Chubbuck v. Social Security

Filing 28

ORDER denying 23 Motion for Leave to Supplement Record. See Attached Ruling. Signed by Judge Holly B. Fitzsimmons on 6/17/2011. (Garcia, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WALDREN CHUBBUCK
V.
MICHAEL J. ASTRUE
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION

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CIV. NO. 3:10CV1689(WWE)

RULING: MOTION FOR LEAVE TO SUPPLEMENT RECORD [DOC. # 23]
The plaintiff, Waldren Chubbuck, filed this action seeking
reversal of the Commissioner's decision denying his claim for
disability and supplemental security income benefits under the
Social Security Act. [doc. # 22].

The defendant, Commissioner of

Social Security, moves to affirm the final decision of the
Commissioner. [doc. # 27]. In addition, plaintiff moves for leave
to file a supplement to the record to add a “Rating Decision”,
dated October 14, 2010, issued by the Appeals Management Center
of the Department of Veterans Affairs, after the Decision Review
Board affirmed the ALJ’s decision. [doc. # 23]. The defendant
objects to plaintiff’s motion for leave to supplement the record.
[doc. # 24].
For the following reasons, plaintiff’s motion for leave to
supplement the record [doc. # 23] is DENIED. The remaining
motions [docs ## 22, 27] are under advisement.

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Plaintiff asks the Court to permit him to supplement the
record with evidence that was not before the ALJ. [doc. # 23].
Specifically, plaintiff would have the Court consider a Rating
Decision, dated October 14, 2010, issued by the Appeals
Management Center of the Department of Veterans Affairs. The
Rating Decision concluded that, effective June 20, 2007,
plaintiff suffers from service connected post-traumatic stress
disorder, with an evaluation of 30% disabled, and granted
plaintiff total benefits under Title 38 of the Code of Federal
Regulations. Contrary to plaintiff’s assertion, because “the
district court acts as an appellate court and not a trier of fact
in social security cases, it may not consider evidence outside of
the administrative record in reviewing a claim for benefits.”
Bethea v. Astrue, 2011 WL 977062, at *9 -10

(D. Conn. March 17,

2011). See 42 U.S.C. § 405(g) (“The court shall have power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”) (emphasis added). Therefore, plaintiff
is not permitted to supplement the record with the Rating
Decision.
While plaintiff did not specifically make this request, the
court can properly remand the case to the Social Security
Administration under sentence six of 42 U.S.C. § 405(g) “sua

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sponte, based on its finding that the post decision material is
both new and material.”1 Schmidt v. Comm’r of Social Sec., 2009
WL 3125474, at *3 (E.D. Mich. Sept. 25, 2009) (citing Street v.
Comm'r of Social Sec., 390 F. Supp. 2d 630, 640 (E.D. Mich.
2005)).
The Second Circuit applies a three-part test to determine
whether a remand for new evidence should be ordered:
[The party seeking the remand] must show that the proffered
evidence is (1) “‘new’ and not merely cumulative of what is
already in the record,” Szubak v. Secretary of Health &
Human Servs., 745 F.2d 831, 833 (3d Cir.1984), and that it
is (2) material, that is, both relevant to the claimant's
condition during the time period for which benefits were
denied and probative, see Cutler v. Weinberger, 516 F.2d
1282, 1285 (2d Cir. 1975). The concept of materiality
requires, in addition, a reasonable possibility that the new
evidence would have influenced the Secretary to decide
claimant's application differently. See Szubak, 745 F.2d at
833; Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir.1981).
Finally, claimant must show (3) good cause for her failure
to present the evidence earlier. See Tolany v. Heckler, 756
F.2d 268, 272 (2d Cir. 1985) (good cause shown where new
diagnosis was based on recent neurological evaluation and
assessment of response to medication required observation
period).
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991). See also Roman
v. Apfel, 24 F. Supp. 2d 263 (D. Conn. 1998) (Nevas, J.).
The first and third prongs are satisfied. This report is new
as it was neither available at the time of the hearing before

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“A remand pursuant to sentence six of section 405(g) is
warranted if new, non-cumulative evidence proffered to the
district court should be considered at the agency level.” Whipple
v. Astrue, 2011 WL 1299352 (N.D.N.Y. March 8, 2011) (citing Lisa
v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 43 (2d
Cir. 1991)).
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Judge Thomas on February 17, 2010 nor at any time before the
ALJ’s decision dated May 25, 2010, through no fault of the
plaintiff.
However, the second prong is not satisfied. The report is
not material or relevant to the plaintiff’s condition during the
time period for which benefits were denied.

It is undisputed

that to qualify for disability, plaintiff was required to prove
he was disabled between October 1, 2003, the alleged onset date,
and December 31, 2004, the date last insured. The report
evaluated evidence from 2008 forward and concluded plaintiff
suffered a 30 percent disability as of June 20, 2007. As such,
the report does not express any view as to the plaintiff’s PTSD
for the relevant time period.
Accordingly, remand under sentence six is not appropriate.
The report, while new and absent for good cause, is not material
to the time period for which benefits were denied and therefore
would most likely not change the ALJ’s analysis.
CONCLUSION
The plaintiff’s motion for leave to supplement the record
[doc. # 23] is DENIED. This is not a recommended ruling.

This

ruling is reviewable pursuant to the “clearly erroneous”
statutory standard of review.

28 U.S.C. § 636 (b)(1)(A); Fed. R.

Civ. P. 6(a), 6(e) and 72(a); and Rules 72.1, 72.2 of the Local
Rules for United States Magistrate Judges.

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As such, it is an

order of the Court unless reversed or modified by the district
judge upon motion timely made.
SO ORDERED at Bridgeport this 17th day of June 2011.

__________/s/________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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