Boyd v. Social Security Administration

Filing 14

RECOMMENDED DISPOSITION recommending that the District Court deny Plaintiff's Motion to Supplement the Record, grant Plaintiff's Motion for Remand, reverse the decision of the Commissioner and remand to the Commissioner pursuant to sentence four 42 U.S.C. § 405(g). Objections to R&R due by 3/26/2009. Signed by Magistrate Judge Beth Deere on 3/12/09. (hph)

I N THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION C H A R L E S BOYD v. M I C H A E L J. ASTRUE, C o m m iss io n e r , Social Security Administration NO. 4:08CV02705 JLH/BD P L A IN T IF F

DEFENDANT

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections T h is recommended disposition has been submitted to Chief United States District J u d g e J. Leon Holmes. The parties may file specific objections to these findings and re c o m m e n d a tio n s and must provide the factual or legal basis for each objection. The o b je c tio n s must be filed with the Clerk no later than eleven (11) days from receipt of th e se findings and recommendations. A copy of objections must be served on the o p p o s in g party. The District Judge, even in the absence of objections, may reject these p ro p o se d findings and recommendations in whole or in part. II. B a c k gro u n d P la in tif f Charles Boyd has appealed the final decision of the Commissioner of the S o c ial Security Administration (the "Commissioner") denying his claim for Disability In s u ra n c e Benefits ("DIB") under Title II of the Social Security Act (the "Act") and S u p p le m e n ta l Security income ("SSI") under Title XVI of the Act. 1

P la in tif f filed an application for DIB and SSI on May 25, 2006. (Tr. 37-39; 2868 8 ) The SSA denied his applications initially and upon reconsideration. (Tr. 31-33, 353 6 ) Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). A h e a rin g was held on December 12, 2007. (Tr. 298) Plaintiff attended with his attorney. (Tr. 298) At the hearing, Plaintiff's counsel was asked by the ALJ whether he had re v ie w e d the claim file and whether he had any legal objections to any of the proposed e x h ib its . (Tr. 302) Plaintiff's counsel replied he did not have any objections and did not h a v e any other medical records to add to the file. (Tr. 302) On February 28, 2008, the A L J issued a decision finding Plaintiff capable of a full range of light work and denying b en ef its. (Tr. 19) Plaintiff requested review of the ALJ's unfavorable decision on March 3, 2008. (Tr. 8) On July 15, 2008, Plaintiff's counsel sent, by certified mail, return receipt re q u e ste d , additional evidence to the Appeals Council for its consideration in determining w h e th e r to review the Plaintiff's case. (#12-3 at pp. 1-4) The evidence consisted of tw e lv e pages of medical records from Dr. William Rutledge, Plaintiff's treating p h ysician , dated from January 30, 2007 to March 31, 2008 (the "New Evidence"). (Tr. 1 2 -3 at pp. 3-14) On August 22, 2008, the Appeals Council denied Plaintiff's request for re v iew and the ALJ's decision became the final decision of the Commissioner. In its lette r notifying the Plaintiff of its action, the Appeals Council acknowledged that in re a ch in g its decision it "considered the reasons you disagree with the decision and the a d d itio n a l evidence listed on the enclosed Order of Appeals Council." (Tr. 4) The Order 2

o f Appeals Council indicates that the Appeals Council considered only Plaintiff's a tto rn e y's contentions submitted with Plaintiff's request for review and dated March 27, 2 0 0 8 . (Tr. 7) Plaintiff's attorney's contentions discussed some of the New Evidence. (Tr. 293) P la in tif f has now filed a Motion to Supplement the Record and Motion to Remand (# 1 2 ). In the Motion, Plaintiff claims that the New Evidence he sent to the Appeals C o u n c il adds additional support for his claim. Plaintiff asks the Court to add the New E v id e n c e to the record or alternatively to remand the case with instruction to the C o m m is s io n e r to add the New Evidence to the record. (#12 at pp. 3-4) The C o m m is s io n e r objects claiming the Plaintiff has not met the requirements for remand u n d er 42 U.S.C. § 405(g). III. D is c u s s io n A. R e v iew Before the Appeals Council

F e d e ra l regulations permit an applicant who is dissatisfied with the ALJ's ruling to se e k administrative review by the Appeals Council. Under the regulations, the Appeals C o u n c il must review a case if there is an abuse of discretion by the ALJ, there is an error o f law, the decision of the ALJ is not supported by substantial evidence, or there is a b ro a d policy or procedural issue that may affect the general public interest. See 20 C.F.R. § § 404.970(a), 416.1470(a). When a claimant submits evidence to the Appeals Council that was not submitted to the ALJ, in an attempt to gain review, the Appeals Council must determine whether 3

th a t evidence is "new and material" and "relates to the period on or before the date of the A L J 's decision." 20 C.F.R. §§ 404.970(b), 416.1470(b). The Eighth Circuit has held that u n d e r the regulations, the evidence is new if it is more than merely cumulative of other e v id e n c e in the record. See Bergmann v. Apfel, 207 F.3d 1065, 1069-1070 (8th Cir. 2 0 0 0 ) (psychiatrist's report was new because it was not cumulative of other evidence on th e record and contained more specific findings and conclusions regarding her mental c o n d itio n ) (citing Williams v. Sullivan, 905 F.2d 214, 216). The Eighth Circuit has also h e ld that, to be "material" under the regulation, the evidence must be relevant to c la im a n t's condition for the time period for which benefits were denied and must not m e re ly detail after-acquired conditions or post-decision deterioration of a pre-existing c o n d itio n . See Id. If the new evidence meets these criteria, the Appeals Council must re v ie w the entire record, including the new evidence, to determine whether the ALJ's d e c isio n is contrary to the weight of the evidence requiring review from the Appeals C o u n cil. 20 C.F.R. §§ 404.970(b), 416.1470(b). B. J u d ic ia l Review

In most cases, a reviewing court reviews the final decision of the Commissioner to d e te rm in e whether there were errors of law and whether the decision is supported by s u b s ta n tia l evidence on the record as a whole. See e.g., Collins ex rel. Williams v. B a r n h a r t, 335 F.3d 726, 729 (8th Cir. 2003) (citing Qualls v. Apfel, 158 F.3d 425, 427 (8 th Cir. 1998)). If the Appeals Council grants review, its decision (absent remand to the A L J ) becomes the Commissioner's final decision that is subject to judicial review. 4

B r o w n in g v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992). If the Appeals Council denies re v ie w , the decision of the ALJ is the final decision of the Commissioner and the re v ie w in g court does not evaluate the Appeals Council's decision to deny review but ra th e r "determines whether the record as a whole, including the new evidence, supports th e ALJ's determination." Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000) (em p h asis added).1 W h e n a claimant submits additional evidence to the Appeals Council, prior to the d ate the Council issues its final decision, in an attempt to obtain review of an ALJ's d e c is io n , and the Appeals Council denies review with an express finding that the a d d itio n a l evidence is not new or material, a reviewing court has jurisdiction to determine w h e th e r the Appeals Council erred in determining that the evidence was not "new" or "m aterial" within the meaning of 20 C.F.R. §§ 404.970(b), 416.1470(b).2 Williams v. S u lliv a n , 905 F.2d 214, 215-16 (8th Cir. 1990) (court reviewed whether Appeals

At this time, the Court cannot consider the New Evidence when analyzing w h e th e r there was substantial evidence in the record as a whole to support the decision of th e ALJ because the additional Evidence cannot be considered part of the record. The C o u rt has no authority to add the New Evidence to the record as requested by the P l a in tif f . T h e Court of Appeals has ruled that its authority for this review is based on its " [ j]u ris d ic tio n to review whether the Appeals Council has complied with the procedural re q u ire m e n ts of the regulations," and not its authority to review the "non-final, s u b s ta n tiv e decision [of the Appeals Council] to deny review." Browning, 958 F.2d at 8 2 2 -2 3 . 5
2

1

C o u n c il's determination that additional medical evidence presented to it was neither new n o r material and remanded for consideration of the additional evidence). I n this case, the Appeals Council denied review and did not make an express f in d in g that the additional evidence Plaintiff submitted was not new or material under 20 C .F .R . §§ 404.970(b), 416.1470(b). After reviewing the transcript, Plaintiff's motion, a n d the Commissioner's response, it appears the Appeals Council received the New E v id e n c e in a timely fashion. (#12-3 at pp. 1-2) It is unclear, however, whether the A p p e a ls Council ever considered it. The Appeals Council acknowledged considering a d d itio n a l evidence but did not list the New Evidence among the evidence it reviewed. (Tr. 4, 7) In Gartman v. Apfel, 220 F.3d 918 (8th Cir. 2000), the Eighth Circuit considered w h e th e r it should remand a case for consideration of new evidence. After the ALJ held th a t Gartman was not disabled because she was capable of returning to work, Ms. G a rtm a n appealed to the Appeals Council and submitted a revised opinion from her tre a tin g physician finding that she required work in an environment where she could e le v a te her leg. Id. at 920. The Appeals Council denied review. Id. The Court noted th a t in cases where new and material evidence is submitted first to the Appeals Council an d the Appeals Council declines review, the new evidence becomes part of the record an d is considered during the "substantial evidence" analysis of the Commissioner's d e c is io n . Id. at 922. The Court found that it was unclear whether the Appeals Council h a d ever reviewed the revised opinion of the claimant's treating physician, and if 6

c r e d ite d , the opinion might persuade the ALJ that the claimant could not return to her past re le v a n t work. Id. Accordingly, the Court remanded the case for consideration of the n e w evidence. Id. A s in Gartman, here remand is appropriate. Buckner v. Apfel, 213 F.3d 1006, 1 0 1 1 (8th Cir. 2000). The New Evidence consists mostly of reports made by Plaintiff's tre a tin g physician for treatment of Plaintiff during the relevant time period.3 Notably, the N e w Evidence includes a narrative report dated August 13, 2007 (#12-3 at pp. 10-12) in w h ic h Plaintiff's treating physician discusses the history of his treatment of Plaintiff, the re su lts of an MRI, and opines that Plaintiff's pain interferes with his ability to focus and c o n c en tra te , that Plaintiff would require frequent breaks of 15-30 minutes from a job that req u ires sitting, and that Plaintiff's physical condition is "permanent in nature." If c re d ite d , this opinion evidence from Plaintiff's treating physician might persuade the ALJ th a t the Plaintiff cannot perform a full range of light work.

The New Evidence consists of Dr. Rutledge's reports from examinations of P lain tiff on January 15, 2008 (#12-3 at p. 4) and March 31, 2008 (#12-3 at p. 3); a J a n u a ry 30, 2007 letter from Reza Shahim, M.D. to Dr. Rutledge (#12-3 at p. 5), which a p p e ars to be a duplicate of Tr. 164; a May 3, 2007 letter from ECMC to Plaintiff re g a rd in g conditional discharge of a student loan due to disability (#12-3 at p. 6); a loan d is c h a rg e application signed by Dr. Rutledge on May 14, 2007 (#12-3 at p. 7-8) and a s im ila r application revised to add Plaintiff's address (#12-3 at p. 9), which appear to be d u p lic a te s of Tr. 285; Dr. Rutledge's Narrative Report dated August 13, 2007 (#12-3 at p p . 10-12); and two copies of an undated "affidavit" of Dr. Rutledge. (#12-3 at pp. 1 3 -14 ).

3

7

C.

S e n te n c e Four vs. Sentence Six Remand

U n d e r 42 U.S.C. § 405(g), a reviewing court's authority to remand must come f ro m either sentence four or sentence six. Melkonyan v. Sullivan, 501 U.S. 89, 99-102, 1 1 1 S.Ct. 2157 (1991). Sentence four provides that "[t]he court shall have the power to e n te r, upon the pleadings and transcript of record, a judgment affirming, modifying, or re v e rs in g the decision of the Commissioner of Social Security, with or without remanding th e cause for a rehearing." 42 U.S.C. § 405(g) (sentence four). By contrast, sentence six provides: T h e court may, on motion of the Commissioner of Social Security made for g o o d cause shown before the Commissioner files the Commissioner's a n sw e r, remand the case to the Commissioner of Social Security for further a c tio n by the Commissioner of Social Security, and it may at any time order a d d itio n a l evidence to be taken before the Commissioner of Social Security, b u t only upon a showing that there is new evidence which is material and th a t there is good cause for the failure to incorporate such evidence into the re c o rd in a prior proceeding. . . . 4 2 U.S.C. § 405(g) (sentence six). Accordingly, there are two types of sentence six re m a n d s : "(1) where the Commissioner requests a remand before answering the complaint o f a claimant seeking reversal of an administrative ruling, or (2) where new and material e v id e n c e is adduced that was for good cause not presented during the administrative p ro c e ed in g s ." Buckner, 213 F.3d at 1010. H e re , the Plaintiff, not the Commissioner, is seeking remand and the remand is b e in g sought after, not before, the Commissioner has filed an answer. Consequently, the f irs t type of sentence six remand is not available.

8

T h e Commissioner argues that the second type of sentence six remand is a p p lica b le here; however, the second type of sentence six remand is also inapplicable b e c a u se here the Plaintiff is not seeking remand for consideration of evidence that is " n e w " within the meaning of this statute. The second type of sentence six remand is " a p p ro p ria te when the district court learns of evidence not in existence or available to the c la im a n t at the time of the administrative proceeding that might have changed the o u tc o m e of that proceeding." Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658 (19 9 0 ) (emphasis added). Since Plaintiff admits the New Evidence in question here e x is te d at the time of the Appeals Council decision, it is not "new" within the meaning of th e statute. R e m a n d pursuant to sentence four, however, is appropriate because the Appeals C o u n c il erred by not evaluating the New Evidence as required by the regulations. See G a r tm a n , 220 F.3d at 922; see also Goodwin v. Astrue, 549 F.Supp.2d 1125, 1131 (D. N e b . 2008) (remanding a case to the Commissioner pursuant to sentence four where the A p p e a ls Council admitted failing to consider new evidence presented to it by the c laim a n t). On remand, the Commissioner may consider the new, material evidence timely s u b m itte d , but not considered by, the Appeals Council. The Commissioner must d e te rm in e the import of that evidence, weighing it against the other medical evidence a lre a d y in the record, and determine whether the ALJ properly discounted the opinion of P la in tif f 's treating physician.

9

IV .

C o n c lu s io n The Court recommends that the District Court deny Plaintiff's Motion to

S u p p le m e n t the Record, grant Plaintiff's Motion for Remand, reverse the decision of the C o m m is s io n e r and remand to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). DATED this 12th day of March, 2009.

UNITED STATES MAGISTRATE JUDGE

10