York v. SSA
Filing
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MEMORANDUM AND OPINION: The Court must reject York's motion for a remand for the consideration of new evidence before the Commissioner 7 . The plaintiff will need to proceed with the filing of a summary judgment motion to determine whether the ALJ's final decision was supported by substantial evidence. Signed by Judge G. Wix Unthank on 5/11/2011.(TED)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
CIVIL ACTION NO. 11-15-GWU
SUSAN L. YORK,
VS.
PLAINTIFF,
MEMORANDUM OPINION
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.
INTRODUCTION
On October 7, 2009, an Administrative Law Judge (ALJ) issued a decision
denying the claim of Susan York for Disability Insurance Benefits. (Tr. 10-18). The
claimant brought this action in federal district court to obtain judicial review. The
case is currently before the court on the plaintiff’s motion for a remand of the action
for the consideration of “new and material” evidence pursuant to sentence six of 42
U.S.C. § 405(g). The defendant opposes the motion.
DISCUSSION
York submitted several additional medical records directly to the Appeals
Council and the court which were never seen by the ALJ. This action raises an
issue concerning a remand for the taking of new evidence before the
Commissioner. Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993).
A court may order additional evidence be taken before the Commissioner,
" . . . but only upon a showing that there is new evidence to be taken which is
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material and there is good cause for the failure to incorporate such evidence into
the record in a prior proceeding . . . ." 42 U.S.C. § 405(g). The statute provides that
a claimant must prove that the additional evidence is both “material” and that “good
cause” existed for its not having been submitted at an earlier proceeding. Sizemore
v. Secretary of Health and Human Services, 865 F.2d 709, 710 (6th Cir. 1988). In
order to demonstrate "materiality," a claimant must show that a reasonable
probability exists that the Commissioner would have reached a different conclusion
if originally presented with the new evidence. Sizemore, 865 F.2d at 711. The party
seeking the remand bears the burden of showing that a remand is proper under §
405. Willis v. Secretary of Health and Human Services, 727 F.2d 551 (6th Cir.
1984).
The medical records with which York seeks a remand of the action include
Medical Assessments of Ability to Perform Work-Related Activities from Dr. Bradley
Mullen (Tr. 458-460), Dr. Patrick Burns (Tr. 463-465), and Dr. Michael Woods (Tr.
474-476), two letters from Dr. Robert Noelker (Tr. 469-470) and a Mental
Assessment of Ability to Do Work-Related Activities Form from Dr. Noelker (Docket
Entry No. 9, Attachment 1).1 These records reveal extensive mental (Dr. Noelker)
and physical (Dr. Mullen, Dr. Burns, and Dr. Woods) restrictions. After review of the
Dr. Noelker’s mental assessment was the only new evidence not submitted to
the Appeals Council and included in the transcript. The other documents were attached
to plaintiff’s Motion to Remand at Docket Entry No. 7, Attachments 4-7, as well as
included in the Transcript as Exhibits 27-30. (Tr. 4).
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evidence presented, the undersigned concludes that the plaintiff’s motion must be
denied.
York asserts that “good cause” exists for not submitting these documents into
evidence prior to the issuance of the ALJ’s final decision on October 7, 2009
because she was not represented by counsel before the ALJ. Following the denial
decision, Attorney Michael Arnold took over York’s case and found what he believed
was extremely probative and relevant medical evidence from the aforementioned
sources which was submitted to the Appeals Council. However, the Appeals
Council denied review on December 9, 2010 and this appeal was taken to federal
court. (Tr. 1-3).
The record reveals that at the administrative hearing, the ALJ carefully
explained the benefits of being represented by an attorney to York. (Tr. 21-22).
She elected to proceed without legal representation. (Tr. 22). The plaintiff indicated
she had previously signed a waiver of representation. (Id.). When a claimant is not
represented by legal counsel, the ALJ has a heightened duty to fully and fairly
develop the record. Lashley v. Secretary of Health and Human Services, 708 F.2d
1048 (6th Cir. 1983). Therefore, to establish “good cause” for failure to submit
these medical documents prior to the issuance of the ALJ’s final decision on
October 7, 2009, York must show that the ALJ breached this duty to fully and fairly
develop the record.
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York’s main argument concerns the information provided by Dr. Noelker. On
March 2, 2010, the doctor noted a diagnosis of an anxiety disorder and a pain
disorder affecting both psychological factors and her general medical condition. (Tr.
469). Dr. Noelker indicated that the plaintiff would be severely impaired in several
areas of functioning due to her mental condition such as in relating to others
including co-workers, supervisors, and the public and tolerating the stress of daily
work activity. (Id.). In June, 2010, the doctor indicated that her condition had
deteriorated and decompensated since the previous March. (Tr. 470). In April of
2011, the physician completed a mental assessment form identifying extremely
severe mental limitations and noted that she had been totally disabled since June
1, 2006.2 (Docket Entry No. 9, Attachment 1).
York asserts that this new information from her treating mental health source
supports her claim that she was totally disabled prior to October 9, 2009. However,
the court notes that the Transcript Index does not indicate that Dr. Noelker saw the
plaintiff during the relevant time period. The letters from the doctor submitted to the
Appeals Council and court also do not indicate a treating relationship during the
pertinent time period. (Tr. 469-470). With regard to developing the record, the ALJ
cannot be faulted for failure to obtain evidence from a physician whom the claimant
had not yet seen. The record before the ALJ did include a consultative mental
2
June 1, 2006 was the claimant’s alleged onset date of disability. (Tr. 10).
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health examination from Dr. Kevin Eggerman who made only modest findings with
regard to her mental status. (Tr. 317-325). This examination indicates that the
administration made an effort to develop evidence with regard to the plaintiff’s
mental condition. Psychologists Ilze Sillers (Tr. 335) and Edward Stodola (Tr. 371)
also reviewed the record and opined that it did not reveal the existence of a “severe”
mental impairment. Therefore, since the record with regard to the claimant’s mental
status was fully and fairly developed, she was not prejudiced by being
unrepresented by legal counsel and, so, “good cause” for failure to submit this
evidence in a timely fashion is not established.
The court also finds that the evidence from Dr. Noelker is not “material.” As
previously noted, the first information from the physician is dated March 2, 2010,
some five months after the ALJ’s final decision on October 9, 2009. This is more
than enough time for York’s mental condition to have deteriorated significantly. The
fact that Dr. Eggerman, who examined the plaintiff during the relevant time period,
and the medical reviewers all found no more than minor mental problems suggests
that significant mental deterioration occurred after October 9, 2009. Dr. Noelker
himself reported deterioration and decompensation between March, 2010 and June,
2010, well after the relevant time period. (Tr. 470). While Dr. Noelker indicated on
the April, 2011 assessment that the identified mental problems “related back” to the
alleged onset date of June 1, 2006, the doctor did not specifically indicate what
evidence he relied upon to reach this conclusion. In the absence of such evidence,
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the opinion appears speculative. Therefore, the court finds that “materiality” was
also not established.
The court also finds that no breach of the ALJ’s duty to fully and fairly
develop the record occurred with regard to the physical function assessment from
Dr. Mullen and, so, “good cause” does not exist for the failure to submit the
physician’s physical functional capacity assessment into the record. Dr. Mullen
completed an Attending Physician Statement which was before the ALJ. (Tr. 406408). The doctor restricted the plaintiff to less than a full range of sedentary level
work. (Tr. 407). These physical restrictions were essentially consistent with those
reported on the assessment submitted to the Appeals Council and court. (Tr. 407,
458-460).
Since the ALJ already had a statement from this treating source
concerning the claimant’s physical limitations, the undersigned sees no reason that
she should have sought another statement in order to fully and fairly develop the
record. Therefore, “good cause” is not established.
Dr. Mullen’s assessment would also not appear to be “material.” The form
is dated January 18, 2010, more than three months after the entry of the ALJ’s final
decision, and, so, outside the relevant time period. (Tr. 460). The doctor states that
”at present, Ms. York is totally and completely physically disabled.” (Id.). (Emphasis
added). Thus, the restrictions would not necessarily “relate back” to the earlier time
frame.
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The court finds no breach of the ALJ’s duty to develop the record with regard
to the physical assessment from Dr. Burns. The ALJ had the opportunity to review
extensive treating records from Dr. Burns. (Tr. 225-302). The current record does
not indicate that Dr. Burns treated the plaintiff after January, 2007. (Tr. 227). The
ALJ had access to a number of opinions concerning the plaintiff’s physical capacity
from other treating, examining and reviewing sources such as Dr. Mullen (Tr. 407),
Dr. Martin Fritzhand (Tr. 329), Dr. Robert Brown (Tr. 349-356) and Dr. Carlos
Hernandez (Tr. 385-392). Under these circumstances, the court sees no reason for
the ALJ to have obtained another assessment from Dr. Burns whose treating
relationship with the claimant appears to have been rather distant at the time of the
October, 2009 denial decision. Therefore, the undersigned does not find “good
cause” for the failure to submit this evidence in a timely fashion.
Dr. Burns’s assessment was dated January 26, 2010. (Tr. 465). This was
more than three months after the October 9, 2009 date of the ALJ’s final decision.
The included restrictions would not necessarily “relate back” to the pertinent time
frame. Therefore, the assessment is not “material.”
With regard to the assessment of Dr. Wood, the court notes that there is no
evidence in the Transcript or from York after the denial decision indicating that the
physician was a treating or examining source during the relevant time period.
Again, the ALJ could not be faulted for failing to obtain evidence from a physician
the plaintiff had not seen. Therefore, the ALJ did not breach her duty to fully and
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fairly develop the record with regard to Dr. Wood and the claimant has not
established “good cause” for failure to incorporate this document into the record in
a timely fashion.
Finally, Dr. Wood’s assessment was dated August 20, 2010. (Tr. 476). This
was more than 10 months after the ALJ’s final decision was issued in October of
2009 and, so, also does not necessarily “relate back” to the pertinent time frame.
Therefore, the court cannot find that it was “material.”
For the aforementioned reasons, the court must reject York’s motion for a
remand for the consideration of new evidence before the Commissioner. The
plaintiff will need to proceed with the filing of a summary judgment motion to
determine whether the ALJ’s final decision was supported by substantial evidence.
This the 11th day of May, 2011.
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