Outlaw v. Colvin

Filing 32

ORDER adopting 30 Memorandum and Recommendations; granting 24 Motion for Judgment on the Pleadings; and denying 27 Motion for Judgment on the Pleadings - The court REMANDS this case to the Commissioner pursuant to sentence six of 42 U.S.C. § 405(g) for consideration of the Social Security Administration decision dated October 26, 2011. Following remand, the Commissioner must return to this Court to file any additional or modified findings and any transcript of additional record upon which the modification or affirmance of the prior decision is based, pursuant to sentence six of 42 U.S.C. § 405(g). Signed by District Judge Louise Wood Flanagan on 03/28/2013. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:11-CV-647-FL

GORDON OUTLAW,
Plaintiff,

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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ORDER

This matter comes before the court on the parties' cross motions for judgment on the
pleadings (DE 24, 27). 1 Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b), United States Magistrate Judge William A. Webb entered a memorandum and
recommendation ("M&R") (DE 30) which recommends that the court grant plaintiffs motion, deny
defendant's motion, and that defendant's final decision be vacated and remanded pursuant to
sentence six of 42 U.S.C. § 405(g) for further proceedings. Defendant timely filed objection to the
M&R. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court
agrees with the magistrate judge determination that the case must be remanded pursuant to sentence
six of 42 U.S.C. § 405(g), as set forth herein.

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Pursuant to Fed. R. Civ. P. 25(d), Carolyn W. Colvin, Acting Commissioner of Social Security, has been
named as defendant in this case in place of former Commissioner Michael J. Astrue.

BACKGROUND

On March 17, 2009, plaintiff filed an application for disability insurance benefits, alleging
a disability onset date ofMarch 13,2009. A hearing was held before an Administrative Law Judge
("ALJ"), who determined that plaintiff was not disabled in a decision dated September 10, 2010.
The Social Security Administration's Office of Hearings and Appeals ("Appeals Council") denied
plaintiffs request for review on September 16, 2011. Plaintiff filed his complaint in this court on
November 15,2011, seeking review ofthe final administrative decision.
DISCUSSION

I.

Standard of Review
The court has jurisdiction under 42 U.S.C. § 405(g) to review the Commissioner's final

decision denying benefits. The court must uphold the factual findings of the ALJ "if they are
supported by substantial evidence and were reached through application of the correct legal
standard." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). "Substantial evidence is ... such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389,401 (1971) (quotations omitted). The standard is met by "more
than a mere scintilla of evidence but ... less than a preponderance." Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966).
To assist it in its review of the Commissioner's denial of benefits, the court may "designate
a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and
recommendations for the disposition [of the motions for judgment on the pleadings]." See 28 U.S.C.

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§ 636(b)(l). The parties may object to the magistrate judge's findings and recommendations, and
the court "shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." Id. § 636(b)(1 )(C). Absent a specific and
timely filed objection, the court reviews only for "clear error," and need not give any explanation for
adopting the M&R. Diamond v. Colonial Life & Ace. Ins. Co., 416 P.3d 310, 315 (4th Cir. 2005);
Camby v. Davis, 718 P.2d 198,200 (4th Cir.1983). Upon careful review ofthe record, "the court
may accept, reject, or modifY, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(l)(C).
The ALJ's determination of eligibility for Social Security benefits involves a five-step
sequential evaluation process, which asks whether:
(1) the claimant is engaged in substantial gainful activity; (2) the claimant has a
medical impairment (or combination of impairments) that are severe; (3) the
claimant's medical impairment meets or exceeds the severity of one of the
impairments listed in [the regulations]; (4) the claimant can perform her past relevant
work; and (5) the claimant can perform other specified types of work.
Johnson v. Barnhart, 434 P.3d 650, 654 n.l (4th Cir. 2005) (citing 20 C.P.R. § 404.1520). The
burden of proof is on the claimant during the first four steps of the inquiry but shifts to the
Commissioner at the fifth step. Pass v. Chater, 65 P.3d 1200, 1203 (4th Cir. 1995).
In the instant matter, the ALJ performed the sequential evaluation. At step one, the ALJ
found that plaintiff had not engaged in substantial gainful activity since March 13, 2009. The ALJ
then found at step two that plaintiffhad two severe impairments: sleep apnea and arthritis. However,
at step three the ALJ further determined that these impairments were not sufficiently severe to meet
or medically equal one ofthe listed impairments in 20 C.P.R. Part 404, Subpart P, Appendix 1.

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Prior to proceeding to step four, the ALJ assessed plaintiffs residual functional capacity
("RFC") and found that plaintiff had the ability to perform a reduced range oflight work. The ALJ
further found that plaintiff was unable to perform her past relevant work. However, at step five,
based on testimony of a vocational expert, the ALJ concluded that jobs exist in significant numbers
in the national economy that plaintiff could perform. The ALJ therefore concluded that plaintiff had
not been under a disability, as defined in the Social Security Act, at any time from March 13, 2009,
through the date ofthe ALJ decision, September 10,2010.
II.

Analysis
Defendant objects to the magistrate judge's determination that the case must be remanded

because the Social Security Administration issued a decision on October 26, 2011, concluding that
plaintiffhad been disabled since September 11,2010. For the reasons stated below, the court agrees
with the determination by the magistrate judge that sentence six remand is required and overrules
defendant's objection. The court, however, orders remand on terms somewhat different than those
recommended by the magistrate judge.
Under sentence six of 42 U.S.C. § 405(g), remand is warranted "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[.]" "Evidence is material if there is a reasonable
possibility that the new evidence would have changed the outcome." Wilkins v. Secretary, Dep't of
Health and Human Services, 953 F.2d 93, 96 (4th Cir.l991). The new evidence must relate "to the
period on or before the date of the administrative law judge hearing decision." 20 C.P.R. §
404.970(b). The new evidence need not have existed during that period, but rather must be

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considered if it has any bearing upon whether the claimant was disabled during the relevant period
oftime. See Wooldridge v. Bowen, 816 F.2d 157, 160 (4th Cir.1987).
This court in prior decisions has remanded on the same basis presented here, where the Social
Security Administration finds the claimant disabled in a period commencing only one day after the
first ALJ's denial of disability. See Laney v. Astrue, 7:10-CV-174-FL, 2011 WL 6046312 *2
(E.D.N.C. Dec. 5, 2011); Smith v. Astrue, 5:10-CV-219-FL, 2011 WL 3905509 (E.D.N.C. Sept. 2,
2011). The court finds this same approach especially warranted here, given that the basis for the
subsequent decision is disability resulting from mental retardation, which is an impairment
characterized by manifestation prior to age 22. See DE 25-1, p. 7 ("claimant has mental retardation
initially manifested before age 22"); see also Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir.
I985) (mental retardation is "a lifelong condition"). Accordingly, the subsequent decision is
material because there is a reasonable possibility that it would have changed the outcome of the prior
ALJ determination, where it relates at least in part to the period before the prior ALJ determination.
See Wilkins, 953 F .2d at 96; 20 C.P.R.§ 404.970(b).
Furthermore, plaintiff had good cause for failing to incorporate the subsequent decision into
the record in the first proceeding, given that the subsequent decision issued on October 26, 20 II,
after the September 16, 20I1 date of the Appeals Council's denial of review in this case. See DE
25-1, pp. 1-8.
Defendant objects to the sentence six remand for several reasons. First, defendant argues that
the subsequent ALJ decision is not, by itself, "evidence," (Obj. 2-3), citing to a Sixth Circuit decision
in which the court concluded that "the mere existence of [a] subsequent decision in [plaintiffs]
favor, standing alone, cannot be evidence that can change the outcome ofhis proceeding." Allen v.

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Comm'r of Social Sec., 561 F.3d 646, 653 (6th Cir. 2009). This view, however, is inconsistent with
the Fourth Circuit's recent description of"another agency's disability determination as evidence of
a claimant's condition." Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 343 (4th Cir. 2012)
(emphasis added). The court described "all record evidence relevant to a disability determination"
as "including decisions by other agencies." Id. (emphasis added). Although the Fourth Circuit was
addressing subsequent decisions by other agencies, if a subsequent decision by another agency is
evidence, then it follows that a subsequent decision by the Social Security Administration itself also
is evidence. Accordingly, the court overrules defendant's first basis for objection.
Second, related to the first argument, defendant contends that there was not "good cause" to
consider the subsequent ALJ decision, because the evidence underlying the decision was available
at the time of the first decision. (Obj. 5). But, where the remand is based on the decision itself as
evidence, there is good cause for not raising that evidence previously, because the subsequent
decision was not made until after the Appeals Council affirmed the prior ALJ decision. Thus, the
court overrules defendant's second basis for objection.
Third, defendant argues that even if a subsequent decision is "evidence," it is not "material."
(Obj. 3-4). Defendant states "[i]t is difficult to see how a prospective award of benefits for a later
time period would change the outcome ofthe prior case here." (Obj. 4). But, as set forth in the
M&R and in this court's prior decisions, a subsequent decision finding disability commencing one
day after the prior denial of disability calls into question whether all relevant impairments properly
were considered in the prior determination. See M&R 6; Smith, 2011 WL 3905509 *3. Further,
the subsequent decision is especially relevant when one of the impairments that formed the basis for

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the subsequent decision is a "lifelong condition" that meets the criteria under Listing 12.05(C).
Branham, 775 F.2d at 1274. Accordingly, the court overrules defendant's third basis for objection.
Finally, defendant argues that the "substantial evidence" review standard in Social Security
cases allows seemingly inconsistent decisions to stand, and that under this standard the court should
uphold the first ALJ decision even if it is inconsistent with the subsequent ALJ decision. (Obj. 5).
This may be true as a general matter. But, the determination that a sentence six remand is required
is separate from the determination that substantial evidence supports the first ALJ decision.

In

particular, sentence four of§ 405(g) authorizes the court to enter "a judgment affirming, modifying,
or reversing the decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing." Sentence six, by contrast, provides in pertinent part 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; and the Commissioner of Social
Security shall, after the case is remanded, and after hearing such additional evidence
if so ordered, modify or affirm the Commissioner's findings of fact or the
Commissioner's decision, or both, and shall file with the court any such additional
and modified findings of fact and decision, and, in any case in which the
Commissioner has not made a decision fully favorable to the individual, a transcript
of the additional record and testimony upon which the Commissioner's action in
modifying or affirming was based."
42 U.S.C. 405(g) (emphasis added). As such, the court may order a sentence six remand prior to
reaching a determination as to whether the ALJ' s decision was supported by substantial evidence.
See Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991) (noting that on sentence six remand "[t]he
district court does not affirm, modify, or reverse the Secretary's decision; it does not rule in any way
as to the correctness of the administrative determination"). The Commissioner is free to make a
determination consistent with the first ALJ' s decision, if consideration of all the evidence still
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supports that conclusion. See 42 U.S.C. § 405(g). Accordingly, where a sentence six remand in this
case does not interfere with application of the substantial evidence standard, the court overrules
defendant's fourth basis for objection.
CONCLUSION
Based on the foregoing, the court ADOPTS the findings of the magistrate judge, GRANTS
plaintiffs motion for judgment on the pleadings (DE 24), DENIES defendant's motion for judgment
on the pleadings (DE 27), and REMANDS to the Commissioner pursuant to sentence six of 42
U.S.C. § 405(g) for consideration of the Social Security Administration decision dated October 26,
2011 (DE 25-1). Following remand, the Commissioner must return to this Court to file any
additional or modified findings and any transcript of additional record upon which the modification
or affirmance of the prior decision is based, pursuant to sentence six of 42 U.S.C. § 405(g).
SO ORDERED this the 28th day of March, 2013.

United States District Judge

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