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Caleb B. v. Berryhill

United States District Court, D. Maine

June 30, 2018

CALEB B., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          RECOMMENDED DECISION ON MOTION FOR REMAND AND STATEMENT OF ERRORS [1]

          John H. Rich III United States Magistrate Judge

         The plaintiff challenges an administrative law judge's (“ALJ's) finding that, for purposes of his Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) claims, he was not disabled prior to April 16, 2015, and seeks remand on the basis of the submission of evidence that he argues is new and material, see Motion To Remand on Behalf of Plaintiff [] (“Motion for Remand”) (ECF No. 24) and, in the alternative, on the basis that the ALJ erred in evaluating both the medical opinion evidence and his statements concerning his symptoms and limitations, see Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 15) at 6-13. For the reasons that follow, I conclude that the evidence that the plaintiff proffers is neither new nor material and that the ALJ committed no reversible error in weighing the opinion evidence or in assessing the plaintiff's statements. Hence, I recommend that the court deny the Motion To 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 December 31, 2014, Finding 1, Record at 22; that, since his alleged onset date of disability, January 17, 2013, he had the severe impairments of multiple sclerosis (“MS”), cervical/lumbar degenerative disc disease, psoriatic arthritis, major depressive disorder, and cognitive disorder, Finding 3, id.; that, prior to April 16, 2015, the date on which he became disabled, he did not have an impairment or combination of impairments that met or medically equaled the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”), Finding 4, id.; that, prior to April 16, 2015, he had the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except that he could lift/carry up to 10 pounds frequently and occasionally, sit for two hours at a time for a total of six hours in an eight-hour workday, stand for one hour at a time for a total of two to three hours in an eight-hour workday, walk for 15 to 30 minutes at a time for a total of two to three hours in an eight-hour workday, perform up to occasional overhead reaching-pushing-pulling bilaterally and up to occasional pushing-pulling of foot controls bilaterally, needed a handrail for occasional climbing of stairs, could not climb ladders/scaffolds, could occasionally stoop, balance, and kneel, could not crouch or crawl, could have up to occasional exposure to moving mechanical parts but no exposure to unprotected heights or dangerous machinery, could drive occasionally but do no commercial driving, could have no exposure to extreme cold/heat, and had a limitation in concentration/persistence/pace with an ability to understand, carry out, and remember only simple tasks, and a limitation in social functioning requiring object-oriented tasks with only up to occasional work-related interaction with the general public, Finding 5, id. at 23; that, considering his age prior to April 16, 2015 (a younger individual), 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 have performed, Findings 7-10, id. at 27; and that he, therefore, had not been disabled at any time through December 31, 2014, his date last insured, for purposes of his SSD claim or at any time prior to April 16, 2015, for purposes of his SSI claim, filed on December 18, 2013, Finding 14, id. at 29. 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 Standard

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 note, 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

         The plaintiff seeks a sentence six remand on the basis that, although he requested that the ALJ incorporate his file from a prior unsuccessful claim for disability benefits into the record in this case, and the ALJ assured his counsel that she had the prior file, she neither included the file in the record nor referred to it in the instant decision. See Memorandum of Law in Support of Motion To Remand on Behalf of Plaintiff [] (“Remand Memo”) (ECF No. 24-1), attached to Motion To Remand, at 2-6. He appends to his motion 243 pages of documents that he represents constitute the prior claim file. See id. at 1; Exh. One (“Prior Claim File”) (ECF No. 24-2) to Motion To Remand.

         The plaintiff contends that the prior file is both new and material and that he has shown good cause for its omission from the record before the ALJ. See Remand Memo at 2-6; Reply in Support of Motion To Remand on Behalf of Plaintiff [] (“Remand Reply”) (ECF No. 27) at 1-5. The commissioner disputes that any of these tests is met. See Defendant's Response to Plaintiff's Motion for Remand Pursuant to Sentence Six of 42 U.S.C. § 405(g) (“Remand Response”) (ECF No. 26) at 2-8. I agree that the plaintiff has failed to demonstrate either the newness or the materiality of the proffered documents. Because each of these shortcomings is independently fatal to his bid for remand pursuant to section six, I do not reach the question of whether he has shown good cause for the omission of the prior claim file from the record.

         1. Newness of Old Claim File

         As the commissioner observes, see id. at 3, the prior claim file is not “new” in that the documents contained therein were considered in connection with an adverse ALJ decision dated November 29, 2012, which became administratively final when the plaintiff filed no appeal of the Appeals Council's December 6, 2013, denial of his request for review, see Record at 98-107, 113-16.

         The plaintiff responds that:

         1. Because the commissioner refused to agree to his request to supplement the record before this court with the contents of the prior claim file, his only recourse was to file the instant motion. See Remand Reply at 1-2 (describing motion as “the only appropriate procedural mechanism for requesting that the Court consider providing relief on the basis of evidence that was presented to the ALJ and nevertheless not considered by the ALJ or included in the administrative record filed with the Court”) (emphasis in original).

         2. The ALJ had an affirmative duty to develop the record, and her failure to do so requires remand. See id. at 2.

         3. The longitudinal history contained in the prior claim file was relevant to the instant claims. See id.

         None of these arguments bears on the “newness” of the prior claim file.

         In any event, although neither side cites caselaw for the proposition that a prior claim file does or does not meet the “newness” standard for purposes of a sentence six remand, my research reveals that at least one court has addressed the issue, concluding that it does not. In that case, as here, the claimant contended that evidence from her prior claim file “was wrongfully withheld from the administrative record by the [c]ommissioner and . . . constitutes new evidence material to the matter of her mental retardation on this claim.” Crist v. Astrue, No. 8:06-cv-1587-T-26TBM, 2008 WL 821934, at *6 (M.D. Fla. Mar. 26, 2008). The court rejected that argument, concluding, “Simply stated, the records from Plaintiff's prior claim are not ‘new evidence' in contemplation of the new evidence standard discussed above[.]”). Id. at *8. See also, e.g., Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990) (“The sixth sentence of § 405(g) plainly describes an entirely different kind of remand [from a sentence four remand], appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding.”) (footnote omitted) (emphasis added). The prior claim file was both in existence and available to the plaintiff at the time of the administrative proceeding.

         On the showing made, the plaintiff fails to demonstrate that the evidence was “new.”

         2. Materiality of Old Claim File

         Even assuming that the prior claim file qualified as “new” for purposes of sentence six, the plaintiff's motion for remand pursuant thereto would founder on the materiality prong of the analysis.

         The plaintiff argues that the claim file is material because:

         1. The ALJ relied primarily on the testimony of medical expert of John A. Pella, M.D., at hearing on March 17, 2016, (ii) Dr. Pella testified that, prior to April 2015, the plaintiff's cognitive defect was “‘mild'” and “‘the other issues [we]re primarily subjective[, ]'” and (iii) a report of a neuropsychological evaluation and testing completed at the Brain Clinic of Central Maine (“Brain Clinic”) in April 2011, contained in the prior claim file, provided an objective diagnosis of a cognitive disorder and indicated that the plaintiff “‘demonstrated weaknesses and/or impairments in some aspects of mental processing speed, complex attention skills, and sustained attention skills.'” Remand Memo at 4-5 (quoting Prior Claim File at Page ID ## 779-80).

         2. The ALJ gave “‘little probative weight'” to the opinions of treating neurologist James Stevenson, M.D., who expressly referenced the April 2011 Brain Clinic evaluation as a basis for those opinions. Id. at 5 (quoting Record at 26).

         3. The prior claim file contained (i) May 2011 opinions of Dr. Stevenson that were consistent with his later opinions, as well as Dr. Stevenson's contemporaneous treatment records, and (ii) an August 2012 opinion of treating physician Timothy T. Goltz, M.D., that the plaintiff had greater limitations than assessed by the ALJ, precluding the performance of the full range of work even at the sedentary level, as well as Dr. Goltz's contemporaneous treatment records. See id.; see also, e.g., Prior Claim File at 678-80 (medical source opinion (physical) of Dr. Goltz dated August 1, ...


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