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Chantal v. Berryhill

United States District Court, D. Maine

January 29, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant



         The plaintiff challenges an administrative law judge's (“ALJ's) denial of his applications for Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) benefits, seeking remand of his SSI claim on the basis of the submission of new evidence that he argues is material to the denial of that claim, see Contested Motion for Sentence Six Remand (“Motion for Remand”) (ECF No. 16) at 1-2, and remand of both claims on the basis that the ALJ erred in multiple respects in denying them on the record before him, see Plaintiff's Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 10) at 2-19. For the reasons that follow, I conclude that the new evidence is not material to the denial of the plaintiff's SSI claim and that the ALJ committed no error in denying both his SSD and SSI claims. Hence, I recommend that the court deny the Motion for Remand and affirm the commissioner's decision.

         I. The ALJ's Decision

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through September 30, 2005, Finding 1, Record at 23; that he had a severe impairment of antisocial personality disorder, Finding 3, id.; that he had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but with the following nonexertional impairments: he could on a sustained, competitive basis (i) understand and remember simple instructions, (ii) use judgment in making simple work-related decisions, (iii) respond appropriately to supervisors, co-workers, and usual work situations not involving the public, and (iv) adapt to changes in the ordinary work setting, Finding 5, id. at 27; that, considering his age (49 years old, defined as a younger individual, on his alleged disability onset date, June 1, 2003, and 62 years old, defined as an individual closely approaching retirement age, on the date of the decision, September 9, 2015), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 35; and that he, therefore, had not been disabled from June 1, 2003, through the date of the decision, Finding 11, id. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         II. Motion for Sentence Six Remand

         A. Applicable Legal Standards

         Sentence six of 42 U.S.C. § 405(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[.]

42 U.S.C. § 405(g).

         Typically, a request for a sentence six remand concerns “new evidence . . . tendered after the ALJ decision.” Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001) (citation and internal quotation marks omitted). Sentence six allows for a “pre-judgment remand” and obviates a ruling on the existing administrative decision based on the existence of good cause for remanding for further evidentiary proceedings. See, e.g., Seavey v. Barnhart, 276 F.3d 1, 13 (1st Cir. 2001); Freeman v. Barnhart, 274 F.3d 606, 610 (1st Cir. 2001).

         On a cautionary level, the First Circuit has observed that “Congress plainly intended that remands for good cause should be few and far between, that a yo-yo effect be avoided - to the end that the process not bog down and unduly impede the timely resolution of social security appeals.” Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 141 (1st Cir. 1987). Thus, prejudgment remand is only appropriate where there is good cause for the claimant's failure to introduce the evidence at the administrative hearing and the evidence in question is new and “material, ” as in “necessary to develop the facts of the case fully[.]” Id. at 139.

         New evidence of an infirmity or impairment is not automatically material. The party seeking remand must show that the evidence is not merely cumulative and that consideration of the evidence is essential to a fair hearing, see id.; in other words, that the earlier decision “might reasonably have been different” had the evidence been considered by the commissioner, id. at 140 (citation and internal quotation marks omitted). There is a temporal concern, as well. The evidence must be material to the issue of “the claimant's condition during the time period for which benefits were denied[, ]” as opposed to the development of a new disability. Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988).

         B. Discussion

         “No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms[, ]” Social Security Ruling 96-7p, reprinted in West's Social Security Reporting Service, Rulings 1983-1991 (Supp. 2017) (“SSR 96-7p”), at 132; see also 20 C.F.R. § 416.908. A plaintiff's own reports to medical providers do not establish the existence of a medically determinable impairment. See 20 C.F.R. § 416.928(a); Harthorne v. Astrue, Civil No. 08-120-B-W, 2008 WL 4937806, at *7 (D. Me. Nov. 16, 2008) (rec. dec., aff'd Dec. 8, 2008).

         The ALJ made no allowance for the plaintiff's alleged left shoulder, neck, and arm pain, low back pain, or right side and right hip pain, finding that he had failed to demonstrate the existence of any medically determinable impairment to which those symptoms could be attributed. See Record at 24. He further noted that the plaintiff took no medication, had never undergone any other courses of conservative treatment for his pain, including physical therapy, steroid injections, and osteopathic manipulative treatment, and had never been referred for or undergone any imaging studies. See id. at 25. He added that, but for the findings of examining physician Frank A. Graf, M.D., in January 2015, findings on physical examination had been unremarkable. See id. He observed that the fact that Dr. Graf suspected that the plaintiff had bilateral rotator cuff arthropathy and cervical and thoracic degenerative disc disease did not suffice to support a diagnosis of those conditions. See id.[1]

         The plaintiff asserts that a Sentence Six remand is warranted because, on April 19, 2017, the commissioner deemed him disabled retroactive to December 12, 2016, the date of a subsequent application for SSI benefits, after obtaining a series of x-rays on March 29, 2017, that the plaintiff contends substantiate his prior complaints of physical pain. See Motion for Remand at 3; Attachs. A (ECF No. 16-1) & D (ECF No. 16-5) thereto. For the reasons that follow, I conclude that the plaintiff fails to demonstrate that the March 2017 x-rays relate to his condition on or before September 9, 2015, the date of the earlier adverse decision, or are otherwise material in the sense that the earlier decision might reasonably have been different had this evidence been considered by the ALJ.

         The commissioner deemed the plaintiff disabled effective December 12, 2016, pursuant to section 202.04 of Appendix 2 to 20 C.F.R. Part 404, Subpart P (the “Grid”), which directs a finding of disability for individuals who are limited to a maximum sustained work capacity of light work, are of advanced age (55 and over), are high school graduates or more but do not have an education providing for direct entry into skilled work, and have either unskilled or no previous work experience. See Attach. C-2 (ECF No. 16-4) to Motion for Remand at Page ID # 868; Grid §§ 200.00(f), 202.04.

         As the commissioner observes, see Defendant's Opposition to Plaintiff's Motion To Remand Under Sentence Six (“Remand Opposition”) (ECF No. 18) at 3 & n.1, the plaintiff was found to be limited to light work because agency nonexamining consultant Archibald Green, D.O., opined that he was capable of lifting and/or carrying only up to 20 pounds occasionally and 10 pounds frequently during an eight-hour workday, see Attach. C-2 at Page ID # 862; 20 C.F.R. § 416.967(b) (“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.”).[2]

         In turn, as the commissioner points out, see Remand Opposition at 4, Dr. Green attributed the plaintiff's lifting limitation solely to shoulder dysfunction, see Attach. C-2 at Page ID # 862. Yet, no x-ray or other imaging study was done of the plaintiff's shoulders: the March 29, 2017, x-rays were of his lumbar spine, thoracic spine, cervical spine, and bilateral hips/pelvis. See Attach. D. Instead, Dr. Green apparently relied on the findings of agency examining consultant Ira W. Stockwell, D.O., who issued a report dated February 24, 2017, describing the following findings on examination of the plaintiff's shoulders:

When asked to abduct his shoulders, [the plaintiff] could get them to about 90 degrees and no further when a normal person could do a 180-degree arc. He could not perform the Apley scratch maneuver. The Neer test in both shoulders was slightly positive. The apprehension test, however, was performed and was weakly positive. He did have some pain. His shoulder exam was definitely abnormal and showed dysfunction. There may have been some degree of symptom magnification, however, but it would appear that he has significant most likely rotator cuff disease of the shoulders, giving him a positive Neer and Hawkins test bilaterally. The hand grip bilaterally was markedly decreased at 1/5 and I question his effort and symptom magnification.

         Attach. E (ECF No. 16-6) to Motion for Remand at Page ID # 881 (emphasis in original).

         While Dr. Stockwell noted that the plaintiff had “been examined by Dr. Frank [an apparent reference to Dr. Graf], an orthopedic surgeon, at the behest of a lawyer . . . not too long ago and ha[d] been diagnosed with significant rotator cuff disease and shoulder dysfunction[, ]” he did not, himself, purport to diagnose a particular shoulder condition. Id. at Page ID ## 878-83.

         As a threshold matter, it is doubtful that, if the ALJ had the benefit of review of the 2017 Stockwell opinion, he would have revised his opinion that there was no medically determinable shoulder impairment. Dr. Stockwell made no independent diagnosis, and the ALJ had previously considered Dr. Graf's findings and rejected them as inadequate to demonstrate such an impairment. See Record at 33.

         In any event, even assuming arguendo that the new evidence would have sufficed to demonstrate the existence of a medically determinable shoulder impairment, the plaintiff fails to show that it relates to his condition on or before September 9, 2015. He argues generally that because he is an older person, now 64 years old, “it is likely his physical problems are long standing[.]” Motion for Remand at 5. Yet, as the commissioner rejoins, see Remand Opposition at 6-7, “[i]t is incorrect to find that an individual has limitations or restrictions beyond those caused by his or her medical impairment(s) including any related symptoms, such as pain, due to factors such as age or height, or whether the individual had ever engaged in certain activities in his or her past relevant work (e.g., lifting heavy weights)[, ]” Social Security Ruling 96-8p (“SSR 96-8p”), reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2017), at 144.

         Moreover, the plaintiff's shoulder condition seemingly worsened during the interim between July 10, 2013, when Dr. Stockwell examined him in connection with the adverse decision at issue, and February 24, 2017, when he examined him in connection with his December 12, 2016, SSI claim. In 2013, Dr. Stockwell's findings on examination of the plaintiff's left shoulder (the only shoulder with respect to which the plaintiff then reported pain) were relatively benign:

He exhibits a slight decreased range of motion, but he is not consistent with this when I examined him as the first time I examined his shoulder dysfunction there was a slight decrease, but he could abduct[] his left arm practically all the way when compared with his right without any major difficulty.

         Record at 660. This calls into question the relevance of the 2017 Stockwell findings to any assessment of the plaintiff's shoulder condition on or before September 9, 2015.

         Turning to the x-rays, the plaintiff contends that their existence alone warrants a Sentence Six remand because they document medically determinable physical impairments, and the lack thereof was a key basis on which the ALJ found that he had no such impairments. See Motion for Remand at 2-3; Reply to Opposition to Motion for Sentence Six Remand (“Remand Reply”) (ECF No. 19) at 3, 7. He reasons that, accordingly, this is a rare case in which Sentence Six remand is warranted to determine whether, based on his now-documented physical impairments alone, or his combination of physical and previously acknowledged mental impairment, he was disabled as of September 9, 2015. See Motion for Remand at 5-6; Remand Reply at 3, 7.

         The commissioner rejoins that the mere existence of the x-ray reports fails to demonstrate that remand is warranted, asserting that the plaintiff has failed to show, and the x-rays on their face do not otherwise make plain, that they substantiate his pain complaints on and prior to September 9, 2015. See Remand Opposition at 3-5. The plaintiff takes issue with the commissioner's characterizations of the substance of the x-rays, asserting that the arguments of lawyers concerning their significance are irrelevant and, in any event, a layperson ...

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