United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge
Social Security Disability (“SSD”) and
Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff capable
of performing past relevant work as a housekeeper. The
plaintiff, who is proceeding pro se, seeks remand
primarily on the basis that the ALJ did not consider evidence
of record from her treating endocrinologist, Ana Mendoza,
M.D., obtain updated evidence from Dr. Mendoza, or obtain any
evidence at all from treating eye doctor Alesia Higgins,
D.O., of Family Eyecare or treating social worker Lesley
Tyler, L.C.S.W. See generally [I]temized
[S]t[ate]m[en]t of [S]pecific [E]rrors (“Statement of
Errors”) (ECF No. 16) & Exh. 16-1 thereto. She also
argues that the ALJ failed to consider her diagnosis of
adjustment disorder with anxiety and identifies a number of
typographical or factual errors in the record. See
generally Statement of Errors.
the filing of her statement of errors, the plaintiff also
filed a standalone form completed by a treating nurse
practitioner, Sharon Piper, P.M.H.-N.P., dated June 12, 2018.
See ECF No. 18. The commissioner reasonably
construes this filing as a motion for a so-called
“sentence six remand.” See
Defendant's Opposition to Plaintiff's Statement of
Errors (“Opposition”) (ECF No. 19) at 16-19.
reasons that follow, on the showing made, I recommend that
the court deny the motion for remand and affirm the
The ALJ's Decision
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, 2019, Finding 1, Record at
12; that she had the severe impairments of anxiety and
personality related disorders, Finding 3, id.; that
she had the residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels but
with the following nonexertional impairments: she was able to
be reliable and sustain two-hour blocks of time at simple
tasks at a consistent pace without significant interruption
from mental symptoms over a normal workday or week, was able
to interact with coworkers and supervisors in a normal work
setting but unable to work with the public, and was able to
adapt to routine changes, avoid common hazards, and make
basic decisions, Finding 5, id. at 15; that she
could return to past relevant work as a housekeeper, which
did not require the performance of work-related activities
precluded by her RFC, Finding 6, id. at 20; and that
she, therefore, had not been disabled from August 5, 2014,
her alleged onset date of disability, through the date of the
decision, July 26, 2017, Finding 7, id. at 21-22.
The Appeals Council declined to review the decision,
id. at 1-4, 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).
Motion for Sentence Six Remand
Applicable Legal Standards
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).
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).
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.
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).
form dated June 12, 2018, N.P. Piper indicated that the
plaintiff's disabling conditions are major depression,
recurrent, moderate, and generalized anxiety, that she could
not engage in employment for 30 or more hours per week, and
that she would be unable to do so for “[a]t least one
year or longer[.]” ECF No. 18.
argument, the plaintiff observed that she could not have
submitted this document sooner because it did not yet exist.
However, she did not address the question of how this
evidence could alter the outcome of her case. This is an
insufficient showing to obtain a sentence six remand.
event, as the commissioner argues, see Opposition at
18, nothing on the face of the Piper document demonstrates
that it is “material, ” as in “necessary to
develop the facts of the case fully, ”
Evangelista, 826 F.2d at 139.
Piper writes in the present tense, expressing no opinion
concerning the plaintiff's condition during the relevant
time frame, from August 5, 2014, through July 26, 2017.
See ECF No. 18. She identifies no facts or findings
in support of her opinion. See id. She describes no
specific limitations flowing from the plaintiff's
depression and anxiety. See id. Finally, the sole
opinion that she does provide - that the plaintiff is
disabled and cannot work more than 30 hours per week -
“is an opinion on an issue reserved to the commissioner
and, thus, entitled to no special significance even if
offered by a treating source[, ]” Brown v.
Berryhill, No. 1:17-cv-00196-JAW, 2018 WL 1891572, at *4
(D. Me. Apr. 20, 2018) (rec. dec., aff'd May 9,
2018) (citing 20 C.F.R. §§ 404.1527(d)(1), (3),
416.927(d)(1), (3)). “[T]he failure of an [ALJ] to
adopt a treating medical source's opinion on an issue
reserved to the commissioner cannot, standing alone, provide
the basis for remand.” Id. (citation and
internal quotation marks omitted).
plaintiff having failed to meet her burden of demonstrating
that the ALJ's decision might reasonably have been
different if the ALJ had the benefit of review of the Piper
form, I recommend that her motion for a sentence six remand
Statement of Errors