Boston v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 7/14/16. (SMH)

FILED
2016 Jul-14 PM 12:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SCOTT PATRICK BOSTON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. 2:14-CV-2016-SLB

MEMORANDUM OPINION
This case is presently pending before the court on plaintiff’s Motion to Remand and
Agreed Upon Motion to Stay Case. (Doc. 15.) For the reasons set forth below, the Motion
to Remand will be granted and this case will be remanded to the Commissioner pursuant to
sentence 6 of 42 U.S.C. § 405(g) for consideration of the opinion evidence first filed in this
court.
Mr. Boston filed an application for a period of disability and disability insurance
benefits [DIB] on October 30, 2012. (See doc. 7-3 at R.20.)1 The application was denied
initially on December 14, 2012. (Id.) Thereafter, Mr. Boston requested a hearing before an
Administrative Law Judge [ALJ], which was held on December 17, 2013. (Id.) Following

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Reference to a document number, (“Doc. __”), refers to the number assigned to each
document as it is filed in the court’s record. References to page numbers in the
Commissioner’s record are set forth as (“R.__”).

the hearing, the ALJ found that Mr. Boston was not disabled; therefore, he denied Mr.
Boston’s application for a period of disability and DIB on February 24, 2014. (Id. at R.30.)
Mr. Boston requested review of the ALJ’s decision by the Appeals Council. (See id.
at R.7.) On August 18, 2014, the Appeals Council denied the request for review, stating that
it had “found no reason under [its] rules to review the [ALJ’s] decision.” (Id. at R.1.)
Therefore, “the [ALJ’s] decision is the final decision of the Commissioner of Social Security
in [Mr. Boston’s] case.” (Id.)
Mr. Boston filed an appeal in this court on October 21, 2014. (Doc. 1.) Thereafter,
he filed the instant Motion to Remand and attached a document from his treating physician,
Patrick Pritchard, M.D., which states:
I treated Mr. Boston from 8/9/2010 to present time.
1) In my opinion as a medical doctor and based on my observation and
treatment of Scott Boston, I believe that the following limitations existed as of
October 2, 2012[,] through the last date of my treatment.
A. Mr. Boston would be expected to miss more than three days of work
each month as a result of his underlying medical condition(s).
Yes

T

No

...
B) Mr. Boston would experience symptoms, on a chronic basis, from
his underlying medical condition(s) which could reasonably be
expected to cause distraction from job tasks, or result in a failure to
complete job tasks in a timely manner, for more than two hours during
a typical eight[-]hour workday
Yes

T

No
2

...
C) Mr. Boston could not sustain work for eight (8) hours per day, five
(5) days per week at any kind of job, even one that is seated most of the
day, for the following reasons:
Severe L2 fracture in 2010 has resulted in changes [to his] spine that
limit[ ] his functionality for continued employment.
(Doc. 15-1.) Dr. Pritchard signed this document on October 1, 2015. Mr. Boston argues:
Dr. Pritchard's opinions meet the requirements of new and material
evidence sufficient for a remand, as set forth in Cannon v. Bowen, 858 F.2d
1541, 1546 (11th Cir. 1988) because:
A. The opinions are new and non-cumulative as the record does not
contain a medical opinion as to the ability or inability to sustain work
on a regular and continuing basis.
B. Dr. Pritchard's opinions are material evidence because, if not
discredited by the Commissioner, they could change the administrative
decision.
Dr. Pritchard's opinions are that Mr. Boston could not work eight hours
per day, five days per week, nor sustain work for at least six hours of
an eight hour work day, as of October 2, 2012, which is well before the
administrative decisions in this case. In addition, Dr. Pritchard opines
that as of October 2, 2012, Mr. Boston would miss more than three days
of work per month (i.e., 36 days per year, or more than 7 weeks).
If an individual cannot work eight hours per day, five days per week,
he would generally be found unable to sustain work-related physical
and mental activities in a work setting on a regular and continuing
basis. SSR 96-8p. Therefore, the individual generally would be found
disabled under Social Security rules. Furthermore, as a treating
physician, Dr. Pritchard's opinions are entitled to controlling weight.
SSR 96-2p.
C. There is good cause for failure to submit this evidence at the
administrative level because this evidence did not exist previously.
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[Mr. Boston] submit[s] that for these reasons the threshold requirements of
Cannon have been satisfied and this case should be remanded so that the
Commissioner can consider the new and material evidence presented by Dr.
Pritchard's opinions.
(Doc. 15 ¶ 3.)
The Commissioner argues that the evidence does not support a sentence six remand
because it is not “material” and because Mr. Boston “has not shown good cause for not
submitting [the evidence] previously.” (Doc. 18 at 2-3.) The court disagrees.
Sentence six of § 405(g) states:
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; and the
Commissioner of Social Security shall, after the case is remanded, and after
hearing such additional evidence if so ordered, modify or affirm the
Commissioner's findings of fact or the Commissioner's decision, or both, and
shall file with the court any such additional and modified findings of fact and
decision, and, in any case in which the Commissioner has not made a decision
fully favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner's action in modifying or affirming
was based.
42 U.S.C. § 405(g). Therefore, a claimant seeking a remand under sentence six must
establish “(1) there is new, noncumulative evidence; (2) the evidence is ‘material,’ that is,
relevant and probative so that there is a reasonable possibility that it would change the
administrative result; and (3) there is good cause for the failure to submit the evidence at the
administrative level.” Milano v. Bowen, 809 F.2d 763, 766 (11th Cir. 1987)(quoting Caulder
v. Bowen, 791 F.2d 872, 877 (11th Cir.1986)); see Ingram v. Comm'r of Soc. Sec. Admin.,

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496 F.3d 1253, 1261 (11th Cir. 2007)(“The sixth sentence of section 405(g) provides a
federal court the power to remand the application for benefits to the Commissioner for the
taking of additional evidence 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.’” (quoting 42 U.S.C. § 405(g))). “Accordingly, sentence six encompasses
only those instances in which ‘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.’” Gordon v. Soc. Sec. Admin., Com'r, 625 Fed.
Appx. 512, 514 (11th Cir. 2015)(quoting Ingram, 496 F.3d at 1267 (quoting Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990)))(emphasis added).2
A. MATERIALITY
The Commissioner argues, “Plaintiff’s new evidence would not change the result
because the note is not entitled to controlling, or even significant, weight.” (Doc. 18 at 3.)
While this might be true, this court does not determine the weight of new evidence submitted
for the first time in the district court and not included in the record of the administrative
proceedings.

2

Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
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“To be material, the evidence must be relevant and probative so that there is a
reasonable possibility that it would change the administrative outcome.” Caulder, 791 F.2d
at 877 (citing Wright v. Heckler, 734 F.2d 696 (11th Cir.1984); Chaney v. Schweiker, 659
F.2d 676, 679 (5th Cir. Oct. 21, 1981)). This court has no jurisdiction to evaluate this new
evidence in the first instance. Walters v. Barnhart, 184 F. Supp. 2d 1178, 1185 (M.D. Ala.
2001)(citing Caulder v. Bowen, 791 F.2d at 875; Cherry v. Heckler, 760 F.2d 1186 (11th
Cir.1985)). “Additionally, the court is not permitted to ‘discount’ the evidence at this stage
of the proceedings – although the ALJ may certainly do so on remand.” Mitchell v. Apfel,
No. CIV.A.98-W-1160-N, 1999 WL 33100499, at *3 (M.D. Ala. Sept. 17, 1999)(citing
Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir. 1988); Wright v. Heckler, 734 F.2d 696,
697 (11th Cir.1984)).
“[W]hen determining whether to remand a case to the [Commissioner] for
consideration of new evidence, the mere statement by the [Commissioner] that the new
evidence would not ultimately change the decision cannot be accorded any weight since the
statement concerning the materiality of the evidence not in the certified administrative record
is advisory at best.” Caulder, 791 F.2d at 877 (11th Cir. 1986)(citing Cherry, 760 F.2d at
1194). Therefore, the court must accept as valid the new evidence in deciding whether it is
material. Washington v. Soc. Sec. Admin., Com'r, 806 F.3d 1317, 1321-22 (11th Cir. 2015);
Mitchell, 1999 WL 33100499, at *3.

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Notwithstanding the Commissioner’s arguments regarding the materiality of Dr.
Pritchard’s opinions in light of other evidence in the record that could form the basis of
rejecting the treating physician’s opinions, the court finds – for purposes of deciding whether
the evidence is “material” – that Dr. Pritchard’s opinion testimony is “relevant and probative”
because “it pertains to a condition that [Mr. Boston] listed in his application[ ] at the
administrative level as a source of his disability,” and “[t]he evidence also contains a medical
opinion on the presence of the impairment during the time period for which benefits are
sought.” See Caulder, 791 F.2d at 877-78.
B. GOOD CAUSE
“The sixth sentence of § 405(g) plainly describes [a] kind of 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.” Finkelstein, 496 U.S. at 626. “Good cause for failing to present evidence
earlier may exist where, as here, the evidence did not exist at the time of the administrative
proceeding,” Cherry, 760 F.2d at 1192, and nothing before the court “reflects any bad faith
attempt by [the claimant] to manipulate the administrative process,”

Lipscomb v.

Commissioner of Soc. Security, 199 Fed. Appx. 903, 907 (11th Cir. 2006).
The Commissioner argues that the good-cause requirement is not satisfied if the
claimant could have taken steps to cause such evidence to be created, even though the
evidence did not exist during the administrative proceedings. See doc. 18 at 7 (“Plaintiff

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provides no rationale or medical condition changes why Dr. Pritchard’s note could not be
prepared prior to the ALJ decision. The mere fact that Plaintiff had this evidence created
after the Appeal’s Council’s decision does not absolve him from providing good cause for
his failure to seek it previously.”). In support of her contention, the Commissioner cites to
Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998) and Vlamakis v. Comm’r of Soc. Sec.,
172 Fed. Appx. 274, 277 (11th Cir. 2006).
The Falge decision is distinguishable from the facts of this case. In that case, the
doctor’s report purported to predate the ALJ’s decision opinion. Falge, 150 F.3d at 1323-24
and n.8.3 The claimant failed to allege or prove that the report at issue did not exist at some

3

The Falge court stated:

But, Falge has provided no reason – no good cause – why Dr. Inga’s report
was not made available during proceedings before the ALJ. [Footnote]
[Footnote:] Dr. Inga’s new report is dated 11 May 1994 (before the
hearing), but the report does not seem to have actually been prepared
until December 1994 (after the ALJ decision). The opinions set out in
the report, however, seem to have been based on medical examinations
and tests conducted before the ALJ rendered his decision.
We accept that, if an applicant can show good cause for his failure to
introduce evidence during a hearing before the ALJ (even if the evidence was
available to the applicant before the ALJ's decision) courts may consider that
evidence in deciding whether the case should be remanded for further
administrative proceedings to include the new evidence. But again, that kind
of case is not before us. Falge has neither shown nor alleged good cause for
his failure to introduce Dr. Inga’s May 1994 report during the hearing before
the ALJ.
Falge, 150 F.3d at 1323-24 & n.8 (emphasis added). Although the court noted that the report
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time before the ALJ’s decision. Id. at 1324. Indeed, the Falge court appears to “accept” that
good cause exists for not presenting evidence that did not exist during the administrative
proceedings without any other showing. See id. at 1323-24 (“We accept that, if an applicant
can show good cause for his failure to introduce evidence during a hearing before the ALJ
(even if the evidence was available to the applicant before the ALJ's decision) courts may
consider that evidence in deciding whether the case should be remanded for further
administrative proceedings to include the new evidence.”).
In the unpublished Vlamakis opinion, a panel of the Eleventh Circuit held:
The evidence in this case, which consists of a short statement that Dr. Gaulkin
treated Vlamakis for anxiety, is neither new, nor material. Dr. Gaulkin's notes
already contained statements regarding his treatment of Vlamakis for anxiety.
Those same notes provide a better description of Vlamakis' condition than the
letter does. The letter adds nothing new to the record and there is no
reasonable possibility it would change the ALJ's decision. Furthermore,
although the letter did not exist at the time of the administrative proceedings,
Vlamakis has not shown good cause for not obtaining a letter from Dr. Gaulkin
at an earlier date. The evidence upon which Dr. Gaulkin's letter was based had
been available since 1997, several years before the administrative proceedings
began. Accordingly, the district court did not err in declining to remand the
case to the Commissioner on the basis of Dr. Gaulkin's letter.
Vlamakis, 172 Fed. Appx. at 277. This unpublished opinion is not binding on this court. See
11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may
be cited as persuasive authority.”). Regardless, the Vlamakis “holding,” allowing a district
court to consider a claimant’s cause for not having evidence created during the administrative

“seemed” to be created after the administrative proceeding, it treated the report as created
during the administrative proceedings.
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proceedings, is contrary to numerous and long-standing precedents of the Eleventh Circuit,
which this court is required to follow.4
As set forth above, “Good cause for failing to present evidence earlier may exist
where, as here, the evidence did not exist at the time of the administrative proceeding.”
Cherry, 760 F.2d at 1192 (emphasis added); see also Cannon, 858 F.2d at 1546 (11th Cir.
1988)(“there is good cause for failing to present the evidence because it did not exist at the
time of the administrative hearing or the district court proceedings”)(emphasis added); Hyde
v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987)(“because this new evidence did not exist at the
time of the administrative proceedings Hyde has established good cause for failure to submit
the evidence at the administrative level”)(emphasis added); Smith v. Bowen, 792 F.2d 1547,

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According to the Eleventh Circuit –

Under our prior precedent rule, we are bound to follow a binding precedent in
this Circuit “unless and until it is overruled by this court en banc or by the
Supreme Court.” United States v. Martinez, 606 F.3d 1303, 1305 (11th Cir.
2010)(quoting United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.
2008)). We inherited this rule from the old Fifth Circuit, which had similarly
deferred to prior precedent. See, e.g., Davis v. Estelle, 529 F.2d 437, 441 (5th
Cir. 1976). Therefore, when faced with an intracircuit split, we look to the
earliest case not abrogated by the Supreme Court or by this Court sitting en
banc. See Morrison v. Amway Corp., 323 F.3d 920, 929 (11th Cir. 2003)
(“[W]hen circuit authority is in conflict, a panel should look to the line of
authority containing the earliest case, because a decision of a prior panel
cannot be overturned by a later panel.)(quoting Walker v. Mortham, 158 F.3d
1177, 1188 (11th Cir. 1998))).
Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256-57 (11th Cir. 2014). This
court must follow binding Circuit precedent. See In re Hubbard, 803 F.3d 1298, 1309 (11th
Cir. 2015)(citing Generali v. D’Amico, 766 F.2d 485, 489 (11th Cir. 1985)).
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1550 (11th Cir. 1986)(“Smith has established good cause for failure to submit the evidence
at the administrative level because it did not exist at that time.”)(emphasis added); Caulder,
791 F.2d at 878 (“Caulder did establish good cause for the failure to submit the evidence at
the administrative level because the evidence did not exist at that time”) (emphasis added);
see also Lipscomb, 199 Fed. Appx. at 907 (“The good cause requirement is also satisfied.
The [evidence] did not exist at the time of the administrative proceedings.”)(emphasis
added); Archer v. Commissioner of Social Security, 176 Fed. Appx. 80, 82 n.3 (11th Cir.
2006)( noting that “The good cause requirement is satisfied when the evidence did not exist
at the time of the administrative proceedings,” and that “the [district] court [had] stated that
the mere non-existence of the evidence did not amount to good cause,” but that “finding
[was] contrary to this circuit’s standard” (citing Cannon, 858 F.2d at 1546))(other citations
omitted and emphasis added).
The court notes that Dr. Pritchard is a neurosurgeon and has treated Mr. Boston over
a number of years. He opined that Mr. Boston will miss up to the three days per month due
to his back pain. Before the ALJ’s decision, which found Mr. Boston was capable of
sustained work activity, there was no apparent need for a treating physician to offer an
opinion as to Mr. Boston’s limitations with regard to attendance. Under different facts, it
may be appropriate to consider a claimant’s “bad faith” in waiting to seek and submit new
and material physician opinion evidence to the district court until completion of the
administration proceedings. In this case, the court finds no evidence or suggestion that Mr.

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Boston and Dr. Prichard engaged in bad faith or otherwise have attempted to manipulate the
system.
The court finds that Mr. Boston had “good cause” for not presenting Dr. Pritchard’s
opinion during the administrative proceedings based on the fact that Dr. Pritchard’s opinion
did not exist until after completion of the administrative proceedings.
C. FURTHER PROCEEDINGS
Based on the foregoing the court finds that Mr. Boston has shown that remand to the
Commissioner to allow her to consider Dr. Pritchard’s opinions is appropriate under sentence
six of § 405(g). On remand –
the Commissioner of Social Security shall, after the case is remanded, and
after hearing such additional evidence . . . , modify or affirm the
Commissioner’s findings of fact or the Commissioner's decision, or both, and
shall file with the court any such additional and modified findings of fact and
decision, and, in any case in which the Commissioner has not made a decision
fully favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner's action in modifying or affirming
was based.
42 U.S.C. 405(g).
Therefore, this matter will be stayed pending the Commissioner’s filing of additional
and/or modified findings of fact and decision. “The time for filing an EAJA application, in
a sentence-six remand, runs from that post-remand judgment entry date in the district court.”
Jackson v. Chater, 99 F.3d 1086, 1089-90 (11th Cir. 1996).

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CONCLUSION
An Order granting Mr. Boston’s Motion to Remand and Agreed Upon Motion to Stay
Case, (doc. 15), will be entered contemporaneously with this Memorandum Opinion.
DONE this 14th day of July, 2016.

SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE

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