Sander v. Commissioner of Social Security

Filing 21

ORDER REJECTING IN PART AND ADOPTING IN PART 18 Report and Recommendation; finding that a remand pursuant to sentence six is not warranted; reversing and remanding pursuant to sentence four. Signed by Judge Michael R. Barrett on 3/13/13. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Darren C. Sander,
Plaintiff,
v.

Case No. 1:11cv673

Commissioner of Social Security

Judge Michael R. Barrett

Defendant.

ORDER
This matter is before the Court upon the Magistrate Judge=s January 2, 2013
Report and Recommendation (AR&R@) which recommends that the decision of the
Commissioner be affirmed and that Plaintiff’s alternative motion for consideration of new
evidence should be denied. (Doc. 18.)
Notice was given to the parties under 28 U.S.C. ' 636(b)(1)(c). Plaintiff filed
objections to the Magistrate Judge=s R&R. (Doc. 20.)
I.

BACKGROUND
The Magistrate Judge completed a comprehensive review of the record and the

same will not be repeated here. Plaintiff objects to the Magistrate Judge=s R&R on the
basis that (1) the Magistrate Judge concluded that the ALJ properly considered whether
Plaintiff met or equaled Listing 1.04; (2) the Magistrate Judge found that the ALJ’s
residual functional capacity (“RFC”) assessment is supported by substantial evidence; (3)
the Magistrate Judge found that there was sufficient evidence to support the ALJ’s
determination that there were a significant number of jobs in the national and regional

economy that Plaintiff could perform; and (4) the Magistrate Judge found that a
subsequent favorable decision awarding benefits did not warrant remand under sentence
six of 42 U.S.C. § 405(g).
For the most part, these objections repeat the arguments made by Plaintiff in the
Statement of Specific Errors. (Doc. 11).
II.

ANALYSIS
A.

Listing of impairments

At the third step of the five-step disability evaluation process, a claimant will be
found disabled if his or her impairment meets or equals one of the listings in the Listing of
Impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). Each listing specifies
“the objective medical and other findings needed to satisfy the criteria of that listing.” 20
C.F.R.. § 404.1525(c)(3). A claimant must satisfy all of the criteria to meet the listing.
Rabbers v. Comm'r Soc. Sec. Admin., 582 F.3d 647, 653 (6th Cir. 2009). “During the
first four steps, the claimant has the burden of proof; the burden shifts to the SSA only for
the fifth step.” Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 422-23 (6th Cir. 2008)
(citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.1997)). Therefore, the
claimant bears the burden of proving every element of the listing. King v. Sec'y Health &
Human Servs., 742 F.2d 968, 974 (6th Cir. 1986).
In his objections, Plaintiff cites to a consultative physical evaluation performed by
Dr. Ronald Bagner in 2008 to support his contention that he meets either Listing 1.04 or
11.08. (Tr. 334-337). Dr. Bagner observed that Plaintiff “ambulates with a slow and
cautious gait;” “ambulates with moderate difficulty, gets on and off the examining table
with moderate difficulty;” “marked spasticity in the musculature of the lower extremities;”

and “marked spasticity of the fingers and hand bilaterally.” (Tr. 334). 1
Plaintiff points out that the North Carolina Department of Health and Human
Services (“DHHS”) relied on the findings of Dr. Bagner to conclude that Plaintiff was
eligible for Medicaid.

A review of this decision, which was made a part of the

administrative record in this case, shows that the North Carolina DHHS employs the
Social Security Administration’s regulations when making its eligibility determination.
(Tr. 183) (“In order to be eligible for Aid to the Disabled-Medical Assistance, appellant
must be found disabled as defined by federal law set forth in 20 CFR 404 and 20 CFR
416, including Appendices 1 and 2.”). Applying the five-step analysis, the North Carolina
DHHS hearing officer found that Plaintiff met the requirements of Listing 1.04 and was
disabled under the regulations. (Tr. 184). In reaching this determination, the hearing
officer cited the evaluation of Dr. Bagner (Id.)
Plaintiff has called the Court’s attention to Judge Rose’s decision in Rothgeb v.
Astrue, 626 F.Supp.2d 797 (S.D. Ohio). Judge Rose recognized that the Social Security
regulations provide that the decision of another governmental agency is not binding on
the Commissioner. Id. at 809 (citing 20 C.F.R. § 404.1504.2). However, Judge Rose
explained that “[w]hile there is no consensus among the circuits as to how much weight
another governmental agency's decision should receive, all circuits at minimum require

1

The ALJ’s written decision included a discussion of Dr. Bagner’s findings. (Tr. 18).

2

This regulation provides:

A decision by any nongovernmental agency or any other governmental agency
about whether you are disabled or blind is based on its rules and is not our decision
about whether you are disabled or blind. We must make a disability or blindness
determination based on social security law. Therefore, a determination made by
another agency that you are disabled or blind is not binding on us.

the ALJ to consider the other agency's decision.” Id. Accord Shumaker v. Comm'r of
Soc. Sec., 1:11 CV 2801, 2013 WL 441060 *14-15 (N.D. Ohio Jan. 15, 2013) (collecting
cases from other federal circuits and district courts from within the Sixth Circuit).
In this instance, the ALJ did not include any discussion of the decision of the North
Carolina DHHS. This error has not been found to be harmless. Id. at *15 (“The ALJ's
failure to acknowledge the VA determinations is not harmless, and even if his ultimate
decision does not change, the ALJ must articulate why.”).
B.

Remand

Under 42 U.S.C. § 405(g), a court has the authority to remand a case for further
administrative proceedings under either “sentence four” or “sentence six” of the statute.
Under sentence four, the court has the “power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g). Remand under sentence four is appropriate if the Commissioner
applied an erroneous principle of law, failed to consider certain evidence, failed to
consider the combined effect of impairments, or failed to make a credibility finding.
Faucher v. Secretary of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).
Under sentence six, remand is appropriate “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). However, the fact
that another party has met the prerequisites for a different sort of remand does not satisfy
the statutory requirements of both “good cause” and “new and material evidence”
necessary for a sentence six remand for the consideration of additional evidence. Hollon

ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 485 (6th Cir. 2006).
The Court concludes that a sentence four remand is warranted to permit
consideration of the finding of disability by the North Carolina DHHS. However, the
Court finds that the Magistrate Judge was correct in concluding that a sentence six
remand is not warranted.

Plaintiff seeks a remand pursuant to sentence six for

consideration of a May 2012 decision by the Commissioner awarding him benefits. (See
Doc. 15, at 5). The Sixth Circuit has instructed that “[a] subsequent favorable decision
itself, as opposed to the evidence supporting the subsequent decision, does not
constitute new and material evidence under § 405(g).” Allen v. Comm'r of Soc. Sec., 561
F.3d 646, 653 (6th Cir. 2009). The Magistrate Judge found that the exhibits related to
this award of benefits, including an April 2012 consultative physical examination by Dr.
Richard Sheridan, were not “material” because the evidence was not probative on the
question of Plaintiff’s condition at the time of the ALJ’s decision.

Therefore, the

Magistrate Judge concluded that remand pursuant to sentence six was not warranted.
The Court finds no error in this conclusion. Dr. Sheridan examined Plaintiff on
April 23, 2012. (Doc. 15, at 7). The ALJ’s determination in this case covered the period
of time from January 1, 2006 through the date of decision in March 2011. As such, Dr.
Sheridan’s exam was over one year after the relevant time period. The other exhibit
submitted by Plaintiff is the Ohio Bureau of Disability Determination’s reevaluation of
Plaintiff’s current SSI application. (Id. at 14). This exhibit includes a finding by Dr.
Lynne Torello that Plaintiff meets Listing 11.08 and discusses additional mental
limitations. (Id. at 22). However, the opinion evidence used to reach this conclusion was
dated January 23, 2012 and April 23, 2012. The Court finds that this evidence was not

“material” to making a decision regarding disability for that period of time.
III.

CONCLUSION
Based on the foregoing, the Magistrate Judge=s January 2, 2013 R&R (Doc. 18) is

REJECTED in PART and ADOPTED IN PART. The R&R is adopted to the extent that
the Magistrate Judge found that remand pursuant to sentence six is not warranted.
However, the Court REVERSES AND REMANDS this matter pursuant to sentence four
of 42 U.S.C. § 405(g) for a determination of what weight, if any, is to be given to the
decision of the North Carolina DHHS which found that Plaintiff was disabled.
Accordingly, this case is CLOSED and TERMINATED from the docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court