Wiltshire v. Colvin

Filing 20

ORDER granting 14 Motion to Remand to Social Security Administration. Signed by Magistrate Judge S. Allan Alexander on 9/10/14. (bnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION

MELANIE HOOKS WILTSHIRE
vs.

PLAINTIFF
CIVIL ACTION NO. 4:13CV255-SAA

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

ORDER GRANTING MOTION TO REMAND
Plaintiff Melanie Hooks Wiltshire has filed suit under 42 U.S.C. § 405(g) for judicial
review of the decision of the Commissioner of Social Security denying her application for a
period of disability and disability insurance benefits (DIB) under Section 216(I) and 223 of the
Social Security Act. Docket 9, p. 110. The Commissioner moved to remand under the fourth
sentence of 42 U.S.C. § 405(g). Docket 14. Plaintiff objected to the motion, responded on the
merits and also has filed additional briefing as requested by the court. Because both parties have
consented to have a magistrate judge conduct all the proceedings in this case as provided in 28
U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying
final judgment.
The Commissioner’s Motion to Remand acknowledges that the record before the ALJ did
not contain certain evidence proffered at the Appeals Council stage, and the appeal should be
remanded so that the ALJ can “consider all evidence of record and reassess Plaintiff’s back pain
and residual functional capacity.” Docket 15, p. 2. Plaintiff objects to the requested remand and
asserts that the court should instead award benefits because her impairments meet the
requirement for a finding of disability pursuant to Listing 1.04A. However, review of the
additional briefing provided by plaintiff, makes clear that the evidence demonstrating that

plaintiff does in fact meet a listing is contained in documents that were not – but that the
Commissioner acknowledges should have been – made part of the official record on appeal.
Because these records are not part of the record filed in this court, the court may not consider
them in evaluating whether plaintiff’s impairments meet a listing.1 Remand is necessary for an
ALJ to properly include these records in the transcript and reevaluate plaintiff’s impairments and
residual functional capacity. The Commissioner’s Motion to Remand is therefore GRANTED.
SO ORDERED, this, the 10th day of September, 2014.

/s/ S. Allan Alexander
UNITED STATES MAGISTRATE JUDGE

1

Haywood v. Sullivan, 888 F.2d 1463, 1471(5th Cir. 1989) (“We do not issue factual
findings on new medical evidence. [I]t is not our job as an appellate court to examine new
evidentiary materials and find issues of fact. Thus, our review in this situation is limited to
determining whether to remand for the consideration of the newly presented evidence. Under 42
U.S.C. §405(g), which controls the scope of our review, we may remand to the Secretary 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 . . .”) (internal citations
omitted).
2