United States District Court, W.D. Pennsylvania
N. Bloch, United States District Judge.
NOW, this 17th day of September, 2019, upon
consideration of Defendant's Motion for Summary Judgment
(Doc. No. 18) filed in the above-captioned matter on February
19, 2019, IT IS HEREBY ORDERED that said Motion is DENIED.
further, upon consideration of Plaintiff's Motion for
Summary Judgment (Doc. No. 15) filed in the above-captioned
matter on November 12, 2018, IT IS HEREBY ORDERED that said
Motion is GRANTED IN PART and DENIED IN PART. Specifically,
Plaintiff's Motion is granted to the extent that it seeks
a remand to the Commissioner of Social Security
(“Commissioner”) for further evaluation as set
forth below, and denied in all other respects. Accordingly,
this matter is hereby remanded to the Commissioner for
further evaluation under sentence six of 42 U.S.C. §
405(g) in light of this Order.
Jay Archer Ditrich, protectively filed a claim for
supplemental security income under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et seq.,
on October 29, 2014, claiming that he became disabled on
October 20, 2013, due to depression, diabetes, joint
pain/arthritis, bone spurs, disc problems, and cataracts. (R.
590). Plaintiff's claim was denied initially on January
16, 2015. (R. 502). Plaintiff sought a hearing before an
Administrative Law Judge (“ALJ”) on February 20,
2015. (R. 521). Plaintiff submitted, via fax, medical records
from St. Vincent Hospital to the Office of Disability
Adjudication and Review (“ODAR”) on April 6,
2017. (Doc. No. 16, Ex. A). Upon review of the agency's
file prior to the administrative hearing, Plaintiff saw that
the records were not included therein, so he submitted them
via fax again on April 10, 2017. (Doc. No. 16, Ex. B).
Plaintiff also submitted via fax medical records from
McClelland Family Practice to ODAR on March 7, 2017. (Doc.
No. 16, Ex. C).
April 12, 2017, a hearing was held before the ALJ. (R.
30-70). At the hearing, Plaintiff's counsel informed the
ALJ that that he had recently sent certain records, and a
somewhat confusing discussion ensued as to whether all the
records, including those that had recently been faxed, were
actually before the ALJ. (R. 33-35). Remarkably, the ALJ
indicated at the hearing that Plaintiff's attorney was
“not the first attorney today to tell me that something
was remiss with the records. I don't know why that is. I
will go back and talk to them about it because it can be
confusing.” (R. 35).
decision dated July 11, 2017, the ALJ denied Plaintiff's
request for benefits. (R. 18-26). The ALJ's decision did
not mention records from St. Vincent Hospital or McClelland
Family Practice, and the records that Plaintiff had sent (and
resent) to ODAR for consideration by the ALJ were not
included in the List of Exhibits attached to the ALJ's
decision. (R. 27-29).
24, 2017, Plaintiff mailed a letter to the Appeals Council
requesting review of the ALJ's decision, and attached yet
another set of the previously faxed medical records. (Doc.
No. 16, Ex. D; R. 552-60). Plaintiff states that a follow-up
phone call confirmed that the records had been received.
Nevertheless, on March 26, 2018, Plaintiff's counsel
explains that he received a call from the Appeals Council
explaining that the previously faxed medical records could
again not be found and asking that another copy be sent.
Plaintiff submitted another copy of the records at issue via
fax that same day. (Doc. No. 16, Ex. E). The Appeals Council
denied Plaintiffs request for review on June 12, 2018. (R.
filed a timely appeal with this Court, and the parties have
filed cross-motions for summary judgment. The transcript
initially submitted to the Court also did not include a
complete copy of the medical records that Plaintiff had
submitted and resubmitted several times. Plaintiff states
that, after several discussions with the government,
Plaintiff again resubmitted the records to ODAR at the
government's request in order to supplement the record
before the Court. The records at issue were eventually
included for the Court's consideration in a supplemental
transcript. (Doc. No. 13, R. 1393-1766).
the forms of relief presently sought by Plaintiff is for the
Court to remand the matter to the Commissioner for
consideration of all the evidence submitted in this claim,
including the medical records discussed above which, for some
unknown reason, were submitted and re-submitted by Plaintiff
but were never included by the agency in the ALJ's
record. The government has responded to Plaintiffs contention
by asserting that remand based on evidence that was not
before the ALJ is only appropriate if the evidence is new and
material and if there is good cause why it was not previously
presented to the ALJ. (Doc. No. 19, at 10 (citing
Matthews v. Apfel 239 F.3d 589, 594 (3d Cir. 2001)).
the government appears to be treating the evidence that the
agency erroneously omitted from the ALJ's record as
“new” evidence, the submission of which would
only lead to a remand if the specific requirements set forth
in Matthews v. Apfel are met. The Court emphasizes,
however, that the rule regarding remand based on new evidence
applies to evidence that a Plaintiff has not submitted to the
ALJ. Here, Plaintiff did properly submit the records
at issue to the ALJ-twice-but, perhaps due to technical
errors or clerical mistakes on the part of the agency, such
evidence was never entered into the record for the ALJ's
consideration.Further, Plaintiffs counsel brought the
issue of the missing evidence to the ALJ's attention at
the administrative hearing, but as explained, supra,
the limited discussion between the ALJ and Plaintiffs
attorney apparently did not clear up the matter since the
missing records were not referred to by the ALJ in his
decision, nor were they among his decision's exhibits.
Court notes that, in submitting the medical records to the
ALJ, Plaintiff complied with 20 C.F.R. § 416.1435, which
states, “Each party must make every effort to ensure
that the [ALJ] receives all of the evidence and must inform
us about or submit any written evidence . . . no later than 5
business days before the date of the scheduled
hearing.” Plaintiff faxed the records at issue to the
ALJ in compliance with this rule, and then faxed them again
when they did not appear in the agency's record. Despite
Plaintiffs efforts, however, the agency failed to enter the
evidence into the record for the ALJ's consideration.
the government contends that the agency's failure to
include the missing evidence in the ALJ's record is
irrelevant because the Appeals Council eventually considered
the evidence in its review process, the Court does not agree.
Rather, the Court finds that the piecemeal manner in which
the evidence was considered by the agency was inadequate in
this particular case. The missing evidence at issue consisted
of Plaintiff s medical records from the relevant time period,
which were available for consideration by the ALJ because
Plaintiff had provided them to the agency in accordance with
the law. See Dobrowolsky v. Califano, 606 F.2d 403,
407 (3d Cir. 1979) (holding that a reviewing court may remand
a case where relevant, probative and available evidence was
not explicitly weighed in arriving at a decision on a
disability claim). The missing medical records should not
have been considered solely by the Appeals Council in the
context of review of the ALJ's decision. Instead, the
missing records should have been considered in the first
place by the ALJ in her review of the record as a whole since
they could have impacted the manner in which other evidence
was viewed. Remand is therefore necessary for a more
comprehensive consideration of this evidence and its impact
on the findings as a whole. See Vorchak v. Colvin,
No. 15-1317, 2016 WL 5407735, at *3 (W.D. Pa. Sept. 28,
short, upon consideration the ALJ's record, which did not
contain all the evidence Plaintiff had properly submitted,
the Court cannot determine whether the various findings by
the Commissioner are supported by substantial evidence, and
thus, the Court finds that substantial evidence does not
support the Commissioner's decision in this case.
Accordingly, the Court finds that it is appropriate to remand
the matter to the Commissioner under sentence six of Section
405(g) for reconsideration of the full record in light of the
fact that the record before the ALJ was incomplete. The Court
takes no position as to the weight to be given to any ...