United States District Court, M.D. Pennsylvania
MARTIN C. CARLSON, Magistrate Judge.
This is an action brought under 42 U.S.C. § 405(g) to review the decision of the Commissioner of Social Security to deny the plaintiff's claim for disability insurance benefits (DIB) under Title II of the Social Security Act (Act), 42 U.S.C. §§ 401-433. In such cases, in the course of judicial review of a disability determination, one remedy that is available to the Court is a remand of this action to the Commissioner pursuant to sentence six of § 405(g), which provides as follows:
The court may, on the motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, 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; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact of his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based.
42 U.S.C. §405(g).
Upon a review of the record in this case, we believe that this appeal may present one of those unusual instances in which a sentence six remand to the Commissioner is appropriate since the plaintiff has alleged, without contradiction by the defendant, that there has been a significant, post-hearing medical development which may profoundly affect the assessment of this claim. Specifically, the plaintiff, Scott Shields, sought disability benefits as a result of what he alleged to have been constant, intractable, disabling pain in his right foot and leg following a workplace accident. Shields' claim of disabling pain was supported by the opinion of his treating physician, but was rejected by the Administrative Law Judge as not fully credible or medically supported by treatment records.
The plaintiff now alleges that there has been a medical development following Shields' administrative hearing which casts an entirely new, and materially different, light upon the ALJ's opinion which discounted Shields' claims of pain and his treating physician's opinion that this pain was disabling. According to the plaintiff: "Subsequent to the testimony [before the ALJ], the plaintiff underwent an amputation of his right leg, " in an effort to reduce and alleviate his pain. (Doc. 9, p. 14.) In our view, the plaintiff's willingness to undergo the amputation of a limb on the advice of his treating physician in order to alleviate his pain is a new, profound and material medical development, one which casts both the plaintiff's complaints of pain and the treating doctor's opinion regarding the severity of this injury in a dramatic new light. Accordingly, for the reasons set forth below, we will remand this matter to the Commissioner for reconsideration in light of this new evidence.
II. Statement of Facts and of the Case
On November 29, 2010, Scott Shields applied for social security disability benefits, alleging that he had become disabled as of July 23, 2004, as a result of a workplace accident which caused severe injuries to his right leg and foot. (Tr. 115-18, 135.) The Pennsylvania state agency denied Shields' claim in an initial determination, (Tr. 74-79.), and at Shields' request, an Administrative Law Judge (ALJ) held a hearing on January 9, 2012. Shields, who was represented by counsel, testified at this hearing, describing the severe, chronic, intractable leg pain that he suffered from as a result of this injury. (Tr. 33-65.) Shields' disability claim was also supported by the opinion of his treating physician, Dr. Thomas Jiunta. Dr. Jiunta, who had been treating Shields since January 2005, (Tr. 241.), opined that Shields was totally disabled due to this painful leg injury. (Tr. 255.)
Despite this testimony, on March 28, 2012, the ALJ issued a ruling which found finding that Shields could perform a modified range of unskilled, sedentary work including the representative jobs that the vocational expert identified and, therefore, was not disabled. (Tr. 10-19.) In reaching this result, the ALJ specifically concluded that Shields' "statements concerning the intensity, persistence and limiting effects of these [pain] symptoms are not credible to the extent they are inconsistent with [the ALJ's] residual functional capacity assessment." (Tr. 14.) The ALJ also found that Shields' "subjective complaints and limitations regarding pain and functionality are beyond what the objective evidence of record indicates." (Tr. 16.) Finally, the ALJ discounted the opinion of Shields' treating physician, Dr. Jiunta, that Shields could not work due to his injury, holding that this medical treating course opinion was "contrary to the objective findings and diagnostic testing of the record as a whole, which were moderate at worst." (Tr. 17.)
While the ALJ made these adverse credibility determinations regarding the severity of Shields' pain, and the validity of the treating doctor's opinion that this chronic pain was wholly disabling on the basis of the evidentiary record that was then before the ALJ, Shields alleges without contradiction that there has been a material change in his physical condition following this hearing, a change which casts his subjective complaints and Dr. Jiunta's opinion in an entirely new light. According to the plaintiff: "Subsequent to the testimony [before the ALJ], the plaintiff underwent an amputation of his right leg, " in an effort to reduce and alleviate his pain. (Doc. 9, p. 14.) Thus, we are now presented with this claim of new evidence, evidence which suggests that the chronic pain Shields experienced in his right leg was so persistent and so severe that Shields' physician recommended, and Shields agreed, to amputate the leg below the knee rather than endure further pain.
It is against this backdrop that we consider the question of whether a remand is appropriate in this case to reassess the evidence regarding severity of Shields' pain in light of the fact that Shields was willing to amputate his foot in order to alleviate this pain.
A. Judicial Review-New ...