Jones v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION AND ORDER that claimant's motion to remand and amended motion to remand both are DENIED; In accordance with the order entered on March 26, 2012, claimant's opening brief is due within 30 days of the date of this order, Defendant's brief is due 30 days after claimant's opening brief, Claimant's reply brief is due 14 days after defendant's brief; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/30/2012. (AHI )

FILED
2012 Aug-30 PM 02:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SHERRY JONES,
Claimant,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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Case No. CV-11-S-3772-NE

MEMORANDUM OPINION AND ORDER
Claimant, Sherry Jones, commenced this action on October 28, 2011, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying her claim for a period of disability, disability insurance, and
supplemental security income benefits. The case currently is before the court on
claimant’s motion to remand1 and amended motion to remand.2 In both motions,
claimant seeks remand of this case to the Commissioner for consideration of
additional evidence that was not produced at any stage of the administrative
proceedings. The additional evidence proffered by claimant includes the following:
(1) treatment records from the UAB/Kirklin Clinic Division of Cardiovascular
1

Doc. no. 9.

2

Doc. no. 12.

Disease, dated June 9, 2009 through September 29, 2009, and March 29, 2011
through October 6, 2011; lumbar and thoracic spine MRI results dated March 29,
2011;3 and records from Alabama Psychiatric Services dated September 3, 2008
through February 12, 2009.4
Claimant’s motions to remand should be considered under “Sentence Six” of
42 U.S.C. § 405(g), which states that:
The court may, on motion of the Commissioner of Social Security made
for good cause shown before the Commissioner files the
Commissioner’s answer, remand the case to the Commissioner of Social
Security for further action by the Commissioner of Social Security, and
it 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).
“Sentence six remands are ‘available when evidence not presented to the
Commissioner at any stage of the administrative process requires further review.’”

3

Doc. no. 9, at Exhibit B.

4

Doc. no. 12, at Exhibit A.
2

Poellnitz v. Astrue, 349 F. App’x 500, 504 (11th Cir. 2009) (quoting Ingram v.
Commissioner of Social Security Administration, 496 F.3d 1253, 1267 (11th Cir.
2007)).
To be entitled to remand to the Commissioner, the claimant must show
that (1) new, non-cumulative evidence exists; (2) the evidence is
material such that a reasonable possibility exists that the new evidence
would change the administrative result; and (3) good cause exists for the
claimant’s failure to submit the evidence at the appropriate
administrative level. Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.
1986). However, “not every discovery of new evidence, even if relevant
and probative, will justify a remand to the [Commissioner], for some
evidence is of limited value and insufficient to justify the administrative
costs and delay of a new hearing.” Id. at 876 (internal quotation marks
omitted). 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.” Ingram, 496
F.3d at 1267 (quoting Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.
Ct. 2658, 2664, 110 L. Ed.2d 563 (1990)).
Carson v. Commissioner of Social Security, 373 F. App’x 986, 988 (11th Cir. 2010)
(bracketed alteration supplied).5
The court will begin by addressing the good cause element. The Commissioner
does not dispute that there is good cause for claimant’s failure to submit the
UAB/Kirklin Clinic records dated September 27, 2011 and October 6, 2011, because
those records “did not exist when Plaintiff requested review of the ALJ’s hearing
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In contrast, remand is appropriate pursuant to Sentence Four of § 405(g) for consideration
of evidence presented to, and considered by, the Appeals Council during the administrative
proceedings. Smith v. Astrue, 272 F. App’x 789, 802 (11th Cir. 2008). A claimant does not have
to satisfy the good cause requirement in order to obtain a remand pursuant to Sentence Four. Id.
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decision, and therefore could not have been submitted to the Appeals Council.”6 See
Cherry v. Heckler, 760 F.2d 1186, 1192 (11th Cir. 1985) (“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.”) (citation omitted).
The court does not understand claimant’s argument that good cause existed for
her failure to submit the MRI results and the remainder of the UAB/Kirklin Clinic
records. Claimant states:
The evidence submitted in support of Ms. Jones’ motion concerns
two issues central to her disability claim. First, the evidence shows
further treatment for her pulmonary arterial hypertension. In addition,
Ms. Jones’ previous attorney referred to a letter by Dr. Tallaj dated
August 19, 2009 to support his question to the vocational expert. (Tr.
60-61). However, the letter referred to by Ms. Jones[’] attorney was not
in the administrative record. In addition, as alluded to previously, the
ALJ found Ms. Jones’ back pain a non-severe condition (Tr. 18). The
ALJ’s decision put at issue the lack of objective evidence supporting
Ms. Jones’ claim. Therefore[,] Ms. Jones’ evidence has proven good
cause to remand her claim to the administrative level of review.7
Claimant appears to simply be reiterating her argument that the proposed new
evidence is material to her claim. Materiality is not the same thing as good cause.
As claimant has failed to establish good cause for her failure to submit her March 29,
2011 MRI results and all of her UAB/Kirklin Clinic records dating before September
27, 2011, remand for further consideration of those items of evidence will not be
6

Doc. no. 11 (Commissioner’s brief in opposition to motion to remand), at 6 n.1.

7

Doc. no. 9, at 7 (bracketed alterations supplied).
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allowed.
Claimant asserts that good cause exists for her failure to earlier submit the
records from Alabama Psychiatric Services because the ALJ should have requested
those records during the course of the administrative proceedings. It is true that the
ALJ “has an obligation to develop a full and fair record, even if the claimant is
represented by counsel.” Nation v. Barnhart, 153 F. App’x 597, 598 (11th Cir. 2005)
(citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). Even so, a
claimant bears the ultimate burden of producing evidence to support her disability
claim. See Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003) (citing 20
C.F.R. §§ 416.912(a), (c)). There is no indication here that the burden of producing
evidence to support claimant’s alleged mental impairments should have been shifted
to the Commissioner. There also is no indication that claimant did not have sufficient
opportunity to present those records to the ALJ or the Appeals Council. As claimant
has failed to establish good cause for her failure to submit the records from Alabama
Psychiatric Services during the administrative proceedings, remand for further
consideration of those items of evidence will not be allowed.
The only remaining items of proposed new evidence are the September 27,
2011 and October 6, 2011 records from UAB/Kirklin Clinic Division of
Cardiovascular Disease. On September 27, 20111, Dr. Melissa Smallfield noted that

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claimant suffered from exercise-induced pulmonary hypertension, the symptoms of
which had recently been exacerbated by an upper respiratory infection. Claimant’s
breathing had improved after her recovery from the infection. She did not have chest
pain, but she did have some dyspnea on exertion at about one block. Claimant
informed Dr. Smallfield that her other physicians had recommended surgery to relieve
her back pain, and Dr. Smallfield advised claimant that she should undergo some
testing prior to surgery to ensure that her pulmonary artery pressures would be at a
safe level.

Clinical examination revealed bilateral wheezing and squeaks in

claimant’s lungs. Dr. Smallfield recommended that claimant continue a highpotassium diet, but she did not make any changes to claimant’s medication regimen.
Claimant was advised to return to the clinic in six months, or sooner if needed.8
On October 6, 2011, Dr. Smallfield wrote the following “To Whom It May
Concern” letter:
Ms. Jones has been our patient since April of 2004. Ms. Jones
suffers from a devastating disease called pulmonary arterial
hypertension, likely familial. She is currently stable on medical therapy;
however, this is a progressive and often lethal disease. She is quite
limited and not physically able to do community service given her
cardipulmonary condition.9
Neither of these items of evidence can be considered “material,” as no

8

Doc. no. 9-2, at 3-5.

9

Id. at 2.
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reasonable possibility exists that the new evidence would change the administrative
result. The ALJ identified pulmonary hypertension as one of claimant’s severe
impairments, and he discussed claimant’s pulmonary symptoms at length in his
administrative decision. The September 27, 2011 treatment notes from UAB/Kirklin
Clinic do not reveal that claimant’s symptoms had worsened since they were
considered by the ALJ, and, importantly, the notes do not support a greater level of
functional limitation than that assessed by the ALJ.
Dr. Smallfield’s October 6 letter also does not indicate a disabling level of
impairment. Claimant’s diagnosis of pulmonary arterial hypertension cannot itself
support a finding of disability. Instead, the relevant consideration is the effect of that
impairment on claimant’s ability to perform substantial gainful work activities. See
20 C.F.R. § 404.1505 (defining a disability as “the inability to do any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months”). See also Bowen
v. Yuckert, 482 U.S. 137, 146 (1987) (“The [Social Security] Act ‘defines “disability”
in terms of the effect a physical or mental impairment has on a person’s ability to
function in the workplace.’”) (quoting Heckler v. Campbell, 461 U.S. 458, 459-60
(1983)). Furthermore, Dr. Smallfield’s conclusory statement that claimant is “quite

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limited” carries little weight. The ALJ is not required to accept a conclusory
statement from a medical source, even a treating source, that a claimant is unable to
work, because the decision whether a claimant is disabled is not a medical opinion,
but is a decision “reserved to the Commissioner.” 20 C.F.R. § 416.927(e). Finally,
Dr. Smallfield’s statements about claimant’s inability to do community service are
simply irrelevant. There is no way of discerning what community service Dr.
Smallfield was referencing, and it is highly unlikely that the standards for
participation in any type of community service are the same as those employed by the
Commissioner in determining disability status.
In summary, claimant has failed to establish all the requirements for remand for
consideration of new evidence pursuant to Sentence Six of 42 U.S.C. § 405(g).
Accordingly, her motion to remand and amended motion to remand both are
DENIED. In accordance with the order entered on March 26, 2012, claimant’s
opening brief is due within thirty (30) days of the date of this order. Defendant’s
brief is due thirty (30) days after claimant’s opening brief. Claimant’s reply brief is
due fourteen (14) days after defendant’s brief.
DONE this 30th day of August, 2012.

______________________________
United States District Judge

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