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Lynn W.N. v. Berryhill

United States District Court, D. Maine

January 20, 2019

TAMMY LYNN W.N., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge

         This 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.

         Following 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.

         For the reasons that follow, on the showing made, 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, 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).

         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

         In her 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.

         At oral 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.

         In any 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.

         N.P. 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).

         The 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 be denied.

         III. Statement of Errors

         A. ...


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