Hogan v. Colvin

Filing 32

MEMORANDUM DECISION AND ORDER denying 17 Motion for Supplemental Proceedings. Signed by Magistrate Judge Brooke C. Wells on 5/18/2017. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ERIC HOGAN,

MEMORANDUM DECISION AND ORDER
DENYING MOTION TO SUPPLEMENT
Plaintiff,

v.

Case No. 2:16-cv-180 RJS

NANCY A. BERRYHILL, 1 Acting
Commissioner of Social Security,

District Judge Robert Shelby
Magistrate Judge Brooke Wells

Defendant.
Pending before the court is Plaintiff’s Motion for Supplemental Proceedings. 2 Plaintiff
“moves to supplement the record with the separately submitted report of Dr. Juan Mejia, dated
February 18, 2016, . . . .” 3 The Administrative Law Judge (ALJ) decision issued on October 19,
2015 4 and the Appeals Council action is dated January 27, 2016. 5 Dr. Mejia’s examination
“began on October 22, 2015, three days after the ALJ Decision and during the pendency of the
Appeals Council review.” 6 But the report did not issue until February 18, 2016.
In the report Dr. Mejia diagnoses included PTSD, an impairment not found as severe by
the ALJ at step-two of the sequential evaluation process. 7 Plaintiff argues the evidence is “new,

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill will be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.

2

Docket no. 17.

3

Motion to Supplement, p. 1, docket no. 17.

4

Tr. 9 (Tr. refers to the transcript of the record before the court).

5

Tr. 1-3

6

Motion to Supplement p. 1.

7

See 20 C.F.R. 416.920(a).

and not cumulative, as it contains new facts, i.e., tests not previously administered ….” 8 And, it
contains “a diagnosis not even considered by the ALJ, PTSD.” 9 According to Plaintiff, the
evidence is material if the ALJ’s decision “’might reasonably have been different if the new
evidence had been before him.’” 10 Further, the diagnosis is not retroactive showing deterioration
in the Plaintiff’s condition but is a new condition.
Under 42 U.S.C. § 405(g): “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.” 11 This is an exception to the normal Social
Security disability review process. Generally, “Court review of the Secretary's denial of Social
Security disability benefits is limited to a consideration of the pleadings and the transcript filed
by the Secretary as required by 42 U.S.C. § 405(g). It is not a trial de novo. The court is not at
liberty to consider evidence not in the record certified by the Secretary.” 12
The court is not persuaded by Plaintiff’s arguments and finds his request for admission of
this evidence improper. Contrary to Plaintiff’s arguments, the ALJ did consider PTSD multiple
times in his decision. For example the ALJ considered Dr. Malm’s impression of PTSD, 13 Dr.
Eastvold noting Plaintiff’s “level of anger and PTSD” 14 and Dr. James opining that the
psychological evaluation “revealed PTSD.” 15 Further the cases cited to by Plaintiff, Wilson v.
8

Motion to Supplement p. 2.

9

Id.

10

Id. (quoting Wilson v. Astrue, 602 F.3d 1136, 1148 (10th Cir. 2010)).

11

42 U.S.C. § 405(g).

12

Atteberry v. Finch, 424 F.2d 6, 39 (10th Cir. 1970) (internal citations omitted).

13

Tr. 23.

14

Tr. 24.

15

Tr. 26.

2

Astrue 16 and Coleman v. Chater, 17 do little to support Plaintiff’s position. Wilson involved
statements that “were clearly prepared with Ms. Wilson’s social security claim in mind” 18 not a
competency evaluation prepared for standing trial in another matter. And, Plaintiff admits that
the diagnosis is not retrospective as in Coleman.
In short, the court finds the new evidence was not part of the record before the ALJ, was
not derivative evidence based “solely on evidence already in the administrative record” 19 and
was not material because the ALJ already had evidence of PTSD before him.
Plaintiff’s Motion for Supplemental Proceedings is therefore DENIED.
IT IS SO ORDERED.

DATED this 18 May 2017.

Brooke C. Wells
United States Magistrate Judge

16

602 F.3d 1136 (10th Cir. 2010).

17

58 F.3d 577 (10th Cir. 1995).

18

Wilson v. Astrue, 602 F.3d at 1149.

19

Id.

3