United States District Court, W.D. New York
January 9, 2004.
COLLEEN M. KRESS, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
In her pro se complaint, plaintiff appeals from a final
decision of the Commissioner denying her disability insurance benefits
and supplemental security income. The Commissioner has moved to remand
the case for a rehearing pursuant to the fourth sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g). (Dkt. #9). The
Commissioner concedes that the Administrative Law Judge ("ALJ") erred
when determining plaintiff's mental residual functional capacity by
failing to explain adequately the basis for that determination and by
failing to consider the opinion of a consultative psychologist. The
Commissioner also concedes that the ALJ erred in determining that,
despite her mental residual functional capacity, plaintiff could perform
her past relevant work as a rental agent and sales associate without
discussing the basis for that conclusion. Plaintiff does not appear to
object to a remand.
The motion to remand pursuant to the fourth sentence of section 205(g)
is granted, the Commissioner's decision is reversed, and the Commissioner
is directed to conduct a rehearing
concerning plaintiff's claims and, specifically, to address those
matters conceded as errors in the Commissioner's motion papers in this
Although the ALJ erred, this case is not one that justifies a remand
for calculation and payment of benefits. Such a directive by this Court
is appropriate only if the record provides "persuasive evidence of total
disability that render[s] any further proceedings pointless."
Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 2000) (citations
omitted). The record here is in some conflict concerning plaintiff's
mental residual functional capacity and, because the ALJ determined that
plaintiff could perform her past relevant work, there has been no
fifth-step analysis as to whether other jobs exist in the national
economy that plaintiff could perform. Therefore, further administrative
proceedings are necessary. Id. ("a remand for further
proceedings is the appropriate remedy when an erroneous step four
determination has precluded any analysis under step five.").
I note that in response to the Commissioner's motion for remand,
plaintiff sent documents to the Court, including original medical
records, that are not part of the certified transcript, and some of which
postdate the Commissioner's final decision. The Court cannot consider
these documents for the first time at this juncture. Because the Court is
remanding the case for further administrative proceedings, the
Commissioner is directed to determine whether these documents should be
considered new evidence material to the disability determination, such
that they should be considered in the rehearing. See
20 C.F.R. § 404.977, 404.983; 20 C.F.R. § 416.1477, 416.1483. The Assistant
United States Attorney assigned to this case is directed to take
possession of these documents (which were sent by plaintiff and received
by this Court on April 24, 2003 and May 29,
2003, respectively) and transmit them to the appropriate
authorities at the Social Security Administration for proper appropriate
consideration consistent with this Decision and Order.
The Commissioner's motion to remand (Dkt. #9) pursuant to the fourth
sentence of section 205(g) of the Social Security Act is granted, the
decision of the Commissioner is reversed, and the case is remanded to the
Commissioner of the Social Security Administration for further
proceedings consistent with this Decision and Order.
IT IS SO ORDERED.
© 1992-2004 VersusLaw Inc.