Overby v. Commissioner of Social Security
ORDER - That the 13 Report-Recommendation of Magistrate Judge Earl S. Hines filed April 4, 2013 is ACCEPTED in its entirety. That Plaintiff's request to remand this action and order that additional evidence be taken before the Commissioner is DENIED and the Commissioner's decision is AFFIRMED,. Signed by Chief Judge Gary L. Sharpe on 4/29/2013. (Attachments: # 1 Judge Hine's Report-Recommmendation) (jel, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
MATTHEW LEE OVERBY,
CAROLYN W. COLVIN,
Acting Commissioner of
CIVIL ACTION NO. 1:12-663
REPORT AND RECOMMENDATION
The Commissioner of Social Security (“Commissioner”) denied Matthew
Lee Overby’s application for disability insurance benefits under the Social
Security Act. In this action for judicial review under 42 U.S.C. § 405(g), the sole
issue is whether the court should remand the case and order additional evidence
to be taken before the Commissioner.
I. Procedural Background
On May 1, 2010, Overby protectively applied for disability insurance
benefits. He claimed disability beginning on July 18, 2009, due to a discogenic
and degenerative back disorder. (T. 16, 71).2 Following an evidentiary hearing,
Carolyn W. Colvin became the Acting Commissioner of Social Security
on February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, she therefore should be substituted for Michael J. Astrue as the
defendant in this suit. No further action need 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).
“T.” followed by a number refers to the page of the administrative
(Dkt. No. 8).
an administrative law judge, Mary Sparks (“ALJ Sparks”), denied Overby’s
application on July 25, 2011. (T. 16-24). After unsuccessfully requesting
Appeals Council review, Overby timely instituted this proceeding. (Dkt. No. 1).
II. Commissioner’s Decision
When adjudicating Overby’s claim, ALJ Sparks utilized a five-step
sequential evaluation procedure prescribed by regulation and approved by courts
as a fair and just way for determining disability applications in conformity with
the Social Security Act. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 153 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461 (1983)). A full
discussion of the Commissioner’s five-step process is contained in Christiana v.
Commissioner of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2
(N.D.N.Y. Mar. 19, 2008).
ALJ Sparks determined that Overby carried his Step 1 burden to show
that he has not engaged in substantial gainful activity since his alleged onset of
disability, and also met his Step 2 burden to show that he has a “severe”
impairment consisting of minimal diffuse spondylosis.3 (T. 18). At Step 3, ALJ
Sparks found that Overby did not prove that his impairment meets or equals a
presumptively disabling condition. Id.4
“Severe” is a term of art.
Under governing circuit law, "[a]
‘severe’ impairment is one that significantly limits an individual’s physical or
mental ability to do ‘basic work activities.’" Meadors v. Astrue, 370 Fed. App'x
179, 182 (2d Cir. 2010)(citing 20 C.F.R. §§ 404.1520(c), 416.920(c));
Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003).
20 C.F.R. Part 404, Subpart P, Appendix 1, lists impairments that the
Commissioner considers to be severe enough to prevent an individual from doing
any gainful activity, regardless of his or her age, education, or work
experience. 20 C.F.R. § 404.1525(a). The Commissioner’s regulation states that
“[i]f you have an impairment(s) which . . . is listed in appendix 1 or is equal
to a listed impairment(s), we will find you disabled without considering your
age, education, and work experience.” 20 C.F.R. § 404.1520(d).
Page 2 of 11
Given these initial findings, ALJ Sparks was required to next assess
Overby’s “residual functional capacity” before proceeding to remaining steps.5
In that respect, she found that Overby’s ability to perform work-related activities
is reduced by his impairment to the “sedentary” exertional level6 with several
additional limitations.7 (T. 19-22).
At Step 4, ALJ Sparks determined whether Overby’s impairments prevent
him from performing his past relevant work. Overby’s past relevant work
included occupations as a resident supervisor, warehouse worker, repairer of
manufactured homes, and cashier with stocking responsibilities. (T. 57-58).
Toward this end, ALJ Sparks obtained and relied up evidence from a vocational
expert, David Sypher (“VE Sypher”). ALJ Sparks posed a hypothetical question
that asked VE Sypher to state whether an individual with the same residual
functional capacity and limitations as ascribed to Overby could perform any of
his past relevant work. (T. 63). VE Sypher testified that an individual with
such restrictions can still perform work as a resident supervisor as that
This term refers to what claimants can still do in a work setting
despite their physical and/or mental limitations caused by their impairments and
any related symptoms, such as pain. See 20 C.F.R. § 404.1545; see also Melville
v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (defining RFC).
“Sedentary work” involves lifting no more than ten pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met. See 20 C.F.R. § 404.1567(a); SSR 83-10, TITLES
II AND XVI: DETERMINING CAPABILITY TO DO OTHER WORK–THE MEDICAL-VOCATIONAL RULES OF APPENDIX
2, 1983 WL 31251, at **5-6 (SSA 1983).
The additional limitations were:(1) occasionally lift and/or carry
ten pounds; (2) frequently lift and/or carry five pounds; (3) stand and/or walk
for four hours total in an eight-hour workday but no longer than forty-five
minutes at one time; (4) sit for four hours total in an eight-hour workday but
no longer than forty-five minutes at one time; (5) occasionally push/pull;
(6) never climb ladders, ropes or scaffolds; (7) frequently balance; and
occasionally stoop crouch, kneel or crawl. (T. 19).
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occupation is defined in the Dictionary of Occupational Titles (“DOT”) Code
ALJ Sparks accepted this testimony as credible; found that Overby can
still perform past relevant work as resident supervisor; and, accordingly,
concluded that he was not disabled. (T. 23). Overby’s application for benefits
was, therefore, denied. (T. 24).
III. Request For Remand
Overby does not challenge ALJ Sparks’s findings and conclusions.
Instead, Overby proffers additional evidence – submitted for the first time to
this court – and requests remand for consideration of that evidence:
The decision should be remanded based upon the new and material
evidence attached hereto as this evidence warrants changing the
Administrative Law Judge’s decision.
(Dkt. No. 10, p. 1).
The additional evidence in question relates to medical treatment for low
back pain during the period between January and March, 2010. It consists of
treatment notes pertaining to eleven visits with Dr. William J. Kowalski, D.C.,
between January 24, 2010, and March 12, 2010. It also contains a physical
capabilities evaluation by Dr. Kowalski dated March 12, 2010. (See Attachment
to Dkt. No. 10, at pp. 1-7). Overby argues that this evidence is contraindicative
of his residual functional capacity as assessed by ALJ Sparks.
warrants remand. (Dkt. No. 10, p. 3).
Dictionary of Occupational Titles, Fourth Ed., Code 187.167-186,
1991 WL 671408 (G.P.O. 1991).
Page 4 of 11
In response, the Commissioner contends that the now-proffered evidence
does not warrant remand because it does not meet statutory requirements for
remand. (Dkt. No. 11, at pp. 6-10. Specifically, the Commissioner argues that
the evidence is not “new;” it is not “material;” and no “good cause” exists for
failing to incorporate such evidence into the record in the prior administrative
IV. Governing Legal Principles
Judicial review of final decisions of the Commissioner is authorized in 42
U.S.C. § 405(g). The sixth sentence of that section provides:
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; . . . .
42 U.S.C. § 405(g). To satisfy this statutory requirement, one must show that
newly-proffered evidence is:
(1) “new” and not merely cumulative of what is already in
the record, and that it is (2) material, that is, both relevant
to the claimant’s condition during the time period for which
benefits were denied and probative. The concept of
materiality requires, in addition, a reasonable possibility
that the new evidence would have influenced the
[Commissioner] to decide claimant’s application differently.
Finally, a claimant must show (3) good cause for failure to
present the evidence earlier.
Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal citations omitted);
see also Mulrain v. Commissioner of Soc. Sec., 431 Fed. App’x 38, 39 (2d Cir.
2011); Lisa v. Secretary of Health & Human Servs., 940 F.2d 40, 43 (2d Cir.
Page 5 of 11
As one court put it facilely, to obtain a sentence six remand for taking of
additional evidence, a claimant must satisfy a “conjunctive threefold
requirement.” Cruz-Santos v. Callahan, No. Civ. A. 97-439, 1998 WL 175936,
at *2 (D. N.J. Apr. 7, 1998). In other words, remand for taking of additional
evidence is required only when a claimant satisfies all three criteria. See id; see
generally Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (three-pronged
requirement for sentence six remand).
Thus, even when newly-proffered
evidence passes muster under the first two prongs (“new” and “material”), but
fails under the third prong (“good cause”), reviewing courts do not require the
Commissioner to consider the new evidence on remand.9
V. Application and Analysis
The most significant aspect of the now-proffered evidence is Dr. Kowalski’s
physical capabilities evaluation dated March 12, 2010. Therein, Dr. Kowalski
opined that Overby is capable of only working four hours per day, three days per
week. And, even then, he can only occasionally (a) lift and/or carry twenty
pounds, (b) push and/or pull ten pounds, and (c) climb, bend, stoop, kneel,
crouch, crawl and reach. Dr, Kowalski opined that Overby can frequently
perform fine manipulation, grasping, feeling, and keying; but is never capable
See e.g., Brown v. Astrue, No. 3:11–cv–331, 2012 WL 3112367, at *5
(S.D. Ohio July 31, 2012) (even if the Court assumes, arguendo, that claimant’s
medical evidence is new and material, his request for a Sentence Six remand to
consider doctor’s evaluation should nonetheless be denied because claimant failed
to establish the necessary good cause); Rogers v. Barnhart, 204 F. Supp. 2d 885,
892 (W.D. N.C. 2002) (new and material evidence did not warrant remand where
evidence was developed prior to the Appeals Council’s decision but claimant made
no attempt to submit any of the records); Montgomery v. Barnhart, No. CIV.00-2250
(JRT/JMM), 2002 WL 511461, at *8 (D. Minn. Mar. 31, 2002) (even if claimant could
show that the evidence was material, claimant failed to establish good cause for
the delay in producing the evidence).
Page 6 of 11
of balancing, overhead lifting or working on ladders. (See Attachment to Dkt.
No. 10, at p. 1).
Colorable Showing of New and Material Evidence
Although the Commissioner forcefully disagrees, Overby can mount
colorable arguments that this evidence is new and material. While the existing
record contains extensive medical evidence concerning Overby’s low back
condition during the same period of time, including some evidence from Dr.
Kowalski,10 the now-proffered evidence is not duplicative, and it was not made
available to ALJ Sparks at the time she made her decision.11 It is relevant and
probative. Finally, its import is such that were the Commissioner to accept it as
credible and persuasive, there is a reasonable possibility that it would influence
the Commissioner to decide Overby’s application differently.12 Stated more
The record contains examinations and treatment pertaining to Overby's
low back pain from the period between October 2009 and April 2010. (T. 200-02,
Additionally, the record contains orthopedic evaluations
completed for Workers’ Compensation dated October 2009 and May 2010. (T. 232-36,
The record even contains a January 25, 2010, statement from Dr.
Kowalski opining that Overby could return to work as of March 1, 2010.
But see Ferguson v. Commissioner of Soc. Sec., 628 F.3d 269, 276 (6th
Cir. 2010)(evidence is new only if it was not in existence or available to the
claimant at the time of the administrative proceeding).
The Commissioner’s brief, when arguing that the proffered evidence
is not material, raises an entirely plausible argument that if Overby’s
additional evidence is taken on remand, an ALJ will not accept it as more
probative than existing evidence because Dr. Kowalski, a chiropractor, is not an
“acceptable medical source” within the meaning of 20 C.F.R. § 404.1513(a). Hence,
there is no reasonable possibility that Overby’s new evidence would influence an
ALJ to decide Overby’s case differently.
Chiropractors are “other sources” whose evidence routinely is
received to show severity of an impairment and how it affects an individual's
ability to work. See 20 C.F.R. § 404.1513(d)(1); SSR 06–03p, Titles II and XVI:
CONSIDERING OPINIONS AND OTHER EVIDENCE FROM SOURCES WHO ARE NOT "ACCEPTABLE MEDICAL SOURCES" IN
DISABILITY CLAIMS, 2006 WL 2329939, at *3 (SSA Aug. 9, 2006). If this action were
remanded, the issue would not be whether Overby’s additional evidence is
admissible, but rather the weight, if any, it might merit. A reviewing court
would overstep its authority to usurp the Commissioner’s prerogative to decide
which witnesses to believe and the weight to be given their testimony.
Page 7 of 11
precisely, there is a reasonable possibility that a person who can work only four
hours a day, no more than three days a week, would be found disabled. This is
because residual functional capacity is premised on one’s ability to do sustained
work activities in an ordinary work setting on a regular and continuing basis,
defined as 8 hours a day, for 5 days a week, or an equivalent work schedule. See
20 C.F.R. § 1545(b), (c); see also 96-SSR 8p, TITLE II
RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, 61 Fed. Reg. 34474, 1996 WL
374184, at *2 (S.S.A. July 2, 1996).
The court need not, however, resolve the parties’ disputes as to whether
the now-proffered evidence is new (i.e., non-cumulative) and material. As the
next section demonstrates, Overby’s proffered evidence clearly does not meet the
third prong of the Tirado test, even if it satisfies the first two parts.
No Showing of Good Cause
Congress amended the sixth sentence of Section 405(g) in 1980, and, in
so doing made it “unmistakably clear that it intended to limit the power of
district courts to order remands for ‘new evidence’ in Social Security cases.” See
Melkonyan v. Sullivan, 501 U.S. 89, 100-01 (1991). It added requirements that
remands for the purpose of taking new evidence be limited to cases where there
is new, material evidence, and good cause for failure to incorporate it into the
record in a prior proceeding. Id. (quoting S.Rep. No. 96–408, pp. 58–59 (1979);
see also H.R.Rep. No. 96–100, p. 13 (1979), U.S.Code Cong. & Admin.News 1980,
pp. 1277, 1336–1337. Congress thus reaffirmed and strengthened its intent that
decisions of the Commissioner be final except in limited circumstances. See
Firpo v. Chater, 100 F.3d 943, 1996 WL 49258, at *3 (2d Cir. 1996) (“[c]oncerns
for finality dictate that claimants be given a single opportunity to prove their
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entitlement to benefits for a particular period”); Tirado, 842 F.2d at 596
(“claimants ordinarily should have but one opportunity to prove entitlement to
benefits, otherwise disability administrative proceedings would be an unending
merry-go-round with no finality to administrative and judicial determinations”).
A plaintiff seeking judicial review might adequately explain failure to
incorporate proffered evidence into an original administrative record in any
number of ways. A few obvious examples would be (1) if the evidence were not
in existence or available to a claimant at the time of the administrative
proceeding, (2) if a claimant were not aware of it, not because of carelessness,
inattention or willful disregard, but because of some unexpected or unavoidable
hindrance or accident, or (3) if mental incompetence or other dire personal
circumstances placed a claimant in no position to present the evidence.13
Here, however, Overby makes no effort to provide any explanation.
Instead, Overby’s current counsel merely states that an explanation as to why
this evidence was not submitted to ALJ Sparks prior to her hearing decision or
even to the Appeals Council “cannot be given as our representation did not begin
until 3/28/12, after the Appeals Council denial.” (Dkt. No. 10, at pp. 3-4)
The additional treatment notes of Dr. Kowalski and his physical capacity
evaluation all were completed more than a year before the administrative
hearing and ALJ Sparks’s decision. Overby and his counsel had almost two
years to present this evidence to the Appeals Council, which did not issue its
decision until February 2012. (T. 1-8). Neither Overby nor his former attorney
See, e.g., Munford v. Apfel, No. 97 CIV. 5270 (HB), 1998 WL 214782,
at *6 (S.D.N.Y. Apr. 30, 1998), opinion vacated on reconsideration, 1998 WL
684836 (S.D.N.Y. Sept. 30, 1998); Geracitano v. Callahan, 979 F. Supp. 952,
958-59 (W.D.N.Y. 1997).
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submitted the records to ALJ Sparks14 or to the Appeals Council despite there
being ample time to do so. No good cause for failing to incorporate the proffered
evidence into the administrative record at the time of the administrative
proceeding can be discerned from these plain facts.
Viewed most favorably to Overby, there is an implicit suggestion that
Overby should be excused from failing to present the evidence at the
administrative hearing because he relied on care and vigilance of his former
counsel to present proper evidence at the proper time. Such may well have been
the case here, but, standing alone, a previous attorney’s omissions do not
establish good cause to obtain a Sixth Sentence remand.15 By the same token,
mere diligence and competent representation by a successor counsel
automatically does not cure or excuse earlier defaults. To hold otherwise, would
invite mischief in the form of unsanctioned back door appeals that undermine
Congress’s intent to promote finality when enacting § 405(g).16
Because Overby offers no other explanation as to why the now-proffered
records were not timely submitted during the administrative proceedings, he
At the administrative evidentiary hearing, Overby’s former counsel
responded affirmatively when ALJ Sparks asked Overby’s counsel whether he had
reviewed the record and whether he considered it to be complete. (T. 31).
See Taylor v. Commissioner of Soc. Sec., 43 Fed. App’x 941, 943 (6th
Cir. 2002) (“[T]here is absolutely no statutory or decisional authority for [the
claimant’s] unstated, but unmistakable, premise that the alleged incompetence of
[the claimant’s] first attorney constitutes “good cause” in this context”);
Brown, 2012 WL 3112367, at *5 (court rejected claimant’s contention that “good
cause” exists for remand because his prior counsel failed to take the necessary
action to timely obtain physician’s medical opinion and include it in the record
before the ALJ’s decision); Cruz-Santos, 1998 WL 175936, at *4 (claimant’s change
of counsel did not constitute “good cause” warranting remand, for failing to
incorporate at the ALJ hearing the evidence proffered in his remand motion).
The good cause requirement was designed to prevent claimants from
seeking “after-acquired evidence, and then us[ing] such evidence as an
unsanctioned ‘back-door’ means of appeal.” Milano v. Bowen, 809 F.2d 763, 767
(11th Cir. 1987) (quoting Szubak v. Secretary of Health & Human Servs., 745 F.2d
831, 834 (3d Cir. 1984)).
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fails to carry his burden to show good cause. Overby’s proposed additional
evidence, therefore, fails to satisfy the statutory requirement of good cause as set
forth in 42 U.S.C. § 405(g). A sentence-six remand is unwarranted. See Schaal
v. Apfel, 134 F.3d 496, 506 (2d Cir. 1998). No good cause is shown for failing to
incorporate the proffered evidence into the administrative record at the time of
the administrative proceeding.
Plaintiff’s request to remand this action and order that additional evidence
be taken before the Commissioner should be DENIED. The Commissioner’s
decision should be AFFIRMED.
Parties have fourteen (14) days to file specific, written objections to the
Report and Recommendation. Such objections shall be filed with the Clerk of the
FAILURE TO OBJECT TO THE REPORT, OR TO REQUEST
AN EXTENSION OF TIME TO FILE OBJECTIONS, WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Graham v. City of New York, 443 Fed.
App’x 657, 658 (2d Cir. 2011); FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir.
1995); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal
Rules of Civil Procedure, and NDNY Local Rule 72.1(c).
Signed on the
Earl S. Hines
United States Magistrate Judge
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