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Stover v. Commissioner of Social Security

United States District Court, W.D. Pennsylvania

July 27, 2017

RICHARD WILFRED STOVER, JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Mitchell Magistrate Judge

          MEMORANDUM OPINION

          Joy Flowers Conti Chief United States District Judge

         Pending before the court is an appeal filed on August 23, 2016, pursuant to § 405(g) of the Social Security Act (“SSA”), 42 U.S.C. § 405(g), from the final decision of the Commissioner of Social Security (“Commissioner” or “defendant”) disallowing the claim of Richard Wilfred Stover, Jr. (“plaintiff” or “claimant”) for Supplemental Security Income benefits under §§ 1614 and 1631 of the SSA. (ECF No. 3.) This action was referred to a magistrate judge for report and recommendation in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrate Judges. Both parties filed motions for summary judgment. (ECF Nos. 14, 18.) On May 25, 2017, the magistrate judge issued a report and recommendation recommending that plaintiff's and defendant's cross-motions for summary judgment each be denied, and that the case be remanded to the Commissioner for review of additional evidence pursuant to 42 U.S.C. § 405(g). (ECF No. 21.) For the reasons set forth below, the court will reject the report and recommendation and return the matter to the magistrate judge to consider the additional arguments claimant raised in his motion for summary judgment. (See ECF Nos. 14, 15, 20.)

         I. Procedural Background

         Plaintiff filed an application for benefits on May 2, 2013. (ECF No. 7-6.) This application was denied. (ECF No. 7-5.) Plaintiff then requested a hearing, which was held on September 24, 2014. (ECF Nos. 7-5, 7-3.) On October 8, 2014, an Administrative Law Judge (the “ALJ”) denied benefits, after which plaintiff requested reconsideration. (ECF No. 7-2 at 33, 31.) In a letter to the Appeals Council dated May 22, 2015, plaintiff offered two additional pieces of evidence to support his application: a physical capacity evaluation by his primary care physician, Dr. Gordon Gold, dated January 20, 2015, and a neuro-psychological report by Dr. J. Audie-Black and Dr. Glen Getz, dated February 24, 2015. (ECF No. 7-8.) On June 22, 2016, the Appeals Council denied plaintiff's request for review of the ALJ's decision and affirmed the “not disabled” decision as final. (ECF No. 7-2.) The Appeals Council stated:

We also looked at . . . Physical Capacity Evaluation from Gordon Gold M.D. . . . [and the] NeuroPsychological Evaluation from J. Audie-Black, Ph.D. . . . The Administrative Law Judge decided your case through October 8, 2014. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before October 8, 2014.

(ECF No. 7-2 at 2.)

         On August 23, 2016, plaintiff filed this action against the Commissioner pursuant to § 405(g), for review of that decision. (ECF No. 3.) On May 25, 2017, the magistrate judge issued a report and recommendation denying plaintiff's and defendant's motions for summary judgment, and remanding the matter to the Commissioner pursuant to Sentence Six of § 405(g). (ECF No. 21.) On June 7, 2017, defendant filed objections to the report and recommendation. (ECF No. 22.) On June 22, 2017, plaintiff filed a reply. (ECF No. 23.) Having been fully briefed the matter is now ripe for disposition.

         II. Standard of Review

         Generally, when a claimant proffers new evidence not presented to the ALJ, a reviewing court's determination about whether to remand to the Commissioner is governed by Sentence Six of § 405(g) of the SSA. Salem v. Colvin, Civ. Action No. 15-1453, 2017 WL 363011, at *4 (W.D. Pa. Jan. 24, 2017) (citing Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001)).[1]Sentence Six provides that the court may order remand “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) (emphasis added); see Matthews, 239 F.3d at 593 (holding that “when the claimant seeks to rely on evidence that was not before the ALJ, the district court may remand . . . only if the evidence is new and material and if there was good cause why it was not previously presented to the ALJ (Sentence Six review).”). The burden of showing new and material evidence and good cause for delay is on the party seeking review. Platt v. Berryhill, Civ. Action No. 16-537, 2017 WL 1927721, at *3 (W.D. Pa. May 10, 2017) (stating that “[a]ll three requirements must be satisfied by a plaintiff to justify remand.”).

         III. Discussion

         Plaintiff argues that the Appeals Council violated his due process rights by excluding post-decision evidence from the administrative record. (ECF No. 15 at 15.) Plaintiff also attacks the Commissioner's findings.[2] Defendant, citing to Matthews, 239 F.3d at 593, states that district courts lack statutory authority to review a decision by the Appeals Council to deny review, but may examine additional evidence and remand pursuant to Sentence Six of § 405(g). (ECF No. 19 at 13.) Defendant argues, however, that the two additional pieces of evidence presented by plaintiff do not meet the new, material, and good cause requirements of Sentence Six. (ECF No. 19 at 13-15.)

         i. New Evidence

         Sentence Six requires that “the evidence must first be ‘new' and not merely cumulative of what is already in the record.” Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984); Haney v. Comm'r of Soc. Sec., Civ. Action No. 13-3033, 2014 WL 2916454, at *14 (D.N.J. June 26, 2014) (“Evidence must raise new issues or clarify existing ones, so as to go beyond merely reiterating past findings through new sources.”). New evidence must “not [be] in existence or available to the claimant at the time of the administrative proceeding.” Sullivan v. Finklestein, 496 U.S. 617, 626 (1990); see Chalfant v. Colvin, Civ. Action No. 15-1555, 2016 WL 7104387, at *3 (W.D. Pa. Dec. 6, 2016) (finding a medical report not to be ...


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