Swenson v. Commissioner of Social Security

Filing 13

ORDER denying 8 Motion to Dismiss. Signed by U.S. District Judge Karen E. Schreier on 10/04/2013. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES A. SWENSON, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIV. 12-4182-KES

ORDER DENYING DEFENDANT’S
MOTION TO DISMISS

Plaintiff, James A. Swenson, Jr., appeals the decision of the Administrative
Law Judge (ALJ) denying his claim for benefits under the Social Security and
Supplemental Security Income Program. The Commissioner moves to dismiss
Swenson’s complaint for failure to state a claim upon which relief can be
granted. Swenson resists the motion. For the following reasons, the motion is
denied.
FACTS
Swenson’s appeal arises out of medical records that were generated after
October 12, 2010, the date on which the ALJ denied Swenson benefits. Swenson
claims these new medical records show he is entitled to benefits.
The first medical record was generated on March 28, 2012, by Swenson’s
primary treating physician, Dr. Michael L. Lastine. Dr. Lastine diagnosed
Swenson with cervical disc disease, cervical radiculopathy, bipolar II, panic
disorder, and alcohol dependancy. The medical record states that Swenson’s

diagnoses are permanent conditions and that Swenson will not be able to
perform any employment in the foreseeable future. Docket 1-1.
The second set of medical records are from Southwestern Mental Health
Center. These records are assessments from various treatment sessions Swenson
attended between June 22, 2011, and May 21, 2012, and detail Swenson’s
“severe” psychological, physical, interpersonal, occupational/educational, and
daily life impairments. Docket 1-2.
Swenson claims this new medical information was not considered by the
ALJ and was not available when the ALJ’s decision was entered. Furthermore,
Swenson contends this new medical information shows he is entitled to benefits.
LEGAL STANDARD
When reviewing a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the court assumes that all facts in the complaint are true and construes
reasonable inferences from those facts in the light most favorable to the
nonmoving party to determine whether the allegations in the complaint show
that the pleader is entitled to relief. Schaaf v. Residential Funding Corp., 517 F.3d
544, 549 (8th Cir. 2008). The complaint must “include sufficient factual
information to provide the ‘grounds’ on which the claim rests[.]” Id. To decide the
motion to dismiss, the court may consider the complaint, exhibits attached to the
complaint, some materials that are part of the public record, and materials
embraced by the complaint. Porous Media Corp. v. Pall Corp., 186 F.3d 1077,
1079 (8th Cir. 1999). The complaint must contain “enough facts to state a claim

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to relief that is plausible on its face” to survive a motion to dismiss. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007).
DISCUSSION
The Commissioner argues Swenson’s appeal should be dismissed because
it arises from evidence that is not part of the administrative record.1 Under 42
U.S.C. § 405(g), a district 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.”
The Commissioner first argues Swenson cannot plausibly show good cause
for failing to incorporate the new evidence into the record during the hearing
before the ALJ. The Eighth Circuit Court of Appeals has held that “good cause is
established where the condition and associated records did not exist at the time
of the hearing.” Mouser v. Astrue, 545 F.3d 634, 637 (8th Cir. 2008). “Good cause
does not exist when the claimant had the opportunity to obtain the new evidence
before the administrative record closed but failed to do so without providing a
sufficient explanation.” Hepp v. Astrue, 511 F.3d 798, 808 (8th Cir. 2008).
Because the Commissioner brought its motion under the guise of Rule 12(b)(6),
the court may only consider the complaint and exhibits attached to the
complaint. Porous Media Corp., 186 F.3d at 1079. Moreover, the court must

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The Commissioner has not filed the administrative record with the court.
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construe all reasonable inferences in the light most favorable to the nonmoving
party, Swenson. Schaaf, 517 F.3d at 549.
The Commissioner’s argument suggests that Swenson was required to
plead his reasons for good cause in his complaint. But the Commissioner cites
no case law in support of her proposition nor has the court found any. A
complaint must “include sufficient factual information to provide the ‘grounds’
on which the claim rests[.]” Schaaf, 517 F.3d at 549. In his complaint, Swenson
articulated the grounds on which his claim rests: “This appeal is based upon
medical records of the Claimant dated subsequent to the date of the previous
denial.” Docket 1 at 1. He then provides further factual details about his alleged
disability and the new evidence thereof. Because the court is unaware of any
Eighth Circuit case law that requires more of a claimant seeking an appeal of the
Commissioner’s decision, the court finds Swenson has adequately put the
Commissioner on notice of his claim.
Second, the Commissioner argues Swenson cannot plausibly show the new
evidence is material. “To be considered material, the new evidence must be noncumulative, relevant, and probative of the claimant’s condition for the time
period for which benefits were denied.” Hepp, 511 F.3d at 808. The
Commissioner, however, does not cite and the court is not aware of any case law
that requires a Social Security claimant appealing the Commissioner’s decision
on the basis of new evidence to specifically allege the facts that show the new
evidence is material. The court will not impose such a requirement now because
it would be inconsistent with the general notion of notice pleading.
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Because Swenson has sufficiently stated a claim for which relief can be
granted, the Commissioner’s motion to dismiss is denied. Accordingly, it is
ORDERED that the Commissioner’s motion to dismiss is denied without
prejudice. The Commissioner is directed to promptly file the administrative
record with the clerk of courts.
Dated October 4, 2013.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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