McCormick v. Social Security Administration, Commissioner

Filing 18

MEMORANDUM OPINION, as set re Motion to Remand 12 . Signed by Judge Sharon Lovelace Blackburn on 3/10/14. (CTS, )

FILED
2014 Mar-10 PM 02:55
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DERRICK MCCORMICK,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Commissioner, Social
Security Administration,
Defendant.

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CASE NO. 4:12-CV-4032-SLB

MEMORANDUM OPINION
This case is currently before the court on Plaintiff’s Motion to Remand Pursuant to
Sentence 6. (Doc. 12.) Upon review of the record, the submissions of the parties, and the
relevant law, the court is of the opinion that plaintiff’s Motion is due to be denied.
PROCEDURAL HISTORY
Mr. McCormick initially filed an application for a period of disability, DIB, and SSI
on July 27, 2009, alleging a disability onset date of December 8, 2008, (doc. 5-6 at 2; r. 129),

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Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
Acting Commissioner Carolyn W. Colvin should be substituted for Commissioner
Michael J. Astrue as the defendant in this suit: “Any action instituted in accordance with
this subsection shall survive notwithstanding any change in the person occupying the
office of Commissioner of Social Security or any vacancy in such office.”

due to “Bipolar; possible PTSD,” (doc. 5-7 at 6; r. 178).2 After the Social Security
Administration [“SSA”] denied his application, he requested a hearing before an
Administrative Law Judge [“ALJ”], which was held on March 4, 2011. (Doc. 5-3 at 27; r.
26.) After the hearing, the ALJ found that plaintiff did not have an impairment or a
combination or impairments listed in, or medically equivalent to one listed in, the Listings
of Impairments. (Doc. 5-3 at 30; r. 29); see 20 C.F.R. § 404.1520(d). The ALJ also found that
plaintiff retained the residual functional capacity to perform work-related activities at all
levels of exertion, with certain restrictions unrelated to exertion, (doc. 5-3 at 31; r. 30), and
that he was “capable of performing [his] past relevant work as a shipping and receiving
weigher,” (doc. 5-3 at 34; r. 33). In light of these findings, the ALJ found that Mr.
McCormick was not disabled from December 8, 2008 through the date of the decision,
March 21, 2011, and denied his request for a period of disability, SSI, and DIB. (Id.)
Plaintiff then requested the Appeals Council to review the ALJ’s decision. (Doc. 5-3
at 22; r. 21.) The Appeals Council found no reason under its rules to review the ALJ’s
decision, and denied his request for review. (Doc. 5-3 at 8; r. 7.) Therefore, the ALJ’s
decision is the final decision of the Commissioner. (Id.)

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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. When the document cited is duplicated
in the bound physical copy of the transcript of the entire record of the proceedings, the
page number of that transcript is also included, [“Doc. ___; r ___.”].
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Plaintiff filed a Motion to Remand Pursuant to Sentence 6, attaching certain treatment
notes and a medical opinion dated subsequent to the date through which the ALJ determined
that plaintiff was not disabled. (Doc. 12 and exhibits.) Later, plaintiff filed a Nov. 21, 2013
order from the Appeals Council as additional support for his Motion to Remand. (Doc. 15
and exhibits.)
STANDARD OF REVIEW
“Section 405(g) permits a district court to remand an application for benefits to the
Commissioner . . . by two methods, which are commonly denominated ‘sentence four
remands’ and ‘sentence six remands,’ each of which remedies a separate problem.” Ingram
v. Comm’r of Soc. Sec., 496 F.3d 1253, 1261 (11th Cir. 2007) (citing 42 U.S.C. § 405(g)).
“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.’” Ingram, 496
F.3d at 1261 (quoting 42 U.S.C. § 405(g)). “[A] sentence six remand is appropriate only
when the claimant submits evidence for the first time to the district court that might have
changed the outcome of the administrative proceeding.” Timmons v. Comm’r of Soc. Sec.,

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522 F. App’x 897, 902 (11th Cir. 2013) (citing Ingram, 496 F.3d at 1267-68). “New evidence
is material, and thus warrants a remand, if ‘there is a reasonable possibility that the new
evidence would change the administrative outcome.’” Id. at 902-903 (citing Hyde v. Bowen,
823 F.2d 456, 459 (11th Cir. 1987)).
DISCUSSION
Defendant is correct that only one treatment note from C.E.D. Mental Health Center
dates to before the date of the decision. (See doc. 13 at 7.) “If new and material evidence is
submitted, the Appeals Council shall consider the additional evidence only where it relates
to the period on or before the date of the administrative law judge hearing decision.” 20
C.F.R. § 404.970(b); see also § 416.1470(b). The treatment records after March 21, 2011 do
not relate to the relevant time period and thus are not appropriate for consideration on
remand. The treatment record dated February 24, 2011, does not contain any new material
information. (Doc. 12-2 at 1.) Therefore, it does not warrant remand under sentence 6.
The medical opinion from Dr. Schosheim, (doc. 12-1), does not merit consideration
on remand for three reasons:
(1) It is cumulative with the other medical records that diagnose plaintiff with bipolar
disorder. This unhelpful cumulativeness is readily apparent since Dr. Schosheim is not an
examining physician—he relied on plaintiff’s treatment notes that were already in the record
presented to the ALJ.

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(2) To the extent that the opinion purports to assert that plaintiff’s alleged impairments
meet a listing, it has invaded the province of the ALJ and is not afforded any special weight.
See Kelly v. Comm’r of Soc. Sec., 401 F. App’x 403, 407 (11th Cir. 2010) (citing 20 C.F.R.
§ 404.1527(d); § 416.927(d)) (“A doctor’s opinion on a dispositive issue reserved for the
Commissioner, such as whether the claimant is ‘disabled’ or ‘unable to work,’ is not
considered a medical opinion and is not given any special significance . . . but will be taken
into consideration.”). Especially considering the fact that Dr. Schosheim is not an examining
physician, it is not reasonably probable that evidence of this nature would cause the ALJ to
reach a different decision. See Timmons, 522 F. App’x at 902-903 (citing Hyde v. Bowen, 823
F.2d 456, 459 (11th Cir. 1987)).
(3) Plaintiff has not shown good cause for why he could not have obtained and
submitted Dr. Schosheim’s statement to the ALJ earlier. Plaintiff argues that “[g]ood cause
exists because the evidence did not exist and the ALJ failed to develop the Record and
former counsel failed to develop the Record.” (Doc. 12 at 4.) The court is not impressed with
such “cause.” True, Dr. Schosheim’s opinion did not exist at the time of the hearing (likely
because plaintiff’s counsel had not yet thought to retain Dr. Schosheim: the medical
interrogatory Dr. Schosheim filled out lists plaintiff’s alleged onset date as March 22,
2011—the day after the ALJ signed his opinion, (doc. 12-1 at 1)). But the evidence upon
which Dr. Schosheim relies existed, and the record at the time of the hearing was apparently
developed well enough for Dr. Schosheim to review it—not the claimant—and conclude that

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plaintiff met a listing. This is an attempt to “seek after-acquired evidence, and then use such
evidence as an unsanctioned backdoor means of appeal.” Milano v. Bowen, 809 F.2d 763,
767 (11th Cir. 1987) (internal quotation marks and citations omitted).
The order from the Appeals Council also does not warrant remand. The order directs
the ALJ in plaintiff’s second claim for disability to consider opinion evidence from a July 20,
2011 examination of plaintiff. (Doc. 15-1 at 2.) This examination was subsequent to the
ALJ’s opinion in plaintiff’s disability claim currently before this court. (See doc. 5-3 at 35;
r. 34.) The Appeals Counsel remanded because the ALJ in plaintiff’s second claim found that
plaintiff did not have a severe mental impairment, but did not adequately address the opinion
that plaintiff had a severe affective disorder. (Doc. 15-1 at 2.) In the claim currently before
this court, the ALJ found that plaintiff had a severe impairment of mood disorder and
adequately addressed all opinion evidence available. The order is thus irrelevant.
CONCLUSION
The court finds that Plaintiff’s Motion To Remand Pursuant To Sentence 6, (doc. 12),
is due to be denied. An Order denying the motion will be entered contemporaneously with
this Memorandum Opinion.
DONE this 10th day of March, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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