O'Neal v. Astrue

Filing 20

ORDER adopting re 17 Report and Recommendations. Therefore, the Commissioner's final decision is AFFIRMED, this civil action is CLOSED, and a final judgment shall be ENTERED in favor of the Commissioner. Signed by Judge Dudley H. Bowen on 9/7/11. (cmr)

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U.S. DISTRU1
IN THE UNITED STATES DISTRICT COURTAUIGU-ST"L.
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION

LiiI I

SEF -7 AM Q: 19

CLERK____________
SO. DIS1'. OF GA.

CLAUDETTE O'NEAL,
Plaintiff,
V.

CV 310-055

MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant.

ORDER
After a careful,

de novo

review of the file, the Court concurs with the Magistrate

Judge's Report and Recommendation ("R & R"), to which objections have been filed (doe. no.
19). The majority of Plaintiffs objections are primarily a reiteration of the arguments
presented in her brief, namely that the AU 's decision is not supported by substantial evidence.
However, one point merits further discussion.
In the R & R, the Magistrate Judge determined that the Court could not consider
evidence of the practice specialties of Dr. Julian Earls and Dr. Vasudev Kulkami because that
evidence was not included in the administrative record and was only attached as exhibits to
Plaintiffs brief doe. nos. 12-1, 12-2.) The R & R explained that consideration of this
evidence pursuant to sentence four of 42 U.S.C. § 405(g) was foreclosed under established
law, Falge V. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998), and that Plaintiff had not asserted
that the evidence warranted remand pursuant to sentence six of § 405(g). (Doc. no. 17, pp. 57.) In her objections, Plaintiff argues for the first time that the Court could consider the

evidence as supporting a sentence six remand "where there is a reasonable possibility that the
new material would change the administrative outcome." (Doc. no. 19, pp. 2-3.) The Court
has discretion whether to consider an argument that was not first presented to the Magistrate
Judge. Williams v. McNeil, 557 F.3d 1287. 1292 (11th Cir. 2009). The Court exercises this
discretion and proceeds to consider Plaintiffs argument.
Sentence six provides the Court with the authority to remand a case to the
Commissioner for consideration of new evidence submitted to the Court. Ingram v. Comrn'r
of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th Cir. 2007). Although In gr am distinguished
the standard for remand pursuant to sentence four from the standard for remand pursuant to
sentence six, the applicable standard for a sentence six remand remains the one set out in
Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986): "the claimant must establish that:
(1) there is new, noncumulative evidence; (2) the evidence is 'material,' that is, relevant and
probative so there is a reasonable possibility that it would change the administrative result; and
(3) there is good cause for the failure to submit the evidence at the administrative level." The
Court need not analyze the first and second prongs because Plaintiff provides no explanation,
much less "good cause," for why she failed to submit this evidence at the administrative level.
Plaintiff's objections are without merit and are OVERRULED. Accordingly, the
Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the
Court. Therefore the Commissioner's final decision is AFFIRMED, this civil action is
CLOSED, and a final judgment s 1 be ENTERED in favor of the Commissioner.
SO ORDERED this

'of Septem01 1, at Augus
Pld

UNITED STAT VS DISTRICT JUDGE