Weimer v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 8, 2014. (src)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
RYAN W. WEIMER
CAROLYN W. COLVIN,1
Acting Commissioner of the Social Security Administration
Plaintiff, Ryan W. Weimer, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for Child’s Insurance Benefits (CIB) and Supplemental
Security Income (SSI) benefits under the provisions of Titles II and XVI of the Social Security
Act (Act). In this judicial review, the Court must determine whether there is substantial evidence
in the administrative record to support the Commissioner’s decision. See 42 U.S.C. § 495(g).
Plaintiff filed his applications for CIB on January 25, 2011, and for SSI on February 2,
2011, alleging disability beginning February 4, 2011, due to learning disability, borderline
retardation, not adapting well in new situations, being very vulnerable, naive, and trusting,
depression, seizure disorder, memory problems, back problems, and asthma. (Tr. 29, 164-165,
173-178, 214). An administrative hearing was held on April 3, 2012, at which Plaintiff and his
mother appeared, and Plaintiff chose not to be represented by counsel. (Tr. 63-104).
Carolyn W. Colvin, has been appointed to serve as acting Commissioner of Social Security, and is substituted as
Defendant, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
By written decisions dated June 27, 2012, the ALJ found that Plaintiff had the following
severe impairments - seizure disorder, learning disorder, and mood disorder. (Tr. 31, 45).
However, after reviewing all of the evidence presented, he determined that Plaintiff’s
impairments did not meet or equal the level of severity of any impairment listed in the Listing
of Impairments found in Appendix, I, Subpart P, Regulation No. 4. (Tr. 32, 46). The ALJ found
Plaintiff retained the residual functional capacity (RFC) to:
perform medium work as defined in 20 CFR 404.1567(c) except as
follows: The claimant can occasionally lift and/or carry fifty pounds and
frequently twenty five pounds, sit for six hours in an eight-hour workday,
and stand and/or walk for six hours in an eight-hour workday. The
claimant must avoid hazards including unprotected heights and moving
machinery. The claimant can understand, remember, and carry out
simple, routine, repetitive tasks. He can respond to usual work situations
and routine work situations. The claimant can respond to supervision that
is simple, direct, and concrete.
(Tr. 34-35, 48).
With the help of a vocational expert, the ALJ determined Plaintiff could
perform work as a kitchen helper/dishwasher, hand packager, and bagger/sacker. (Tr. 38, 52).
Subsequent to the entry of the ALJ decision, Plaintiff obtained counsel, who requested
a review of the hearing decision by the Appeals Council, which denied the request on September
24, 2012. (Tr. 1-4, 5-8). Subsequently, Plaintiff filed this action . (Doc. 1). This case is before
the undersigned pursuant to the consent of the parties. (Doc. 7). On February 27, 2013, Plaintiff
filed a Motion for Remand and Brief with New Evidence in Support of Complaint for Judicial
Review. (Doc. 11). Defendant filed her brief, and the case is now ready for decision. (Doc. 12).
Reviewing courts have the authority to order the Commissioner to consider additional
evidence 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."
42 U.S.C. § 405(g); Woolf v. Shalala, 3 F.3d 1210 (8th Cir. 1993); Chandler v. Secretary of
Health and Human Servs., 722 F.2d 369, 371 (8th Cir. 1983). "To be material, new evidence
must be non-cumulative, relevant, and probative of the claimant's condition for the time period
for which benefits were denied, and there must be a reasonable likelihood that it would have
changed the Commissioner's determination." Woolf, 3 F.3d at 1215.
Dr. Robert Spray’s September 7, 2012 report, which is one of the items used as basis for
remand, did not exist on June 27, 2012, when the ALJ issued his decision, and that fact, coupled
with the fact that Plaintiff was unrepresented by counsel until after the ALJ decision, serves as
cause sufficient to excuse Plaintiff's failure to include these records in the administrative
proceedings. Goad v. Shalala, 7 F.3d 1397, 1398 (8th Cir. 1993).
Next, the Court considers the issue of materiality. "Medical evidence obtained after an
ALJ decision is material if it relates to the claimant's condition on or before the date of the ALJ's
decision." Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991)(quoting Williams v. Sullivan,
905 F.2d 214, 216 (8th Cir. 1990)); Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir.1984)
(“medical evidence of a claimant's condition subsequent to the expiration of the claimant's
insured status is relevant evidence because it may bear upon the severity of the claimant's
condition before the expiration of his or her insured status”).
The medical evidence of record revealed that Plaintiff had a long history of treatment for
seizure disorder, incidents of suicidal/homicidal ideation, and borderline intellectual
dysfunction/mild mental retardation. In looking at Dr. Spray’s Mental Medical Source Statement
dated September 13, 2012, the Court notes that Dr. Spray, who had been treating Plaintiff since
June 2007, found Plaintiff had marked limitation in eleven categories. (Doc. 11-2). After
reviewing the entire record, the Court finds that remand is appropriate for consideration of the
additional medical evidence as there is a reasonable likelihood that it would have changed the
Based on the foregoing, the Court remands this case to the Commissioner for
consideration of additional evidence pursuant to sentence six of 42 U.S.C. § 405(g).
DATED this 8th day of January, 2014.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?