Pauley v. Commissioner of Social Security

Filing 14

NOTICE regarding previously issued REPORT AND RECOMMENDATIONS and Objections filed thereto. Signed by Magistrate Judge Michael J. Newman on 2/16/2017. (dm) Modified on 2/16/2017 (dm) to correct name of document filed.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
SHEILA M. PAULEY,
Case No. 3:16-cv-31
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

SUPPLEMENT TO THE REPORT AND RECOMMENDATION (DOC. 12)

This is a Social Security disability benefits appeal, which is before the Court on the
Commissioner’s objection to the undersigned’s Report and Recommendation that this case be
remanded for consideration of new and material evidence under Sentence Six of 42 U.S.C.
§ 405(g). Doc. 12. In the objection, the Commissioner sets forth extensive arguments regarding
whether the evidence at issue is new and material, and whether Plaintiff sufficiently
demonstrated good cause for not submitting such evidence to the ALJ. Doc. 13; see also Lee v.
Comm’r of Soc. Sec., 529 F. App’x 706, 717 (6th Cir. 2013).
As noted in the undersigned’s Report and Recommendation -- despite specific arguments
presented by Plaintiff in her Statement of Errors -- the Commissioner, in the memorandum in
opposition, made “no argument as to whether (1) the evidence is new and material and (2)
whether good cause exists to excuse Plaintiff’s failure to present this evidence to the ALJ.” See
doc. 12 at PageID 878. Instead, the Commissioner’s sole argument on appeal regarding a
Sentence Six remand was the contention that Plaintiff waived any such request, an argument the

undersigned found unmeritorious -- a finding the Commissioner does not challenge in the
objection filed to the Report and Recommendation. Doc. 9 at PageID 860 n.3; see also doc. 13.
Accordingly, in the Report and Recommendation, the undersigned found the
Commissioner waived any argument regarding newness, materiality, or good cause and, as a
result, conceded the existence of the requirements needed for a Sentence Six remand. See doc.
12 at PageID 879; see also Murr v. United States, 200 F.3d 895, 902 (6th Cir. 2000) (stating that,
“while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district
court if timely objections are filed, absent compelling reasons, it does not allow parties to raise at
the district court stage new arguments or issues that were not presented to the magistrate
[judge]”) (citing United States v. Waters, 158 F.3d 933, 936 (6th Cir.1998); Marshall v. Chater,
75 F.3d 1421, 1426-27 (10th Cir. 1996); Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994);
Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.
1988)).

Thus, to clarify, the undersigned proceeded on the basis that the Commissioner

conceded the appropriateness of a Sentence Six remand in the absence of Plaintiff’s waiver of
such request.
Had the Court initially been provided with the detailed argument now presented for the
first time in the Commissioner’s objection, the undersigned would have addressed the merits of
such contentions in the Report and Recommendation. It is inappropriate to raise these arguments
for the first time in objections to such Report and Recommendation. See supra.

Date:

February 16, 2017

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

-2-