Mosley v. Astrue

Filing 28

MEMORANDUM. Signed by Judge Gregory M. Sleet on 6/23/2015. (mdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

VIVIAN MOSLEY,
Plaintiff,

v.
MICHAEL J. AS TRUE,
Commissioner of Social Security,
Defendant.

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Civil Action No. 10-921-GMS

MEMORANDUM
I. INTRODUCTION

On October 13, 2011, the plaintiff Vivian Mosley ("Mosley") filed this action against the
defendant Michael J. Astrue,

Commissioner of Social

Security ("Astrue" or "the

Commissioner"), 1 for review of the final decision denying her disability insurance benefits
("DIB") and supplemental security income ("SSI") application under title II and XVI of the
Social Security Act. (D.I. 20 at 2; D.I. 26 at 5.) Mosley brought this civil action under 42
U.S.C. § 405(g) as incorporated by 42 U.S.C. § 1383(c)(3). (D.I. 20 at 2.)
Mosley initially applied for disability and disability insurance benefits on March 6, 2008.
(D.I. 13 at 88-103.)

Mosley's claims were denied initially and on reconsideration.

Subsequently, Mosley filed a request to have a hearing before an Administrative Law Judge
("ALJ"). (D.I. 13 at 59-60.) Mosley appeared and testified before the ALJ, Melvin D. Benitz,
1

Carolyn W. Colvin became the Commissioner of Social Security on February 13, 2013, after briefing
began. Although under Federal Rule of Civil Procedure 25, Carolyn W. Colvin should be substituted for Michael J.
Astrue, pursuant to 42 U.S.C. § 405(g) no further proceedings are necessary to continue this action.

on May 28, 2009. (Id. at 34--41.) On July 10, 2009, the ALJ issued an unfavorable decision
against Mosley. (Id. at 8-18.) The Appeals Council denied review on September 1, 2010, and
the ALJ's determination became final.

20 C.F.R. §§404.955, 404.981, 416.1455, 416.1481

(2012); Sims v. Apfel, 530 U.S. 103,107 (2000); Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.
2001); (D.I. 13 at 1-4.)
Presently before the court are Mosley's motion for summary judgment and the
Commissioner's cross-motion for summary judgment. For the reasons that follow, the court will
deny Mosley's motion and grant the Commissioner's cross-motion. The court will affirm the
decisions of the ALJ and the Appeals Council. The court's reasoning follows.
II.

BACKGROUND
At the time of her hearing, Mosley was a forty-two year old mother

~ith

a high school

education through the eleventh grade. (D.I. 13 at 88, 121-22.) Prior to her injury, Mosley
worked as a construction laborer/flagger. (Id. at 125.) On July 23, 2004, Mosley experienced a
sharp pain in her lower back while helping a coworker lift a heavy generator. (Id. at 201.)
Mosley was able to finish her day at work after the pain subsided but she began to feel increased
back pain in the days following the incident. (Id. at 201.) Mosley frequently visited doctors for
pain related treatment. (Id. at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444, 445, 447,
449,455,461,463,467,469,472,477,479,482,484,487,489,552-53, 581,649,664-66.) In
spite of her ongoing back pain, Mosley was able to attend church services, walk for exercise,
perform some housework, shop a couple times per week, prepare simple meals, watch television,
and help raise a grandchild. (Id. at 28, 33, 133-35, 549.)

2

A.

Mosley's Medical Records

Mosley submitted medical records in support of her DIB and SSI applications. These
medical records document the treatment of her lower back injury and are outlined below.
1. Relevant Medical Evidence

As noted, on July 23, 2004, Mosley was injured while helping a coworker lift a generator.
(D.I. 13 at 201.) Three days after the incident, on July 26, 2004, Mosley visited her employer's
worker compensation carrier's physician, Vaneeta Kubal, M.D.

(Id.)

Dr. Kubal diagnosed

Mosley with a lumbar strain and planned to place Mosley on a modified work program. (Id.) On
July 30, 2004, a week after the incident, Mosley visited her general practitioner Jui-Chih Hsu,
M.D. (Id. at 206.) Dr. Hsu similarly diagnosed Mosley as having suffered a lumbar sprain. (Id.
at 158, 206.) In his examination the straight-leg t~st was positive, but the remainder of the exam
produced normal results. (Id. at 206.) On August 12, 2004, Mosley received an MRI which
showed a small central disc herniation at L5-S 1 with mild bilateral neural foraminal narrowing
more prominent on the left. (Id. at 192.) Mosley was cleared to return to work, with restrictions,
during an August 16, 2004, visit to Dr. Hsu. (Id. at 191.) On September 9, 2004, Mosley
received a physical therapy evaluation by Mr. Patrick W. Stauffer. (Id. at 183.) Mr. Stauffer
noted Mosley was making good progress and that her pain had decreased to zero while resting
and two on a ten point scale while active. (Id. at 184.) Mosley received a second MRI on
September 22, 2004, which showed a small disc protrusion at T8-9. The remainder of the exam
was unremarkable. (Id. at 178.)
Mosley continued to visit doctors for her pain issues despite multiple diagnoses of normal
and recovered health. (Id. at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444, 445, 447,
449, 455, 461, 463, 467, 469, 472, 477, 479, 482, 484, 487, 489, 552-53, 581, 649, 664-66.)

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Mosley had approximately one hundred medical appointments between July 30, 2004 and April
22, 2010. (D.I. 27 at 2.) At these appointments she was often prescribed pain killers or given

lumbar epidural injections. (D.I. 13 at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444,
445, 447,449, 455, 461, 463, 467, 469, 472, 477, 479, 482, 484, 487, 489, 552-53, 581, 649,
664-66.) Dr. Kim, M.D. at the Mid-Atlantic Spine, treated Mosley multiple times for her back

pain. On October 11, 2004, Mosley requested Dr. Kim's office complete forms documenting her
disability for the Department of Social Services. (Id. at 343, 359-60.) Dr. Kim's office denied
Mosley's request and questioned whether Mosley was motivated by a secondary gain. (Id.)
From 2005 to 2009 Mosley maintained regular monthly visits with Dr. Kim and one of
his associates, Lee Irwin, M.D. Physical exams showed no muscle atrophy and a normal gait,
however, Drs. Kim

~d

Irwin continued to maintain and manage Mosley's medications and

administer nerve blocks. (Id. at 256, 258-62, 282, 292, 302, 311, 316-17, 326, 328, 444, 445,
447,449, 455, 461,463,467, 469, 472, 477, 479, 482, 484, 487, 489, 552-53, 581, 649, 664-66.) Dr. Irwin commented in his examination notes, on multiple occasions, that Mosley received

good pain relief from treatment and saw no visible signs of swelling.

(Id. at 552-637.)

Additionally, Dr. Irwin noted Mosley had good memory and concentration. (Id.)
Mosley was later examined by David Stephens, M.D. for an evaluation requested by her
attorney. (Id. at 427-30.) In this physical examination Dr. Stephens determined Mosley had
healed from a lumbar strain. (Id. at 429.) In Dr. Stephens's opinion Mosley could have worked
in light duty capacity from the time of her injury until October 18, 2004, and thereafter returned
to full-time medium work without restrictions. (Id. at 430-31.) Dr. Stephens performed a
follow-up exam on Mosley in June 2005. (Id. at 386-91.) This exam showed Mosley had a
normal stance and gait. (Id. at 387.) Dr. Stephens believed Mosley could return to full-time

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light duty work. (Id. at 388, 390.) In October 2007, Mosley asked Dr. Irwin to switch her pain
medication because she was applying for jobs and did not want the medication to come up on a
urine test. (Id. at 459.) In 2008, multiple doctors determined Mosley's condition was normal
and that she could perform full-time light duty work. (Id. at 444.) In 2009, during Mosley's
monthly visits to Dr. Irwin her strength, muscle tone, and gait remained normal even though
Mosley continued to complain of pain. (Id. at 680, 683, 686, 689, 733, 736, 742, 745.)

2. Medical Evidence Post ALJ Decision
As a result of Mosley's continued complaints, Dr. Irwin suggested Mosley try a spinal
cord stimulator for pain relief.

(Id. at 700, 718-19.) The spinal cord stimulator produced

seventy percent back pain relief. (Id. at 715.) Subsequently, Mosley elected to have a stimulator
permanently implanted. (Id.) The stimulator was implanted on April 22, 2010. (Id. at 706-07.)

B.

Hearing Testimony
1. Mosley's Testimony

Mosley testified she last worked in July 2004.

(D.I. 13 at 23.)

She testified she

experienced a lower back injury while working at Guardian Construction. (Id.) Mosley further
testified she had been working construction as a flagger for twelve years. (Id. at 23-24.) Mosley
testified she was receiving injections, nerve ablations, narcotics, and therapy for her lower back
injury. (Id. at 24.) Mosley claimed to have chronic pain all day with significant swelling
coupled with the left side of her body giving out occasionally or locking up. (Id. at 24-25, 30.)
Mosley testified that she takes pain medication to alleviate her pain, but that the pain medication
does not completely alleviate her pain and the medication makes her groggy. (Id.) Mosley also
asserted that she can only sit for twenty to thirty minutes, stand for forty-five minutes, and lift
ten to twenty pounds without pain. (Id. at 26, 35.) Mosley stated she cannot work due to

5

constant pain and grogginess. (Id. at 27.) Mosley testified to exercising at least two days a
week, performing light household chores (e.g., dishes, sweeping, and meal preparation), and
attending church weekly. (Id. at 25, 28, 33.) In addition, Mosley testified that she spends her
days watching television, reading, or sleeping. (Id. at 28.)
2. Vocational Expert's Testimony
An independent vocational expert ("VE") testified Mosley could return to light duty

work.

(D.I. 13 at 36.) The VE testified that a person with Mosley's characteristics could

perform sedentary work as a security monitor and that there are about 275 security monitor
positions within a seventy-five mile radius of Mosley's location. (Id.) In addition, the VE
testified a person with Mosley's characteristics could also perform work as an envelope
addresser/stuffer or information clerk.

(Id.)

There are approximately 475 envelope stuffer

positions and 400 information clerk positions locally. (Id.) The VE testified that all of the above
positions are sedentary and unskilled and available in the national economy. (Id.) Further, the
VE testified that the individual with Mosley's characteristics could perform light work as a gate
tender, mail clerk, or office helper. (Id. at 36-37.) Each of the positions would allow the person
to sit or stand based on their preference. (Id.)
C.

The ALJ's Findings

The ALJ conducted the standard five-step procedure to determine whether plaintiff was
disabled. See infra III.A. His findings may be summarized as follows:
1. Plaintiff meets the insured status requirements of the Social Security Act through
December 31, 2009.
2. Plaintiff has not engaged in substantial gainful activity since July 23, 2004, the alleged
onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. Plaintiff has the following severe impairments: degenerative disc disease (20 CFR
404.1520(c) and 416.920(c)).

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4. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1 (20 CFR 404.1525, 404.1526 and 416.926).
5. Plaintiff has the residual capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except she must be able to alternate position between sitting
and standing and she must avoid heights and hazardous machinery. She must avoid
temperature extremes, she can attend and complete tasks, and she requires simple routine
jobs with low stress and low memory.
6. Plaintiff is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. Plaintiff was born on June 30, 1967 and was 37 years old, which is defined as a younger
individual 18-49, on the alleged disability onset date. (20 CFR 404. 1563 and 416.963).
8. Plaintiff has at least a high school education and is able to communicate in English (20
CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant
is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering plaintiffs age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that plaintiff can
perform (20 CFR 404.1569, 404.1569(a), and 416.969(a)).
11. Plaintiff has not been under a disability, as defined by the Social Security Act, from July
23, 2004, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
(D.I. 13 at 13-18.)

III.

LEGAL STAND ARDS
A.

Review of an Agency Decision

A district court's review of an ALJ's decision is limited to whether that decision is
supported by substantial evidence. See Jesurum v. Secy of the U.S. Dep 't of Health & Human

Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.
1988)); see also 42 U.S.C. § 405(g). If the decision is supported by substantial evidence, the
court is bound by the factual findings therein. See Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999). "Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987). The
court does not weigh the evidence or substitute its conclusions for those of the fact finder. See
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Early v. Heckler, 743 F.2d 1002, 1007 (3d Cir. 1984). "Overall this test is deferential, and we

grant similar deference to agency inferences from fact if those inferences are supported by
substantial evidence, even where this court acting de novo might have reached a different result."
Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). The inquiry is not whether

the reviewing court would have made the same determination but, rather, whether the
Commissioner's conclusion was reasonable. See Brown, 845 F.2d at 1213.
Thus, "a single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by countervailing evidence."
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000).

Nor is evidence substantial if it is

overwhelmed by other evidence-particularly certain types of evidence (e.g., that offered by
treating physicians)-or if it really constitutes not evidence but mere conclusion. Id. Where, for
example, countervailing evidence consists primarily of the claimant's subjective complaints of
disabling pain or mental disability, the ALJ "must consider the subjective pain and specify his
reasons for rejecting these claims and support his conclusion with medical evidence in the
record." Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990). Despite the deference due to
administrative decisions in disability benefit cases, "appellate courts retain a responsibility to
scrutinize the entire record and to reverse or remand if the [Commissioner]'s decision is not
supported by substantial evidence." Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981).
B.

Disability Determination

A person must be disabled under the Social Security Act to receive DIB and SSL 42
U.S.C. § 423. A person is disabled if they have the inability to engage in 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

8

of not less than twelve months. 42 U.S.C. § 423(d)(l)(a). For an individual to be considered
"disabled" the Act states ( 1) an individual is disabled if [s]he is "not only unable to do [her]
previous work" but is also unable to "engage in any other kind of substantial gainful work which
exists in the national economy" and (2) to define ''work which exists in the national economy" as
"work which exists in significant numbers either in the region where such individual lives or in
several regions of the country." See Facyson v. Barnhart, 94 F. App'x 110, 112 (3d Cir. 2004)
(quoting 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B)).
IV.

DISCUSSION
After considering the record, the parties' submissions and arguments, and the applicable

law, the court finds the ALJ's decision is supported by substantial evidence.
A.

The ALJ's ~isability Determination

The ALJ must follow the SSA's five-step sequential evaluation process to determine
whether a claimant suffers from a physical or mental disability. Fraser v. Astrue, 373 F. App'x
222, 224 (3d Cir. 2010). In the determination, the ALJ must consider: (1) the claimant's current
work activity; (2) the medical severity and duration of the claimant's impairments; (3) whether
the claimant's impairments meet or equal the requirements of an impairment listed in the
regulations; (4) whether the claimant has the residual functional capacity to return to past
relevant work; and (5) if the claimant cannot return to past relevant work, whether he or she can
"make an adjustment to other work in the national economy."

Id. (citing 20 C.F.R.

§404.1520(a)(4)(i)-(v)). The claimant bears the burden of proof on steps one through four. Id.
While the Commissioner bears the burden of proof at step five. Id.
1. Step One

At step one, the ALJ must determine the claimant's current work activity, more

9

specifically, whether the claimant is engaged in substantial gainful activity. In this case, both
parties agree the claimant has not engaged in substantial gainful activity since July 23, 2004.

2. Step Two
At step two, the ALJ must determine whether the claimant has a medically determinable
impairment that is "severe" or a combination of impairments that is "severe." 20 C.F.R. §
404.1520(c); 416.920(c). An impairment or combination of impairments is "severe" within the
meaning of the regulations if it significantly limits an individual's ability to perform basic work
activities. 20 C.F .R. §§404.1523; 416.923.
Here, the ALJ found that Mosley had a "severe" impairment-degenerative disc disease.
The ALJ based this finding on the objective medical evidence established by an August 2004
MRI that showed a small central herniated disc at L5-S 1 with mild bilateral neural foraminal
narrowing more prominent on the left. (See D.I. 13 at 192.) Additionally, the finding was based
on a September 2004 MRI of the thoracic spine showing a small disc protrusion at T8-9. (Id. at
1.78.)

3. Step Three
At step three, the ALJ must determine whether the claimant's impairment meets or
medically equals the criteria of an impairment listed in 20 CFR § 404, Subpart P, app. 1. 20
C.F.R. §404.1520(d), 404.1525, 404.1526, 416.925, and 416.926. If the claimant's impairment
meets or medically equals the criteria of a listing and meets the durational requirement, the
claimant is disabled. If it does not, the analysis proceeds to the next step. An impairment
matches a listing if it meets all of the specified medical criteria; an impairment that manifests
only some of these criteria, no matter how severe, does not qualify. See Williams v. Sullivan,
970 F.2d 1178, 1186 (3d Cir. 1992).

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Here, the ALJ found that Mosley does not have an impairment that meets or medically
equals one of the listed impairments. The ALJ considered the listing in 1.04. The ALJ correctly
determined that Mosley does not have the neurological deficits required by the listing.

4. Step Four
In step four, the ALJ determined that the claimant is unable to perform past relevant work
as a construction laborer/flagger. The ALJ determined that Mosley's past relevant work was
light work, but it did not allow her to avoid hazardous machinery or temperature extremes.
Substantial evidence supports this determination.

5. Step Five
At step five, the ALJ determines if there are a significant number of jobs in the national
economy for individuals with the claimant's age, education, work experience, and residual
functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(g) and 416.920(g). In establishing the
claimant's RFC, the ALJ must pose a hypothetical which accurately conveys all of the claimant's
established limitations to an independent vocational expert. See Rutherford v. Barnhart, 399
F.3d 546, 554 (3d Cir. 2005). During step five, a portion of the burden shifts to the Social
Security Administration because it is responsible for providing evidence that demonstrates what
other work exists in significant numbers in the national economy that claimant can perform.
Here, the ALJ correctly determined Mosley's RFC as able to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) with restrictions. The ALJ determined Mosley
must have a position that allows her to alternate between sitting and standing throughout the day.
(Id. at 35.) Additionally, the ALJ found that Mosley must avoid work environments that include

exposure to heights, hazardous machinery, and extreme temperatures. (Id.) Further, the ALJ

11

determined that Mosley could attend to tasks and complete schedules, and she requires simple,
routine jobs with low stress and low memory. (Id.)
The VE testified based on Mosley's age, education, work experience, and RFC that there
are jobs available in the national economy. (Id. at 36.) Mosley is eligible to be a gate tender,
mail clerk, office helper, security monitor, envelope stuffer, and information clerk. (Id. at 18.)
Based on the VE's testimony, the ALJ concluded that Mosley is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy. (Id.)
B.

The ALJ's Credibility Determination

The ALJ is the factfinder and credibility determinations are the ALJ's alone. See Pysher
v. Apfel, 2001 WL 793305, at *2 (E.D. Pa. July 11, 2001) (citing Van Horn v. Schweiker, 717

F.2d 871, 873 (3d Cir. 1983)). The district court may only disturb the determinations of th~ ALJ
if they are not supported by substantial evidence. Id. The ALJ is entitled to reject evidence but
must explain why that evidence has been rejected. See Cotter v. Harris, 642 F.2d 700, 705-06
(3d. Cir. 1981 ).
When considering evidence of subjective complaints of pain the ALJ reviews the
evidence through a two-part test. See Williams, 970 F.2d at 1186 (citing 42 U.S.C. § 423(d)(3)).
First, medical or laboratory records must be presented to show the claimant has a medical
impairment which could reasonably be expected to produce the claimant's pain. 20 C.F.R. §§
404.1529(b) and 416.929(b); Williams, 970 F.2d at 1186.

Second, if the impairment is

established, the intensity, persistence, and limiting effects of the symptoms must be reviewed to
determine the extent to which the symptoms limit a person's ability to perform basic work
functions. 20 C.F.R. §§ 404.1529(c) and 416.929(c); Williams, 970 F.2d at 1186 (citing Green v.
Schweiker, 749 F.2d 1066, 1069-70 (3d Cir. 1984)). If there is no objective medical proof of the

12

symptoms the ALJ must make a credibility determination based on the entire record. Williams,
970 F.2d at 1186 (citing Green v. Schweiker, 749 F.2d 1066, 1069-70 (3d Cir. 1984)).
Mosley argues ''the ALJ failed to materially follow the requirements of SSR 96-7p and
that a reasonable personal would not accept the ALJ's explanation for rejecting her statements."
(D.I. 20 at 24.) The ALJ determined Mosley's statements concerning the intensity, persistence,
and limiting effects of her alleged symptoms were not of such magnitude as to be inconsistent
with the residual functional capacity assessment. (D.I. 13 at 16.)
The court concludes that there is substantial evidence to support the ALJ's credibility
determination.

After his review the ALJ rejected Mosley's claims as to the degree of her

limitation. The medical evidence shows Mosley experienced a lumber strain after lifting a heavy
generator at work. (Id. at 88.) The medical evidence furtI?-er shows Mosley received good
results from physical therapy, medications and treatments, and continued to produce normal
physical exams with multiple doctors. (Id. at 184, 444, 552-637.) Drs. Hsu, Stephens, and Irwin
all released Mosley to light work as early as August 2004. (Id. at 191, 388, 390, 430-31, 444.)
Dr. Irwin noted that Mosley had good memory and was able to concentrate well during his
examinations. (Id. at 552-637.) The credibility of Mosley's testimony is undermined by both
the objective medical evidence and her testimony concerning her continued activities. Mosley
testified that she frequently visited doctors, attended church services, walked for exercise,
performed light housework, shopped a couple times per week, prepared simple meals, watched
television, and helped raise her grandchild. (Id. at 28, 33, 133-35, 549.) Further, Mosley spent
time looking for a job in 2007. (Id. at 459.)
The ALJ gave controlling weight to the opinions of Mosley's treating physicians in his
credibility determination because the doctors' opinions were supported by objective physical

13

findings. (Id. at 16.) Specifically, the ALJ considered the multiple physical exams by multiple
, doctors from August 2004 to April 2010 during which Mosley was examined and showed no
signs-and reported no symptoms-of debilitating pain. (Id. at 14-16.) Put simply, the ALJ
gave Mosley's testimony little weight because it was not credible in light of the medical
evidence, her interactions with medical professionals, continued activities, and ongoing
employment search. See SSR 96-7p; (D.I. 13 at 16.) The court concludes that the ALJ's
credibility determination was supported by substantial evidence.
C.

Request for Sentence Six Remand

The court may remand under sentence six of section 405(g) of the Act if there is new
evidence of material significance the ALJ has not previously seen. Matthews v. Apfel, 239 F.3d
589, 593 (3d Cir. 2001). There
presented.

Id.

m~st

be good cause as to why the evidence was not previously

To be material the new evidence must be relevant, probative, and have a

reasonable possibility that if it had been presented the outcome would have been different.
Szubak v. Sec'y ofHealth and Human Serv., 745 F.2d 831, 833 (3d Cir. 1984).

Mosley argues the spinal cord stimulator evidence is new evidence which should be
considered in a sentence six remand. (See D.I. 20 at 24-27.) The Commissioner argues Mosley
has failed to prove that the spinal cord stimulator evidence is material. (D.1. 26 at 22.)
Here, it is undisputed that the evidence at issue could not have been presented at the
original hearing. The spinal cord stimulator was implanted after the hearing, thus the evidence is
new. See Szubak, 745 F.2d at 833. The court concludes that while this evidence is new it is not
material. Material evidence must have the reasonable possibility of changing the ALJ's decision.
Id. For the spinal cord stimulator evidence to be material it would need to corroborate Mosley's

pain testimony. See id. Here, the implantation provided Mosley with even greater pain relief.

14

(D.I. 13 at 75.) Rather than demonstrating disability, such successful treatment instead shows
that Mosley received even more pain relief after the ALJ's decision as a result of the implant.
Therefore, a sentence six remand would not be appropriate as the new evidence does not create a
reasonable possibility of changing the ALJ's decision.
V.

CONCLUSION
The court concludes that the ALJ' s decision was supported by substantial evidence.

Mosley's complaints of pain were not supported by objective medical evidence and the court
concludes substantial evidence supports the ALJ's finding she could perform multiple light duty
positions. The court determines a sentence six remand is not warranted in light of the asserted
new evidence. Thus, the court will grant the Commissioner's motion for summary judgment and
deny Mosley's motion for summary judgment.

Dated: June

?- '3 , 2015

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