduled another hearing as he suggested might be needed to ensure that the record was fully and fairly developed before denying Plaintiff’s DIB claim due to a limited record. Thus, I recommend that this matter be remanded accordingly. CONCLUSION For the reasons discussed herein, I recommend that Plaintiff’s Motion for Reversal (ECF No. 14) be GRANTED and that the Commissioner’s Motion for an Order Affirming (ECF No. 17) be DENIED. I further recommend that Final Judgment enter in favor of Plaintiff remanding this matter for further administrative proceedings consistent with this decision.

Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to file specific objections in a timely manner constitutes waiver of the right to review by the District Court and the right to appeal the District Court’s decision. See United States v. Valencia-Copete,

(1st Cir. 1986); Park Motor Mart, In. v. Ford Motor Co.,

(1st Cir. 1980).

/s/ Lincoln D. Almond LINCOLN D. ALMOND United States Magistrate Judge July 13, 2022