Schalk v. Commissioner Social Security Administration

Filing 16

Opinion and Order. Plaintiffs motion for remand pursuant to sentence six of 42U.S.C. § 405(g) 12 is DENIED. Signed on 6/30/2015 by Judge Robert E. Jones. (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ANTHONY J. SCHALK,
Plaintiff,

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

~~~~~~~~~~~~~~~~

)
)
)
)
)
)
)
)
)
)

3:14-CV-01495-JO

OPINION AND ORDER

JONES, J.
Plaintiff Anthony J. Schalk appealed the Commissioner's decision to deny his claim for
disability insurance benefits under Title II of the Social Security Act. He now moves the court to
remand his claim for further administrative proceedings pursuant to sentence six of 42 U.S.C. §
405(g). [Doc.# 12] The motion is denied for the following reasons.

BACKGROUND
Schalk claimed disability beginning June 30, 2007. Admin. R. 11. His insured status under
the Social Security Act expired on June 30, 2011, and he must show that he was disabled on or
before that date to prevail on his claim. 42 U.S.C. § 423(a)(l)(A). Tidwell v. Apfel, 161 F.3d 599,
601 (9th Cir. 1998). Accordingly, the relevant period for this appeal runs from June 2007 through
June 2011.

-1-

OPINION & ORDER

As required by the regulations, the Commissioner gathered and evaluated all of the evidence
Schalk identified to suppo1t his claim. The ALJ heard testimony from Schalk, his wife, a medical
expert, and a vocational expert. Adm in. R. 70-107. He then issued an adverse decision. Admin.

R. 113-122. The Appeals Council remanded for further evaluation ofSchalk's mental impairments.
Admin. R. 149-151. In September 2012, the ALJ obtaihed a consultative psychodiagnostic
assessment from Karen Bates-Smith, Ph.D., a clinical psychologist. Admin. R. 834-838. Dr. BatesSmith also completed a worksheet on which she rated the severity of Schalk' s limitations on several
work-related functions. Admin. R. 842-43. The ALJ then held a second administrative hearing at
which he took testimony from Schalk, his wife, and a vocational expe1t. Admin. R. 36-68.
Upon completion of this extensive process, the Commissioner issued a final decision in
March 2013. After receiving the adverse decision, Schalk obtained an additional psychological
evaluation from Leslie Caiter, Ph.D., who issued a report dated February 16, 2015. Schalk now
seeks a remand for the Commissioner to consider Dr. Carter's report.
LEGAL STANDARD FOR A SENTENCE SIX REMAND

Sentence six of 42 U.S.C. § 405(g) provides 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 ...
Accordingly, for the court to remand a case under sentence six, the claimant must show that new
evidence exists, that the new evidence is material, and that the claimant's failure to incorporate the
evidence into the record during the administrative proceedings is excusable for good cause.

-2-

OPINION & ORDER

DISCUSSION

I.

Good Cause Requirement

To demonstrate good cause for failing to present evidence during the Commissioner's
administrative proceedings, a claimant must show that the evidence was not available until later.

1'1fayes v. Jvfassanari, 276 F. 3d 453, 463 (9th Cir. 2001). "[A] claimant does not meet the good
cause requirement by merely obtaining a more favorable report once his or her claim has been
denied." }vfayes, 276 F.3d at 463. When a claimant fails to seek an evaluation report until after
receiving an adverse decision, "the claimant must also establish good cause for not having sought
the expeti's opinion earlier." Clem v. Sullivan, 894 F. 2d 328, 332 (9th Cir. 1990).
Here, Schalk sought additional evidence to supp01i his claim only after he was denied
benefits. In fact, Dr. Carter said Schalk requested the evaluation specifically to support his appeal
of the Commissioners's decision to deny his social security claim. [Doc# 12-2 at 1] Schalk does
not show that Dr. Cmier's opinion could not have been obtained earlier. He claims only that he did
not realize he should seek an evaluation from Dr. Carter until he changed lawyers.
I find nothing prevented Schalk from seeking a separate psychological evaluation or second
opinion during the administrative proceedings. He and his fonner counsel chose to rely on the
evidence obtained by the Commissioner until the Commissioner found that evidence insufficient to
sustain his claim. Schalk' s failure to pursue a second opinion does not establish good cause, nor is
it an e11'or that can be attributed to the Commissioner. See lvfayes, 276 F.3d at 463 (concluding the
ALJ is not responsible for diagnosing a problem that a claimant decides not to pursue). Accordingly,
Schalk has failed to meet the good cause requirement of sentence six.

-3-

OPINION & ORDER

II.

Materiality
Although unnecessmy in the absence of a showing of good cause, alternatively I find that

Schalk also failed to demonstrate materiality. A district cout1 may remand a case for consideration
of new evidence only if the new evidence is material. Clem, 894 F. 2d at 332. Evidence is material
when there is a reasonable possibility it would have changed the outcome of the Commissioner's
decision had it been before him. 1\!layes, 276 F. 3d at 462; Boaz v. Secretary ofHealth and Human

Services, 734 F. 2d 1378 (9th Cir. 1984).
In dete1mining whether Dr. Carter's opinion would have changed the ALJ' s view ofthe case,
I look to the ALJ' s evaluation of the evidence before him. Schalk concedes that the ALJ premised
his adverse decision in large pmt on the absence of objective medical findings to suppo11 his
subjective complaints. Pl.'s Br. 12; Admin. R. 17, 19, 23-24. Schalk argues that Dr. Cmter's
diagnosis of Somatoform Disorder could potentially explain why he has no objective findings to
supp011 his claim of extreme pain. Pl.' s Br. 12.
Dr. Cmter' s diagnosis and opinion regarding Schalk' s limitations did not occur until four
ye ms after the expiration of Schalk' s insured status. Dr. Ca1ter' s findings, therefore, cannot provide
objective findings or clinical observations from the relevant period of time. Accordingly, Dr.
Cmter' s rep011 would not change a primmy basis for the ALJ' s decision. In addition, as Schalk
points out, the ALJ gave diminished weight to the functional limitations in the opinions of Dr.
Thomas and Dr. Bates-Smith because they examined Schalk after his insured status expired and had
to rely on his subjective complaints about past limitations during the relevant period. Adm in. R. 19,
21-22. Medical opinions premised on subjective statements are no more reliable than the subjective
statements on which they rely. Tonapetyan v. Halter, 242 F. 3d 1144, 1149 (9th Cir. 2001); see also
-4-

OPINION & ORDER

Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989) (the Court disregarded a doctor's opinion because

it was based on the claimant's subjective statements, which the ALJ had already discounted).
The ALJ' s reasoning would apply with greater force to diminish the weight of Dr. Cmier' s
opinion. I find it unlikely that the ALJ would give greater weight to Dr. Cmier' s opinion, which was
based on an evaluation that took place four years after the relevant time, than he gave to the. opinion
of Dr. Thomas, who evaluated Schalk at about the time his insured status expired, or the opinion of
Dr. Bates-Smith, who evaluated him 15 months later. See }.farci v. Chafer, 93 F. 3d 540, 545 (9th
Cir .1996) ("the opinion of a psychiatrist who examines the claimant after the expiration of his
disability insured status, however, is entitled to less weight than the opinion of a psychiatrist who
completed a contemporaneous exam").
Finally, Dr. Carter's opinion does not account for the other evidence in the record upon
which the ALJ relied. For example, the ALJ found that "the claimant's daily activities show that he
was not as limited as alleged through the date last insured." Admin R. 17. For these reasons, I find
it is not reasonably likely Dr. Cmier' s opinion would have altered the outcome if it had been before
the ALJ. Accordingly, Schalk has failed to meet the materiality requirement of sentence six.
CONCLUSION
For the foregoing reasons, Plaintiffs motion for remand pursuant to sentence six of 42
U.S.C. § 405(g) [Doc# 12] is DENIED .
DATED this

-5-

.j«

30

day of June, 2015.

OPINION & ORDER