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Vernon P. v. Berryhill

United States District Court, D. Maine

November 3, 2018

VERNON P., 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

         This Social Security Disability (“SSD”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing past relevant work as a construction inspector. The pro se plaintiff seeks remand on the bases that the ALJ ignored his neck condition, erroneously found no evidence of nerve root entrapment or impingement, relied on a failure to seek treatment for which he now offers an explanation, failed to consider the full record, and relied on notes of conversations he had with treating doctors that may not have been accurately recorded. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 21) at Page ID ## 368-72. At oral argument, the plaintiff clarified that, with respect to his second point, he contends that the ALJ erred in determining that his degenerative disc disease did not meet Listing 1.04 of Appendix 1 to Subpart P, 20 C.F.R. § 404 (the “Listings”).

         Finally, the plaintiff attaches 50 pages of documents to his statement of errors, a number of which are medical records postdating the ALJ's decision. See [Attachments] to Statement of Errors at Page ID ## 373-422. I have construed those attachments as a motion for remand for the consideration of new and material evidence pursuant to sentence six of 42 U.S.C. § 405(g).

         For the reasons that follow, I conclude that the plaintiff fails to make the showing necessary to warrant a sentence six remand and that the ALJ committed no error on the record available to her. Accordingly, 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; 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, 2018, Finding 1, Record at 13; that he had the severe impairments of degenerative disc disease of the lumbar spine, status post a mid-line laminectomy at ¶ 2-3, L3-4, L4-5, and L5-S1, and degenerative disc disease of the cervical spine, Finding 3, id.; that he did not have an impairment or combination of impairments that met or equaled in severity any of the Listings, Finding 4, id. at 14; that he had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), except that he could frequently balance and climb ramps and stairs and occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, or scaffolds, Finding 5, id. at 15; that he was capable of performing his past relevant work as a construction inspector, which did not require the performance of work-related activities precluded by his RFC, Finding 6, id. at 19; and that he, therefore, had not been disabled from June 2, 2014, his alleged onset date of disability, through July 15, 2016, the date of the decision, Finding 7, 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; 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 appends three categories of documents to his statement of errors: (i) duplicates of treatment notes that are already of record, compare Attachments at Page ID ## 377-84, 418 with Record at 267, 294-97, 300-03; (ii) treatment notes from 2010, 2011, and 2015, well before the ALJ's July 15, 2016, decision, see Attachments at Page ID ## 416-17, 419-22, and (iii) treatment notes created near or after the date of the ALJ's decision, some of which are explained in handwritten notes by the plaintiff, see id. at Page ID ## 373-76, 385-415.

         Duplicates of existing record materials plainly are not new and, therefore, cannot serve as a basis for a sentence six remand. See, 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).

         For similar reasons, a claimant cannot obtain a sentence six remand based on the proffer of documents that were available for inclusion in the record before the ALJ without demonstrating good cause for his or her failure to incorporate them into the record at that time. See, e.g., 42 U.S.C. § 405(g). The plaintiff, who was represented by counsel during proceedings before the ALJ, see Record at 39-40, offers no explanation for his belated proffer of those materials, see generally Statement of Errors.

         Moreover, to the extent that documents in this category touch on the discovery in 2015 of spots on the plaintiff's liver, see Attachments at Page ID ## 416-17, they are, as the commissioner notes, immaterial for two reasons, see Defendant's Opposition to Plaintiff's Itemized Statement of Errors (“Opposition”) (ECF No. 23) at 11. First, the plaintiff has never alleged disability stemming from a liver impairment and, second, to the extent that he supplies this evidence to support his concern that ...


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