Timothy Glasco v. Comm. of Social Security

Filing

OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication. Martha Craig Daughtrey, Karen Nelson Moore and Richard Allen Griffin (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0210n.06
No. 15-3964

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

TIMOTHY E. GLASCO,

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Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.

Apr 14, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

BEFORE: DAUGHTREY, MOORE, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Timothy Glasco, an aggrieved applicant for disability insurance benefits, appeals
the district court’s decision denying his motion to remand under “sentence six” of 42 U.S.C.
§ 405(g). We affirm.
I.
Glasco has battled a number of medical ailments for most of his adult life. Relevant here
are those conditions that affected his ability to work between February 24, 2004, plaintiff’s
alleged disability onset date, and December 31, 2008, plaintiff’s date of last insured. Glasco
suffered a back injury in 2004 (the precise date is unclear from the record) when a beam fell on
his head. This injury, in turn, exacerbated a pre-existing condition involving severe joint pain in
Glasco’s arms, legs, and back. In August 2004, Glasco visited Dr. Vivian Hobayan, reporting

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widespread pain in his muscles and joints. Although Dr. Hobayan’s treatment seemed promising
at first, Glasco’s pain persisted. The record shows that he visited Dr. Mary Ann Meyers on
November 9, 2005, complaining of head and neck pain associated with fibromyalgia and
“markedly diminished” sensitivity in his upper limbs. In August 2006, Glasco returned to see
Dr. Hobayan, at which point she diagnosed Glasco with fibromyalgia, myofascial pain, and
osteoarthritis. She prescribed Lyrica, which Glasco reported on multiple occasions partially
relieved his symptoms.
Plaintiff applied for social security disability insurance benefits on January 5, 2012. This
was not his first application. Glasco previously filed a claim in 2004, which was denied.
Unfortunately, the file relating to that claim was destroyed, and, therefore, the Commissioner
could not rely on the prior adjudication in deciding plaintiff’s 2012 application claim. In his
2012 application, Glasco listed ten medical conditions that limited his ability to work, including
fibromyalgia, hemochromatosis, and depression.

He also named eleven individuals or

organizations “who may have medical records about any of [his] physical and/or mental
condition(s) . . . .” The state agency in charge of processing disability insurance applications
requested records from each of the medical providers.
After reviewing the medical records—most of which were from outside the relevant
2004–to–2008 time period—the agency denied Glasco’s claim. It determined that Glasco’s
records did not establish a medical condition severe enough to prevent him from working during
the relevant time period. Glasco sought reconsideration. As part of that process, he provided the
names of three additional medical providers who treated him between 2004 and 2008. Taking
into account these additional records, the agency affirmed its earlier decision to deny benefits.

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Plaintiff sought a hearing before an administrative law judge (ALJ). The agency advised
plaintiff multiple times of his right to legal representation, including from the ALJ himself at the
outset of plaintiff’s hearing. Plaintiff declined. At the hearing, plaintiff testified that he suffered
from constant joint pain, which he said was exacerbated by cold, wet weather and only partially
relieved by medication and other home remedies. Glasco indicated that he could not sit or stand
for longer than thirty minutes to an hour at a time, though he walked “a lot” and could lift and
carry forty to fifty pounds, allowing him to help out with certain household chores. Plaintiff’s
wife, Roberta Glasco, corroborated that plaintiff suffered from intermittent, but significant, pain
in his back and limbs, and that he could not sit “for any real length of time.” However, she also
testified that Glasco had significant balance problems, hindering his ability to walk, and he could
not lift much of anything. The third and final witness, vocational expert George Coleman, III,
testified that, assuming someone had physical limitations that restricted him to only “light” or
even “sedentary” work, a significant number of jobs fitting that description—including hand
packager, facility rental clerk, and routing clerk—existed in the national economy between 2004
and 2008.
On the basis of the witnesses’ testimony and medical records on file, the ALJ determined
that plaintiff was not entitled to disability insurance benefits because his impairments were not so
severe that he could not perform “light” jobs, which were available in significant numbers in the
national economy. Plaintiff appealed the ALJ’s decision to the Appeals Council, which denied
his request for review.
Plaintiff then obtained legal counsel and filed a complaint in federal district court
challenging the ALJ’s decision. Plaintiff filed a motion to remand, claiming that he obtained
seven sets of medical records from the relevant time period that were not included in the file
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below. As part of his motion, he faulted the Commissioner for failing to adequately develop the
Unable to determine whether plaintiff was seeking a so-called “sentence four” or

record.

“sentence six” remand,1 the magistrate judge recommended that the motion be denied under
either theory.

To the extent the motion sought a “sentence six” remand, the magistrate

concluded that the evidence was not new or unavailable to plaintiff during the administrative
proceedings. The district court adopted the recommendation over plaintiff’s objections and
entered an order denying the motion and affirming the denial of disability insurance benefits.
On appeal, plaintiff has abandoned any claim regarding a “sentence four” remand, and he
does not challenge the merits of the ALJ’s decision to deny his application for benefits. His sole
contention is that the district court erred in denying his motion to remand under sentence six of
§ 405(g).2
II.
A claimant who is denied social security disability insurance benefits may seek review of
the decision in federal court. See 42 U.S.C. § 405(g). As part of that review, the district court
may remand the case for additional proceedings “upon a showing that there is new evidence

1

As we recently explained, “Section 405(g) permits two types of remand: (1) prejudgment, under sentence six; and (2) post-judgment, under sentence four.” DeLong v. Comm’r
of Soc. Sec. Admin., 748 F.3d 723, 725 n.3 (6th Cir. 2014). Whereas a “sentence four” remand
involves a substantive ruling by the court as to the correctness of the Commissioner’s decision
and a subsequent remand for further proceedings in light of that determination, see Hollon ex rel.
Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006), a “sentence six” remand is
unrelated to the merits of the Commissioner’s decision and is appropriate when “new evidence
has come to light that was not available to the claimant at the time of the administrative
proceeding and that evidence might have changed the outcome of the prior proceeding,”
Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991).
2

It is unsettled in this circuit whether we review § 405(g) remand decisions de novo or for
an abuse of discretion. See Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010).
We need not settle it here because the outcome is the same under either standard.
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which is material and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding[.]” Id. Under this so-called “sentence six” remand, a claimant
wishing to submit additional evidence to the ALJ must establish (1) that the evidence is “new” or
was otherwise unavailable to the claimant, (2) that the evidence is “material,” and (3) that he or
she has “good cause” for failing to submit the evidence below. Hollon, 447 F.3d at 483. Failure
to establish any one of these three elements is fatal to the moving party’s request. See Sizemore
v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 n.1 (6th Cir. 1988).
The first requirement of a sentence six remand is that the evidence must not have been in
existence or available to the claimant at the time of the administrative proceeding. Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990). Plaintiff concedes that none of the additional evidence is
“new” in the sense that it was not in existence at the time of the administrative proceedings. He
argues instead that it was “unavailable” to him during the administrative proceedings. In support
of this contention, plaintiff advances a combination of mental health issues, lack of legal
representation, and bureaucratic incompetence. We address each in turn.
In his brief on appeal, plaintiff contends that his mental health had significantly
deteriorated by the time he applied for benefits and attended his hearing before the ALJ,
“rais[ing] questions” about his competence to gather information relating to the pertinent time
period.

However, as the party who bears the burden of establishing “unavailability,” plaintiff

must do more than “raise questions” about his capacity to comprehend the nature of the
administrative proceedings below. See Oliver v. Sec’y of Health & Human Servs., 804 F.2d 964,
966 (6th Cir. 1986) (“It is well established that the party seeking remand bears the burden of
showing that a remand is proper under Section 405.”). Plaintiff all but concedes he failed to
meet this burden when he admits “that the mental health evidence between those dates [his 2012
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application and his August 2013 hearing] is at best inadequate.” In any event, the record shows
that plaintiff was well aware of his obligation to provide information relating to his disabilities
and, in particular, any treatment history between 2004 and 2008. The clearest evidence of this is
the fact that, during reconsideration of the initial denial of benefits, Glasco provided the agency
with the names of three additional treating sources “he believes he seen [sic] b/w 2004-2008[.]”
Plaintiff also argues that if he had legal representation, these records would have been
included in his file. But even plaintiff agrees that “lack of representation, by itself, may not be
sufficient to warrant a remand.” See also Duncan v. Sec’y of Health and Human Servs., 801 F.2d
847, 856 (6th Cir. 1986) (mere fact that a claimant is unrepresented is not grounds for reversal).
That plaintiff may have fared better with retained counsel does not make evidence “unavailable”
as to him. As indicated above, plaintiff understood the significance of obtaining medical records
from the 2004–to–2008 timeframe. Furthermore, Glasco received multiple notices regarding his
right to representation, as well as a detailed explanation from the ALJ himself. Having stated on
the record that he understood his rights and wished to “go forward with [the hearing],” there is
no indication plaintiff’s decision to forego counsel was unknowing or involuntary.
This brings us to the predominant focus of plaintiff’s unavailability argument:
bureaucratic incompetence. In his first attack along these lines, plaintiff argues that the agency
failed to notify him that his prior file was destroyed and that the accompanying records were
therefore not in his current file. He also contends that the agency never told him he needed to
provide records from 2004 to 2008. We disagree on both points. In its initial decision denying
Glasco’s application, the agency indicated that “[the p]rior file has been destroyed. Cannot adopt
prior ALJ/AC decision.” The accompanying notice also listed the medical reports used in
making the initial determination. Furthermore, the agency provided Glasco the contents of his
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file in advance of his hearing before the ALJ. Thus, Glasco was well aware both that the prior
file had been destroyed and of the contents of his current file. Furthermore, as indicated above,
Glasco followed up with the agency and provided three treating sources specific to the 2004–to–
2008 timeframe, demonstrating that he was well aware he needed to provide information relating
to that period.
In his second line of attack, plaintiff contends that the agency provided misleading and
ambiguous document requests to his medical providers, rendering the record incomplete. Again,
we disagree. First, four of the seven sets of medical records plaintiff wishes to submit on
remand—those from Drs. Ahmad Al-Khatib, Karri Krendl, and Hernan Jimenez-Medina, and the
Ohio Rehabilitations Services Commission—come from sources that plaintiff never disclosed to
the agency during his application process. The agency can hardly be blamed for not requesting
information from treating sources plaintiff himself did not disclose. Plaintiff observes that these
sources were referenced in the medical records on file, but he provides no authority for the
proposition that the agency must comb through thousands of pages of medical records for
references to other potential treating sources, to which it must then submit record requests. To
the contrary, claimants are responsible for identifying their “medical source(s),” 20 C.F.R.
§ 404.1512(c)(1), after which the Commissioner must “make every reasonable effort to help you
get medical reports from your own medical sources when you give us permission to request the
reports,” 20 C.F.R. § 404.1512(d). “Every reasonable effort” requires the Commissioner to
“make an initial request for evidence from your medical source,” i.e., those providers identified
by the claimant. 20 C.F.R. § 404.1512(d)(1). That is precisely what happened in this case.
As for the remaining three sources of medical records, which plaintiff disclosed in his
application and to whom the state agency sent record requests, plaintiff contends that these
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treating sources did not produce all relevant documentation because the agency’s requests were
confusing and ambiguous.

Yet, the agency’s record request to one of the providers, Dr.

Hobayan, could not have been clearer. It said, “Please send all records from 2004-2008.” With
respect to the remaining two providers, Drs. Jonah Ukiwe and Ahmad Anouti, the basis for
plaintiff’s characterization of their record requests is unclear, as those forms are not in the
record. If, like others in the record, the requests specified no dates at all, that does not make
them ambiguous, it simply makes them overbroad.
Even if we assume that Dr. Hobayan’s, Dr. Ukiwe’s, and Dr. Anouti’s failure to provide
all relevant records made the newly obtained records “unavailable” to plaintiff, he fails to
establish their materiality. See 42 U.S.C. § 405(g) (requiring that “there is new evidence which
is material . . .” (emphasis added)). In order to establish that new evidence is material, a plaintiff
must show that there is “a reasonable probability that the Secretary would have reached a
different disposition of the disability claim if presented with the new evidence.” Foster v.
Halter, 279 F.3d 348, 357 (6th Cir. 2001) (quoting Sizemore, 865 F.2d at 711). Plaintiff makes
no argument with respect to the materiality of the medical records from Drs. Hobayan and
Anouti. He has therefore abandoned any claim regarding these medical providers. See Robinson
v. Jones, 142 F.3d 905, 906 (6th Cir. 1998) (arguments not raised “are considered abandoned and
not reviewable on appeal”). With respect to Dr. Ukiwe, plaintiff argues that his medical records
contain an “official[] diagnos[is]” of depression, undermining the ALJ’s finding that depression
was not a severe impairment because “[the] underlying diagnosis and treatment is [sic] absent.”
Plaintiff overstates the record. Dr. Ukiwe’s purported “diagnosis” of depression was
formed without the support of any “medically acceptable clinical and laboratory diagnostic
techniques.”

20 C.F.R. § 404.1508.

Instead, he referred Glasco to his psychiatrist, Dr.
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Woodrow, for mental health treatment. Notably, Dr. Woodrow’s medical records are not in the
administrative file, nor did plaintiff seek to add them as part of his motion to remand. This
single reference to depression by a non-specialist without supporting medical evidence does not
make it reasonably probable that the ALJ, who acknowledged similar references to a history of
depression in the existing administrative record, would come to a different result on remand. See
Sizemore, 865 F.2d at 711–12 (medical assessment unsupported by “specific laboratory test or
diagnostic procedure” is not entitled to deference and therefore would not make different result
reasonably probable on remand); see also 20 C.F.R. § 404.1527(c) (discussing the factors for
determining weight given to medical opinions).
To summarize: despite plaintiff’s multifaceted argument to the contrary, the evidence he
seeks to submit on remand was not “unavailable” to him during the administrative proceedings.
Even without counsel, Glasco understood the importance of submitting medical records from the
2004–to–2008 time period, and the state agency fulfilled its duty to make reasonable efforts in
helping plaintiff compile medical records in support of his claim. And, to the extent certain
medical records were not included in the administrative file, despite all reasonable diligence by
Glasco and the state agency, it is not reasonably probable that those records would lead to a
different result on remand. For these reasons, plaintiff is not entitled to a “sentence six” remand.
III.
We affirm the judgment of the district court.

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