Barrett v. Commissioner of Social Security Administration

Filing 17

ORDER directing defendant to file a response to 10 MOTION to Admit New Evidence by 10/08/2014. Signed by Magistrate Judge Shiva V. Hodges on 09/17/2014. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
John D. Barrett, Sr.,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:14-2398-SVH

ORDER

This matter is before the court on Plaintiff’s motion to admit new evidence filed

on June 26, 2014. [Entry #10]. Plaintiff contends that the new evidence pertains to the
period at issue, but was not submitted to the Appeals Council or to the Administrative
Law Judge. [Entry #10-1 at 2]. The Commissioner was directed to file a response by
July 14, 2014, but failed to do so. [Entry #10].
“Reviewing courts are restricted to the administrative record in performing their
limited function of determining whether the Secretary’s decision is supported by
substantial evidence.” Huckabee v. Richardson, 468 F.2d 1380, 1381 (4th Cir. 1972).
“In determining whether the ALJ’s decision is supported by substantial evidence, a
district court cannot consider evidence which was not presented to the ALJ.” Smith v.
Chater, 99 F.3d 635, 638 n.5 (4th Cir. 1996).
However,
The court may, on motion of the Commissioner of Social Security made for
good cause shown before the Commissioner files the Commissioner’s
answer, remand the case to the Commissioner of Social Security for further

action by the Commissioner of Social Security, and it 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 . . . .
42 U.S.C. § 405(g).
Because the Fourth Circuit has not directly addressed the issue of what constitutes
“good cause” in this context, the undersigned has looked to decisions from other circuits.
“In order to prove ‘good cause,’ a Claimant must ‘demonstrat[e] a reasonable
justification for the failure to acquire and present the evidence for inclusion in the hearing
before the ALJ.’” Courter v. Comm’r of Soc. Sec., 479 Fed. Appx. 713, 725 (6th Cir.
2012) citing Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001); Willis v. Sec’y Health &
Hum. Servs., 727 F.2d 551, 554 (1984) (per curiam). In Whitman v. Colvin, --- F.3d ---,
2014 WL 3896131 at *8 (8th Cir. August 7, 2014), the Eighth Circuit addressed whether
the plaintiff’s status as a pro se claimant evinced good cause under 42 U.S.C. §405(g).
The court concluded that it did not, where the plaintiff was informed of his right to legal
representation both in writing prior to the hearing and by the Administrative Law Judge
at the hearing and he failed to obtain counsel or to provide objective, supporting evidence
in his claim. Id.
Plaintiff argues about the newness and materiality of the evidence he seeks to
admit, but his only argument for good cause for failure to incorporate such evidence into
the record in a prior proceeding is a statement that current counsel did not represent him
at the hearing. See [Entry #10-1 at 2]. Based on the case law set forth above, the
undersigned is inclined to deny Plaintiff’s motion. However, the undersigned will give
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the parties the opportunity to brief the matter further. The Commissioner is directed to
file a response to Plaintiff’s motion to admit new evidence by October 8, 2014. Plaintiff
may file a reply within 10 days of the filing of the Commissioner’s response and should
address any additional factors that demonstrate “good cause” for Plaintiff’s failure to
incorporate this evidence into the record during the administrative proceedings.
IT IS SO ORDERED.

September 17, 2014
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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