Mason v. Commissioner of Social Security
ORDER denying 21 Amended Motion to Remand. Signed by Magistrate Judge Amanda Arnold Sansone on 11/30/2017. (DMP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No.: 8:17-cv-182-T-AAS
NANCY A. BERRYHILL, acting
Commissioner of Social Security,1
This cause comes before the Court following Plaintiff Barry Mason’s Amended Motion
for Remand Under Sentence Six of 45 U.S.C. § 405(g) (Doc. 21), and the Commissioner’s
Response (Doc. 23). For the reasons set out below, Plaintiff’s Motion for Remand is DENIED.
On April 13, 2015, Plaintiff filed an application for a period of disability and disability
insurance benefits. (Tr. 250–53). Plaintiff also filed an application for supplemental security
income. (Tr. 254–59). In his applications, Plaintiff claimed disability due to bipolar disorder and
throat cancer. (Tr. 295–302). The Commissioner denied Plaintiff’s claim initially and on
reconsideration. (Tr. 150–56, 163–64). Plaintiff then requested a hearing before an Administrative
Law Judge (“ALJ”), which took place on December 22, 2015. (Tr. 177, 192).
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for former
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken
to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
The ALJ issued her ruling on January 27, 2016. (Tr. 18–32). In her ruling, the ALJ found
that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine;
hypothyroidism; bipolar disorder; lengthy history of alcohol abuse, allegedly currently in
remission; and history of nicotine dependence. (Tr. 21). However, the ALJ found that Plaintiff’s
impairments, or combination of impairments, did not meet the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). (Id.). The ALJ then
concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work with
limitations. (See Tr. 23). Ultimately, the ALJ found that jobs existed in significant numbers in
the national economy which Plaintiff could perform given his age, education, work experience,
and RFC. (Tr. 31). Therefore, the ALJ found Plaintiff not disabled. (Tr. 32).
Less than six months after the ALJ’s ruling, Plaintiff reported to the emergency room at
Florida Hospital following an unwitnessed syncopal episode. (Doc. 17-1, p.7). Plaintiff stated
that he felt dizzy, his “legs gave out,” he passed out at a friend’s house three days prior, and that
he has had multiple syncopal episodes in the past. (Id.). During his stay at the Florida Hospital
emergency room, Plaintiff underwent a drug screen, chest x-ray, CT scan of his head, and a CT
scan of his lumbar spine. (Id. at 9–12). The lumbar spine CT scan revealed a small broad-based
lateral disc protrusion at L2-3 on the right, as well as mild generalized degenerative changes. (Id.
at 12). Plaintiff was ultimately diagnosed with benzodiazepine abuse, chronic low back pain,
lumbar herniated disc, marijuana abuse, and syncope. (Id. at 13).
Plaintiff then filed the current Motion for Remand arguing this case should be remanded
back to the ALJ so she can consider the evidence from Plaintiff’s emergency room visit. (Doc.
21). The Court will now address Plaintiff’s Motion.
Sentence six of 42 U.S.C. § 405(g) states that the Court “may . . . for good cause shown . .
. remand the case to the Commissioner of Social Security for further action . . . 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 . . . .” 2 Thus, to obtain a sentence
six remand, the party making the motion must show: (1) there is new, noncumulative evidence;
(2) the evidence is material; and (3) there is good cause for failing to previously submit the
evidence at the administrative level. Hunter v. Comm’r of Soc. Sec., 808 F.3d 818, 821 (11th Cir.
2015) (citation omitted). Evidence is new and noncumulative when no similar evidence was
introduced at the administrative level. Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir. 1988).
New evidence is material when it is “relevant and probative so that there is a reasonable possibility
that it would change the administrative result.” Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.
1986) (citation omitted). And good cause exists when the evidence did not exist at the time of the
administrative hearing. Cannon, 858 F.2d at 1546.
Here, Plaintiff argues that there is a reasonable possibility that his medical records from
the Florida Hospital emergency room would have caused the ALJ to issue a decision finding
Plaintiff disabled. (Doc. 21, p. 2). Specifically, Plaintiff claims that the hospital’s findings
regarding the disc protrusion in his lumbar spine and syncope are consistent with his testimony
from the hearing before the ALJ where he complained that he could only stand for twenty minutes
While sentence six of 42 U.S.C. § 405(g) states that a court may remand a case “on motion of
the Commissioner of Social Security,” the Eleventh Circuit has applied sentence six remand
analyses to motions for remand made by claimants. See, e.g., Caulder v. Bowen, 791 F.2d 872
(11th Cir. 1986).
a day and that he suffered from severe migraines. (Id. at 3). The Commissioner responds by
stating that, first, the new records do not document anything new regarding Plaintiff’s back pain,
and, second, Plaintiff’s syncope is a new diagnosis that Plaintiff has failed to show is related to an
impairment he complained about in the administrative process. The Court will address each of
Plaintiff’s contentions in turn.
Plaintiff’s Back Pain
Plaintiff’s final diagnosis at Florida Hospital included secondary findings of unspecified
thoracic, thoracolumbar, and lumbosacral intervertebral disc disorder, as well as low back pain.
(Doc. 17-1, p. 64). In her ruling, the ALJ found degenerative disc disease of the lumbar spine to
be one of Plaintiff’s severe impairments. (Tr. 21). Additionally, in finding that the Plaintiff had
the RFC to perform light work with limitations, the ALJ examined an x-ray showing Plaintiff had
mild spondylosis in his thoracic spine, as well as an MRI showing degenerative disc disease in
Plaintiff’s lumbar spine. (Tr. 24). Since there was already similar evidence regarding Plaintiff’s
back pain introduced at the administrative level, the Florida Hospital records are not new and, thus,
cumulative. Therefore, remand is unnecessary on this issue.
Plaintiff was principally diagnosed with syncope and collapse following his treatment at
the Florida Hospital emergency room. (Doc. 17-1, p. 64). The Commissioner concedes that
Plaintiff’s syncope is a new diagnosis as his records do not include any notation or observation of
syncope. (Doc. 23, p. 3). Therefore, the Florida Hospital records are new and noncumulative.
Good cause also exists for Plaintiff not providing the records to the ALJ as the records concern an
emergency visit made after the ALJ’s decision. Thus, the only question remaining is whether the
Florida Hospital records are material; that is, whether the records are relevant and probative
enough to make it reasonably possible that the records would have changed the ALJ’s decision.
Plaintiff argues that this finding is material because it was generated shortly after the ALJ’s
decision and there is a reasonable probability that Plaintiff’s level of functioning was the same at
the time of his emergency room visit as it was before the ALJ issued her decision. (Doc. 21, p. 5).
The Commissioner responds by pointing out that Plaintiff did not explain how the new evidence
is relevant and probative as to make it reasonably possible that it would have changed the ALJ’s
decision. (Doc. 23, p. 3). Instead, as syncope appears to be a new diagnosis, the Commissioner
submits that Plaintiff’s proper remedy would be to file a new disability application based on this
In Caulder, the Eleventh Circuit provided insight as to what makes new evidence material.
791 F.2d at 876. There, the Eleventh Circuit agreed with the Fifth Circuit in finding that “not
every discovery of new evidence, even if relevant and probative, will justify a remand to the
Secretary . . . .” (Id. at 876–77) (quoting Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981)).
Instead, the Eleventh Circuit indicated that evidence is material when “it pertains to a condition
that [the claimant] listed in his applications at the administrative level as a source of his disability.”
Id. at 877. Moreover, the Eleventh Circuit pointed out that there is a reasonable possibility new
evidence would change the ALJ’s decision when the new evidence directly relates to one of the
claimant’s principal alleged impairments. Id. at 878.
Here, Plaintiff failed to show how the new evidence from Florida Hospital diagnosing
Plaintiff with syncope directly relates to one of his alleged impairments. In the eighty-six pages
of medical records provided by Plaintiff, nowhere does one of Florida Hospital’s medical providers
state what the cause of Plaintiff’s syncope is. (See Doc. 17-1). Additionally, the Court has found
nothing in the medical records provided by Plaintiff during the administrative process showing
that his alleged impairments could cause syncope. (See Tr. 370–574). Without such evidence, the
Court cannot find that the new records pertain to a condition Plaintiff listed in his applications or
testified to at the ALJ hearing. Therefore, the Court finds the new evidence of syncope does not
require a remand as it is not material to Plaintiff’s alleged impairments at the time of the ALJ’s
Accordingly, after due consideration and for the foregoing reasons, it is ORDERED that
Plaintiff Barry Mason’s Amended Motion for Remand Under Sentence Six of 45 U.S.C. § 405(g)
DONE AND ORDERED in Tampa, Florida on this 30th day of November, 2017.
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