Boyer v. Commissioner of Social Security Administration

Filing 21

ORDER denying 20 MOTION Relief From Summary Judgment Under Rule 60(b)2. Signed by District Judge Max O. Cogburn, Jr on 9/24/2013. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00153-MOC
BOBBY BOYER,

)
)
Plaintiff,
)
)
Vs.
)
)
CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
)
)
Defendant.
)

ORDER

THIS MATTER is before the court on plaintiff’s “Motion for Relief from Summary
Judgment Under Rule 60(b)(2)” (#20), which was filed only three days after this court’s Order
(#18) was entered denying plaintiff’s Motion for Reconsideration of Order Denying Plaintiff[’]s
Relief From Judgment (#16).

Such motion is also labeled “Addendum,” which the court

considers to be an addendum to the previous Rule 60(b) motion.
The court has closely reviewed the Motion and Addendum as well as the attachments
thereto. Read in a light most favorable to plaintiff, it appears that he first wishes the court to
consider medical records he gathered from Carolina HealthCare System based on ER visits he
had in June and September of 2013, evidence which was developed well after the Commissioner
entered her final decision and this appeal was pending.
Taken in a light most favorable to plaintiff, he appears to contend that remand is
appropriate based on evidence which he contends is both new and material. The sixth sentence
of 42, United States Code, Section 405(g) provides:
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The court . . . may at any time order additional evidence to be taken before the
Secretary, 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 Secretary shall, after the case is remanded,
and after hearing such additional evidence if so ordered, modify or affirm his
findings of fact or his decision, or both, and shall file with the court any such
additional and modified findings of fact and decision, and a transcript of the
additional record and testimony upon which his action in modifying or affirming
was based.
Id. In Wilkins v. Secretary, Dep’t of Health & Human Servs., 953 F.2d 93 (4th Cir. 1991),1 the
Court of Appeals for the Fourth Circuit held that evidence is new if it “is not duplicative or
cumulative” and is material “if there is a reasonable possibility that the new evidence would have
changed the outcome.” Id., at 96. See also Borders v. Heckler, 777 F.2d 954, 955 (4th Cir.
1985).
While it appears that such evidence may well be new, it does not appear that such
evidence is “material” as there is not a reasonable possibility that had such evidence been
available to the ALJ there would have been a different outcome. For example, at page four of
the first set of medical records dating from the June 2013 ER visit, his physician noted in his
“Discharge Instructions” as follows: “3. Work: no restrictions.” (#20 at 4).

Further, the

September 2013 ER admission provided a differential diagnosis of “Diarrhea, gastroenteritis,
colitis, diverticulitis.” (#20 at 22). As to the September visit, the physician noted improvement
while on prescription medication, but that symptoms recurred once plaintiff stopped medication.
She re-prescribed the same mediation, made arrangements for a free two week filing of that

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While the appellate court in Wilkins was addressing whether the Appeals Council
properly addressed evidence which the claimant represented as new and material, the
undersigned finds the Wilkins definitions instructive and appropriate in the circumstances
presented by this case.
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prescription by the hospital, attempted to expedite paperwork to get financial clearance, and
recommended that plaintiff visit the free clinic. Id. at 22-23.
In Melkonyan v. Sullivan, 111 S. Ct. 2157, 2164 (1991), the Supreme Court discussed the
characteristics of a sentence six remand for new and material evidence, stating that in amending
the sixth sentence of Section 405(g), “Congress made it unmistakably clear” that it intended to
limit remands for “new evidence.” Id. The Court further held that Congress added the “good
cause” requirement to try to speed up the judicial process, “so that these cases would not just go
on and on.” Id.

Plaintiff bears the initial burden of production of evidence and the ultimate

burden of persuasion. Preston v. Heckler, 769 F.2d 988, 990 (4th Cir. 1985); Hall v. Harris, 658
F.2d 260, 264 (4th Cir. 1982). Evidence is not new within the meaning of this section if it is
duplicative or cumulative. Wilkins, 953 F.2d at 96. “Evidence is material if there is a reasonable
possibility that the new evidence would have changed the outcome.” Id.
While such evidence is new, review of the evidence submitted does not reveal a
reasonable probability that it would have changed the Commissioner’s decision. If anything,
such findings reinforce the ALJ’s initial holding that plaintiff is not disabled. The court will
deny this motion.
Next, review of the “Addendum” reveals that plaintiff has filed state court forms, which
are not acceptable in this court. (#20 at 26-31). Such filings do, however, indicate that plaintiff
wishes to file an appeal and that he does not have the funds to do so. See id. As it did in the
previous Order, the court will advise plaintiff again that if he disagrees with this decision and the
underlying Order and Judgment, his next step would be to file an appeal to the Fourth Circuit

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Court of Appeals. Such can be accomplished by filing a Notice of Appeal with the Clerk of this
Court. .
ORDER
IT IS, THEREFORE, ORDERED that Motion for Relief from Summary Judgment
Under Rule 60(b)(2)” (#20) is DENIED.
Advice of Appellate Rights
In accordance with Wilder v. Chairman of the Central Classification Bd., 926 F.2d 367,
371 (4th Cir.)("while not mandated, the preferable practice is to include a statement to all final
orders involving pro se litigants setting forth the litigants' appellate rights"), cert. denied, 502
U.S. 832 (1991), plaintiff is hereby advised of the right to appeal this decision to the Court of
Appeals of the Fourth Circuit in the manner described in Rule 3, Federal Rules of Appellate
Procedure, by filing a Notice of Appeal with the Clerk of this Court within the time prescribed in
Rule 4, Federal Rules of Appellate Procedure, which is 60 days from entry of this Order.
Fed.R.App.P. 4(B). Failure to file a Notice of Appeal within the time allowed requires the filing
of a motion for extension of time and a notice of appeal within the 30-day period after such time
for appeal. Fed. R. App. P. 4(a)(5). See United States ex rel. Leonard v. O'Leary, 788 F.2d
1238, 1240 (7th Cir. 1986).

Signed: September 24, 2013

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