Harrison v. Social Security

Filing 23

ORDER (1) Overruling Defendant's 21 Objection; (2) Adopting the Magistrate Judge's 20 Report and Recommendation; (3) Remanding Applications for Benefits for Further Proceedings and (4) Staying Action Pending Completion of Post-Remand Proceedings. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CAROLYN MARIE HARRISON,
Plaintiff,

Case No. 14-cv-12986
Hon. Matthew F. Leitman

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_________________________________/
ORDER (1) OVERRULING DEFENDANT’S OBJECTION (ECF #21); (2)
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (ECF #20); (3) REMANDING APPLICATIONS FOR
BENEFITS FOR FURTHER PROCEEDINGS AND (4) STAYING ACTION
PENDING COMPLETION OF POST-REMAND PROCEEDINGS
In this action, Plaintiff Carolyn Marie Harrison (“Harrison”) challenges the
denial of her applications for Social Security disability insurance benefits and
supplemental security income. On May 20, 2015, the assigned Magistrate Judge
issued a Report and Recommendation (the “R&R”) on the parties’ cross-motions
for summary judgment.

(See ECF #20.)

In the R&R, the Magistrate Judge

recommended that this Court (1) remand Harrison’s applications to Defendant the
Commissioner of Social Security (the “Commissioner”) for further review based
on new evidence, and (2) stay this action pending the completion of these postremand proceedings. (See id. at 1-2; Pg. ID 380-381.) The Commissioner filed a
timely objection to the R&R (“the “Objection”). (See ECF #21.) The Court has

now conducted a de novo review of the parts of the R&R to which the
Commissioner has objected.

For the reasons stated below, the Court

OVERRULES the Objection, ADOPTS the R&R as the Opinion of this Court,
REMANDS Harrison’s applications to the Commissioner for further proceedings
in accordance with sentence six of 42 U.S.C. § 405(g), and STAYS this action
pending completion of these post-remand proceedings.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In December 2011, Harrison filed applications for Social Security disability
insurance benefits and supplemental security income. (See ECF #13-5 at 5-20, Pg.
ID 151-166.)

Harrison alleged that she was disabled, and she claimed her

disability began in November 2009. (See id.) Harrison said she was unable to
work because, among other reasons, she suffered from chronic back and right
shoulder pain. (See ECF #13-6 at 6, Pg. ID 185.) The Commissioner initially
denied Harrison’s applications on March 9, 2012. (See ECF #13-4 at 2-9, Pg. ID
107-114.) Harrison then requested a hearing before an Administrative Law Judge
to review the Commissioner’s decision. (See id. at 10-11, Pg. ID 115-116.)
Harrison’s hearing was held on January 23, 2013, before Administrative
Law Judge Melvyn B. Kalt (the “ALJ”). At that hearing, the ALJ heard testimony
from both Harrison and a vocational expert. (See hearing transcript, ECF #13-2 at
28-46, Pg. ID 63-81.) Harrison told the ALJ about her medical conditions and
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explained why she believed she was unable to work. Relevant to the instant
Objection, Harrison told the ALJ that she was suffering from “constant pain” from
her neck down through her shoulders. (See id. at 34, Pg. ID 69.) Harrison also
complained of numbness in her hands and an inability to grip. (See id. at 32-33,
Pg. ID 67-68.) Harrison then told the ALJ that she hoped to have MRIs performed
on her neck and shoulder, and she was “waiting for the call” from her insurance
company approving her for the tests. (Id.) But Harrison also said that she did not
believe her “insurance company [was] going to pay for [the MRIs],” and she gave
no indication when or if the “call” would be coming. (Id.) The ALJ closed the
record at the end of the hearing and told Harrison that she would receive a written
decision in the mail after he reviewed the evidence and testimony. (See id. at 45,
Pg. ID 80.)
It appears that Harrison’s insurance carrier eventually did agree to pay for
the MRIs.

The MRIs were conducted on March 16, 2013, the results were

transcribed on March 17, 2013, and the reports were printed on March 26, 2013.
(See ECF #13-7 at 90-91, Pg. ID 316-317.) The MRIs showed, among other
things, that there was “mild left foraminal stenosis,” “possible impingement on the
ventral nerve root of the right C7 [vertebrae],” and “likely” impingement of the
“L5 [vertebrae] spinal nerve roots.” (Id.)

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On March 19, 2013, the ALJ determined that Harrison was not disabled –
and was thus not entitled to benefits – in a written decision (the “ALJ’s Decision”).
(See ECF #13-2 at 14-22, Pg. ID 49-57.) The ALJ determined that Harrrison
suffered from several “severe impairments,” including “degenerative changes of
the right shoulder,” and “spondylolisthesis” in her back (id. at 16, Pg. ID 51), but
he concluded that she was able to perform some available work and was therefore
not disabled. (See id. at 21-22, Pg. ID 56-57.) The ALJ was not aware when he
issued the ALJ’s Decision that Harrison had the MRIs or what the results of those
tests were.
Harrison thereafter requested that the Social Security Administration’s
Appeals Council review the ALJ’s Decision. (See ECF #13-2 at 7-10, Pg. ID 4245.)

Harrison included in her request the results of the MRIs that were not

previously presented to the ALJ. (See ECF #13-6 at 44, Pg. ID 223.) On May 27,
2013, the Appeals Council declined to review the ALJ’s Decision. (See ECF #13-2
at 2-4, Pg. ID 37-39.)
On July 30, 2014, Harrison filed this action challenging the denial of
benefits. (See Complaint, ECF #1.) Both Harrison and the Commissioner filed
cross-motions for summary judgment.

(See Harrison’s Motion, ECF #15;

Commissioner’s Motion, ECF #18.) The Magistrate Judge then issued his R&R.
As relevant to the Commissioner’s Objection, the Magistrate Judge recommended
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that the Court remand Harrison’s applications to the Commissioner so that an ALJ
could review the MRIs and determine if Harrison was entitled to benefits based
upon the results of the MRIs (when considered in conjunction with the other
evidence in the record). (See R&R at 12-13, Pg. ID 391-392.)
The Commissioner timely filed the Objection on June 1, 2015. (See ECF
#17.)

The Commissioner asserts that the Magistrate Judge erred when he

concluded that a remand was appropriate. (See id.)
GOVERNING LEGAL STANDARD
Where a party has objected to portions of a Magistrate Judge's Report and
Recommendation, the Court conducts a de novo review of those portions. See Fed.
R. Civ. P. 72(b); Lyons v. Comm’r of Soc. Sec., 351 F.Supp.2d 659, 661 (E.D.
Mich. 2004). In reviewing the findings of the ALJ, the Court is limited to
determining whether those findings are supported by substantial evidence and
made pursuant to proper legal standards. See 42 U.S.C. § 405(g) (“The findings of
the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive...”).
Where “substantial evidence does not support the [ALJ’s] decision, the court
can reverse the decision and immediately award benefits only if all essential
factual issues have been resolved and the record adequately establishes a plaintiff’s
entitlement to benefits.” Faucher v. Sec’y of Health & Hum. Servs., 17 F.3d 171,
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176 (6th Cir. 1994). Accordingly, “a court is obligated to remand for further
administrative proceedings if there are any unresolved essential factual issues.”
Meehleder v. Comm’r of Soc. Sec., 2012 WL 3154968, at *2 (E.D. Mich. Aug. 2,
2012) (citing Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994)).
ANALYSIS
As described above, the Magistrate Judge recommended that the Court
remand Harrison’s applications to the Commissioner for further review in light of
the MRIs. Such a remand is known as a “Sentence Six” remand because the sixth
sentence of the applicable statute, 42 U.S.C. § 405(g), states that the Court “may at
any time order additional evidence to be taken before the Commissioner of Social
Security, 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….” It is Harrison’s burden to prove that the requirements for
a Sentence Six remand are met. See Sizemore v. Sec. of Health and Human
Services, 865 F.2d 709, 711 (6th Cir. 1998). Thus, to be eligible for a Sentence Six
remand, Harrison must show that (1) there is “new” evidence not before reviewed
by the ALJ; (2) there was “good cause” for her failure to provide the evidence to
the ALJ; and (3) the evidence is “material.”

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In its Objection to the R&R, the Commissioner argues that the Magistrate
Judge erred when he concluded that Harrison met the “good cause” and “material”
requirements of a Sentence Six remand. The Court will now address each in turn.
A.

The “Good Cause” Requirement

The Commissioner first objects to the Magistrate Judge’s conclusion that
Harrison had “good cause” for not submitting the results of the MRIs to the ALJ.
(See ECF #21 at 5-8, Pg. ID 399-402.) “A claimant shows ‘good cause’ by
demonstrating a reasonable justification for the failure to acquire and present the
evidence for inclusion in the hearing before the ALJ.” Foster v. Halter, 279 F.3d
348, 357 (6th Cir. 2001).

The Court agrees with the Magistrate Judge that

Harrison has satisfied her burden to show “good cause.”
Indeed, it would be hard to imagine how Harrison would have been able to
“acquire and present” the results of the MRIs in the hearing before the ALJ under
the circumstances and timeline of her case. At the time of the hearing, Harrison
had no idea whether she would be able to obtain the MRIs. At some later time, she
obtained approval for the MRIs, but the tests did not take place until nearly two
months after the hearing, and the results were not printed and sent to Harrison until
after the ALJ determined she was not disabled and was not entitled to benefits.
The following chart presents this timeline of events:

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January 23, 2013

ALJ holds hearing and closes record

Some unknown time between
Jamuary 23, 2013 and March 16,
2013

Insurance carrier agrees to pay for MRIs

March 16, 2013

MRI examinations performed

March 17, 2013

MRI results transcribed

March 19, 2013

ALJ issues the ALJ Decision

March 26, 2013

MRI results printed and thereafter sent
to Harrison

Given Harrison’s uncertainty about whether she would be able to obtain the
MRIs and the medical professionals’ delay in providing the results to Harrison,
Harrison had good cause for not seeking to present the MRIs at the hearing.
The Commissioner argues that despite the timeline of events, Harrison
cannot show “good cause” because her counsel did not ask the ALJ to keep the
record open and delay making a decision until after Harrison had the MRIs. (See
Objection at 6-7, Pg. ID 401-402.) This argument is unavailing. First, this is not a
case where Harrison and her counsel “sandbagged” the ALJ, never mentioning the
MRIs only to have the tests performed after an unsuccessful hearing or decision.
In fact, Harrison specifically told the ALJ that she was wanted to have the MRIs.
(See ECF #13-2 at 34, Pg. ID 69.) Second, it is not at all clear that Harrison’s
counsel was unreasonable for failing to ask that the record be kept open. Harrison
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wanted to have the MRIs performed earlier, but at the time of the hearing, her
insurance company had not approved her to have the tests. Harrison had no
indication when, or if, such an approval would come. For all Harrison and her
counsel knew, asking that the record be held open for 30, 60, or even 90 days may
not have avoided the current circumstances in which Harrison did not receive the
results of her MRIs until after the ALJ closed the record and issued his ruling.
The cases the Commissioner relies upon to establish that Harrison has not
met her burden to show “good cause” are inapposite. In Bass v. McMahon, 499
F.3d 506 (6th Cir. 2007), the Sixth Circuit Court of Appeals held that a plaintiff
had not shown “good cause” for failing to submit certain evidence to an ALJ and
for failing to ask that the record be kept open following the hearing. See id. at 513.
But unlike here, the plaintiff in Bass did not “detail[] any obstacles that prevented
him from entering this evidence, all of which predate[d] the hearing before the
ALJ.” Id. In this case, Harrison explained to the ALJ that her insurance company
had not yet approved her for the MRIs – thus preventing Harrison from having the
evidence earlier – and the MRIs did not “predate[] the hearing.”
Likewise, in Curry v. Sec’y of Health and Human Services, 856 F.2d 193
(unpublished) (6th Cir. 1988), a plaintiff sought remand to allow the ALJ to
consider evidence that the plaintiff brought to the district court’s attention only
after a magistrate judge issued a report and recommendation in which the
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magistrate suggested that the denial of benefits be affirmed. See id. at *1. In this
case, Harrison submitted the evidence to the Appeals Council soon after she
received the results of the MRIs, and well before filing this action. There is no
evidence that Harrison held back the results of the MRIs just in case she received
an unfavorable decision from the ALJ, the Appeals Council, or the Magistrate
Judge.
Finally, in both Cline v. Comm’r of Soc. Sec., 96 F.3d 146 (6th Cir. 1996),
and Courter v. Comm’r of Soc. Sec., 479 Fed. App’x 713 (6th Cir. 2012), the Sixth
Circuit concluded that the respective plaintiffs could not show “good cause” for the
failure to present medical reports to an ALJ. But in both Cline and Courter, the
reports in question were produced by consultants hired by the plaintiffs’ attorneys
after the ALJs completed the hearings. See Cline, 96 F.3d at 149 Courter, 479
Fed. App’x at 725-726. The delay in submitting the additional evidence in Cline
and Courter thus had some connection to a faulty legal strategy. In sharp contrast,
Harrison’s treating physician ordered her to undergo the MRIs, and as explained
above, the tests could not have been scheduled earlier because Harrison was
awaiting approval from her insurance company. In sum, under the circumstances
that exist here, the Court agrees with the Magistrate Judge that Harrison had “good
cause” for failing to present the results of the MRIs to the ALJ.

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B.

The “Materiality” Requirement

The Commissioner also objects to the Magistrate Judge’s conclusion that
Harrison could satisfy the “materiality” requirement for a Sentence Six remand.
(See Objection at 8-9, Pg. ID 402-403.) “In order for [a plaintiff] to satisfy [his]
burden of proof as to materiality, he must demonstrate that there was a reasonable
probability that the [Commissioner] would have reached a different disposition of
the disability claim if presented with the new evidence.” Sizemore, 865 F.2d at
711.
The Magistrate Judge conceded that this was a “close[] call” (R&R at 12,
Pg. ID 391), but he determined that the results of the MRIs were material.
Specifically, the Magistrate Judge explained that:
The March 17, 2013 cervical spine MRI showing nerve
root impingement at C7 lends credence to [Harrison’s]
testimony of tingling and numbness of the elbow, wrist,
hand, and fingers; the inability to grip; and “constant”
right shoulder and neck pain. Admittedly, the newer
evidence does not directly contradict the finding that
[Harrison] could perform [certain] jobs [identified by the
vocational expert] [….] However, as stated by the
[vocational expert], the inability to grip for one third of
the work day (occasionally) would preclude [many of the
identified jobs]. At a minimum, the MRI of the cervical
spine supports [Harrison’s] claims of right upper
extremity radiculopathy, thereby casting doubt on the
finding that she is capable of “occasional” gripping or
other manipulative functions required to perform these
jobs. While the MRI does not amount to proof certain
that [Harrison] is disabled, it creates a reasonable
probability that upon review, the ALJ would reach a
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different disposition. Accordingly, a remand
consideration of the newer evidence is appropriate.

for

(Id. at 13, Pg. ID 392.)
The Court agrees with the Magistrate Judge that while this is a close call, the
balance tips in favor of Harrison and in favor of a Sentence Six remand. During
her hearing before the ALJ, Harrison testified about the “constant pain” in her
shoulder and her inability to grip. (See ECF #13-2 at 33-34, Pg. ID 68-69.) She
further described her “hands” and “back” as her biggest problems. (See id. at 36,
Pg. ID 71.) And the MRIs did show both a “possible impingement on the ventral
nerve root of the right C7 [vertebrae]” (ECF #13-7 at 316) and that a “foraminal
disc protrusion at L4-L5 [is] likely impinging the intradural segment of the left L5
spinal nerve roots.” (Id. at 317.) There is a reasonable probability that the ALJ
would have reached a different conclusion if he had had access to the MRIs before
issuing the ALJ’s Decision. The MRIs are therefore “material.” The Court will
thus give Harrison the opportunity to present the MRIs to an ALJ on remand.
CONCLUSION
For the reasons stated above, IT IS HERBY ORDERED that:
 The Magistrate Judge’s May 20, 2015, R&R (ECF #20) is ADOPTED as
the Opinion of the Court;
 The Commissioner’s June 1, 2015, Objection to the R&R (ECF #21) is
OVERRULED;
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 Harrison’s applications for benefits are REMANDED to the Commissioner
for further proceedings consistent with this Opinion; and
 This action is STAYED pending these post-remand proceedings.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 12, 2015
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 12, 2015, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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