Smith v. Commissioner of Social Security
Filing
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ORDER - ORDERED that Magistrate Judge Earl S. Hines' March 18, 2014 18 Report and Recommendation is ADOPTED in its entirety; and it is further ORDERED that this action be remanded to the Commissioner for further consideration pursuant to sentence six of 42 U.S.C. § 405(g); and it is further ORDERED that the Clerk administratively close this case while the Commissioner is considering the new evidence, including the medical opinion of Dr. Yeager, on remand. Following remand, t he Commissioner shall file with this court the findings of fact and decision, and, if the Commissioners decision is not fully favorable to Smith, a transcript of the additional record and testimony upon which the Commissioners modification or affirma nce of the prior decision is based. The court shall retain jurisdiction to hear any further appeals of the Commissioner's determination. Signed by Chief Judge Gary L. Sharpe on 7/10/2014. (jel, ) (Main Document 21 replaced on 7/10/2014) (jel, ).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
CARL SMITH,
Plaintiff,
5:12-cv-1879
(GLS/ESH)
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Carl Smith
Pro Se
265 Embury Rd.
Rochester, New York 14625
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261
SERGEI ADEN
Special Assistant U.S. Attorney
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Carl Smith challenges defendant Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB), seeking
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) In a Report and
Recommendation (R&R) filed March 18, 2014, Magistrate Judge Earl S.
Hines recommended that the case be remanded for further administrative
proceedings pursuant to sentence six of 42 U.S.C. § 405(g). (Dkt. No. 18.)
Pending are the Commissioner’s objections to the R&R. (Dkt. No. 19.) For
the reasons that follow, the court adopts the R&R in its entirety.
II. Background1
On June 24, 2010, Smith filed an application for DIB under the Social
Security Act (“the Act”), alleging disability since October 15, 2009. (Tr. 2 at
61, 130-31.) After his application was denied, Smith requested a hearing
before an Administrative Law Judge (ALJ), which was held on August 16,
2011. (Id. at 34-60, 62-67, 69.) On August 31, 2011, the ALJ issued a
decision denying the requested benefits, which became the
Commissioner’s final determination upon the Social Security Administration
1
The court incorporates the factual recitations of the parties and Judge Hines. ( See
generally Dkt. Nos. 14, 15, 18.)
2
Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 12.)
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Appeals Council’s denial of review. (Id. at 8-10, 14-30.)
Smith commenced the present action by filing a complaint on
December 26, 2012, seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Hines
issued an R&R recommending that the Commissioner’s decision be
remanded for further proceedings. (See generally Dkt. No. 18.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
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judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
The Commissioner raises one specific objection to the R&R, which
the court will review de novo. The remainder of the R&R will be reviewed
for clear error.
A.
New Evidence
The Commissioner objects to Judge Hines’ conclusion that new
evidence, not previously available to the ALJ or Appeals Council, should be
considered at the agency level. (Dkt. No. 19 at 2-4.) According to the
Commissioner, a “sentence six” remand is not appropriate here, as the new
evidence is not material. (Id.)
As Judge Hines explained, upon judicial review of a denial of
benefits, a district court may remand a case to the Commissioner to
consider additional evidence that was not included as part of the original
administrative proceedings. (Dkt. No. 18 at 9-10); see 42 U.S.C. § 405(g)
(“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
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failure to incorporate such evidence into the record in a prior proceeding
. . . .”). This type of remand, commonly referred to as a “sentence six
remand,” is only appropriate if a claimant can show that the evidence is: (1)
new and not cumulative of what is already in the record; (2) material in that
it is relevant to the claimant’s condition during the time period for which
benefits were denied and there is a reasonable possibility that the new
evidence would have influenced the Commissioner to decide the disability
determination differently; and (3) good cause has been shown for failing to
present the evidence earlier. See Lisa v. Sec’y of Dep’t of Health and
Human Servs., 940 F.2d 40, 43 (2d Cir. 1991); Tirado v. Bowen, 842 F.2d
595, 597 (2d Cir. 1988).
In her decision, the ALJ found that Smith was under a disability, but
that a substance use disorder is a contributing factor material to the
determination of disability, and, therefore, Smith was not disabled under
the meaning of the Act and not entitled to benefits. (Tr. at 18-30); see 42
U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535(b)(2)(i). Specifically, the ALJ
noted that, if Smith stopped his substance use, he would be able to
perform a full range of work at all exertional levels, understand, carry out,
and remember simple instructions, and sustain attention for two hour
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segments of time. (Tr. at 22.) Further, without substance use, Smith would
be able to work in a low-contact setting and adapt as needed to routine
adjustments in such a work setting. (Id.) The ALJ based her decision on
the clinical findings of record as well as the opinion of non-examining
psychological consultant E. Kamin, who reported that “with continued
abstinence and sobriety [Smith] could meet the basic demands of unskilled
work in a low contact setting.” (Id. at 24-28, 300.)
In November 2012—after the ALJ rendered her decision and the
Appeals Council denied Smith’s request for review—treating psychiatrist
Eric MacMaster opined that, since August 2010, Smith has been markedly
restricted in his ability to interact appropriately with the public and
supervisors, as well as respond appropriately to usual work situations and
changes in a routine work setting. (Id. at 8-10.) Moreover, Dr. MacMaster
opined that Smith’s alcohol and substance abuse do not contribute to his
limitations. (Id. at 9.) Judge Hines found that this opinion evidence
requires remand because it is new, material, and the record reflects good
cause for Smith not having produced it earlier. (Dkt. No. 18 at 12-19.)
According to the Commissioner, however, Dr. MacMaster’s opinion does
not satisfy the materiality requirement of 42 U.S.C. § 405(g), because Dr.
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MacMaster did not treat Smith during the relevant time period, offers no
clinical findings to support his opinion, and the remainder of the record
“extensively” supports the ALJ’s conclusion that Smith’s substance abuse
was a contributing factor material to the determination of disability. (Dkt.
No. 19 at 2-4.)
“The concept of materiality requires, [among other things,] a
reasonable possibility that the new evidence would have influenced the
Secretary to decide claimant’s application differently.” Lisa, 940 F.2d at 43
(citation omitted). Notably, “[e]vidence developed after the ALJ’s decision
can be material if it ‘shed[s] light on the seriousness of the claimant’s
condition at the time of the ALJ’s decision.’” Mendez ex rel. E.V. v. Astrue,
No. 11-CV-4297, 2013 WL 1686485, at *10 (E.D.N.Y. Apr. 18, 2013)
(quoting Carballo ex rel. Cortes v. Apfel, 34 F. Supp. 2d 208, 223 (S.D.N.Y.
1999)). The Commissioner argues that Dr. MacMaster’s report does not
suggest that Smith’s condition was more serious than previously thought,
and does not “significantly depart” from the ALJ’s residual functional
capacity determination. (Dkt. No. 19 at 3-4.) However, as Judge Hines
pointed out, Dr. MacMaster’s opinion suggests that Smith’s limitations are
more severe than those found by Dr. Kamin, whose opinion the ALJ relied
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on, and is in direct contradiction to the ALJ’s conclusion that substance use
is a factor material to the determination of disability. (Dkt. No. 18 at 12-13.)
The ALJ concluded that, if Smith stopped using substances, he would have
mild or moderate difficulties in social functioning, and mild difficulties in
concentration, persistence, or pace. (Tr. at 21.) Dr. MacMaster, on the
other hand, opined that, irrespective of drug addiction and alcoholism,
Smith suffers marked limitations in these areas. (Id. at 9.)
The Commissioner also argues that Dr. MacMaster’s opinion would
not have changed the ALJ’s determination because he was not a treating
physician at the time of the ALJ’s determination, he does not specify “any
medical findings or explanations that shed light on [Smith’s] condition
during the relevant period,” and his opinion is in contradiction to the
contemporaneous evidence of record. (Dkt. No. 19 at 2-4.) However, the
fact that Dr. MacMaster was not a treating physician during the relevant
time period does not mean that his retrospective opinion should not be
given some, or even significant weight. 3 See Monette v. Astrue, 269 F.
App’x 109, 113 (2d Cir. 2008). In addition, the court notes that Smith
3
It appears that Dr. MacMaster replaced Smith’s former treating physician at some point
subsequent to the ALJ’s decision. (Dkt. No. 14 at 6-7.)
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submitted the opinion of his previous treating physician, referred to in the
record as “Dr. Yeager,” for consideration by the Appeals Council, but they
returned the evidence to Smith for use in a subsequent application for
disability benefits because it was “about a later time” than the ALJ’s
decision. (Tr. at 2.) Thus, this evidence is not contained in the record
before the court. Presumably, Dr. Yeager’s opinion supports Smith’s
allegations that his mental impairments, separate and apart from his drug
use and alcoholism, are disabling. (Dkt. No. 18 at 16-17.) Although Dr.
Yeager’s report is not available for this court to review, it appears that the
Appeals Council may have erred in failing to consider and weigh the
opinion due only to the fact that it was rendered two months after the ALJ’s
decision. (Tr. at 2;) see Flagg v. Colvin, No. 5:12-CV-0644, 2013 WL
4504454 at *5 (N.D.N.Y. Aug. 22, 2013) (rejecting the argument that the
Appeals Council may properly dismiss a physician’s opinion solely because
it was completed after the date of the ALJ’s decision.) In light of these two
treating physician opinions which have not been considered by the
Commissioner, and the nature of Smith’s longstanding mental impairments,
the court agrees with Judge Hines that remand is appropriate here.
B.
Remaining Findings and Conclusions
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Having addressed the Commissioner’s specific objection de novo,
and otherwise finding no clear error in the R&R, the court accepts and
adopts Judge Hines’ R&R in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ March 18, 2014
Report and Recommendation (Dkt. No. 18) is ADOPTED in its entirety; and
it is further
ORDERED that this action be remanded to the Commissioner for
further consideration pursuant to sentence six of 42 U.S.C. § 405(g); and it
is further
ORDERED that the Clerk administratively close this case while the
Commissioner is considering the new evidence, including the medical
opinion of Dr. Yeager, on remand. Following remand, the Commissioner
shall file with this court the findings of fact and decision, and, if the
Commissioner’s decision is not fully favorable to Smith, a transcript of the
additional record and testimony upon which the Commissioner’s
modification or affirmance of the prior decision is based. The court shall
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retain jurisdiction to hear any further appeals of the Commissioner’s
determination.
IT IS SO ORDERED.
July 10, 2014
Albany, New York
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