United States District Court, W.D. Tennessee, Western Division
ORDER REMANDING CASE PURSUANT TO 42 U.S.C. §
PHAM UNITED STATES MAGISTRATE JUDGE.
the court is plaintiff Mary Gursky's appeal from a final
decision of the Commissioner of Social Security(“Commissioner”) denying her
application for disability insurance benefits under Title II
of the Social Security Act (“Act”), 42 U.S.C.
§§ 401 et seq. On October 25, 2016, the
parties consented to the jurisdiction of the United States
magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF
No. 10.) For the reasons set forth below, the decision of the
Commissioner is reversed and the action is remanded pursuant
to sentence four of 42 U.S.C. § 405(g).
March 7, 2013, Gursky applied for disability benefits under
Title II of the Act. (R. at 193.) Gursky alleged disability
beginning on March 31, 2006, due to rheumatoid arthritis,
fibromyalgia, depression and pain. (R. at 193, 206.)
Gursky's last date insured was December 31, 2013. (R. at
23, 220.) The Social Security Administration
(“SSA”) denied Gursky's application initially
and upon reconsideration. (R. at 113, 118.) At Gursky's
request, a hearing was held before an Administrative Law
Judge (“ALJ”) on April 27, 2015. (R. at 38, 122.)
On August 13, 2015, the ALJ issued a decision denying
Gursky's request for benefits after finding that Gursky
was not under a disability because she retained the residual
functional capacity (“RFC”) to perform jobs that
exist in significant numbers in the national economy. (R. at
25-31.) On June 21, 2016, the SSA's Appeals Council
denied Gursky's request for review. (R. at 1.) Therefore,
the ALJ's decision became the final decision for the
Commissioner. (Id.) Subsequently, on August 11,
2016, Gursky filed the instant action. (ECF No. 1.) Gursky
argues that (1) the court should remand the case so that the
ALJ may review new evidence, (2) the ALJ improperly weighed
the opinions of Gursky's treating physician and
therapists, and (3) the record lacks substantial evidence to
support the ALJ's finding that Gursky's testimony was
not entirely credible. (ECF No. 12 at 12 to 20.)
CONCLUSIONS OF LAW
Standard of Review
42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which she or he was a party. “The court
shall have power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). Judicial review of the Commissioner's
decision is limited to whether there is substantial evidence
to support the decision and whether the Commissioner used the
proper legal criteria in making the decision. Id.;
Burton v. Comm'r of Soc. Sec., No. 16-4190, 2017
WL 2781570, at *2 (6th Cir. June 27, 2017); Cole v.
Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v.
Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). Substantial evidence is more than a scintilla of
evidence but less than a preponderance, and is “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Kirk v.
Sec'y of Health & Human Servs., 667 F.2d 524,
535 (6th Cir. 1981) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
determining whether substantial evidence exists, the
reviewing court must examine the evidence in the record as a
whole and “must ‘take into account whatever in
the record fairly detracts from its weight.'”
Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990) (quoting Garner v. Heckler, 745 F.2d 383, 388
(6th Cir. 1984)). If substantial evidence is found to support
the Commissioner's decision, however, the court must
affirm that decision and “may not even inquire whether
the record could support a decision the other way.”
Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994)
(quoting Smith v. Sec'y of Health &
Human Servs., 893 F.2d 106, 108 (6th Cir. 1989)).
Similarly, the court may “not try the case de novo,
resolve conflicts in the evidence or decide questions of
credibility.” Ulman v. Comm'r of Soc.
Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting
Bass v. McMahon, 499 F.3d 506, 509 (6th
Cir. 2007)). The Commissioner, not the court, is charged with
the duty to weigh the evidence and to resolve material
conflicts in the testimony. Walters v. Comm'r of Soc.
Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v.
Sullivan, 921 F.2d 642, 644 (6th Cir. 1990); Prater
v. Comm'r of Soc. Sec., No. 114CV01221STATMP, 2017
WL 2929479, at *1 (W.D. Tenn. July 10, 2017).
The Five-Step Analysis
defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1). Additionally,
section 423(d)(2) of the Act states that:
An individual shall be determined to be under a disability
only if his physical or mental impairment or impairments are
of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For
purposes of the preceding sentence (with respect to any
individual), “work which exists in the national
economy” means work which exists in significant numbers
either in the region where such individual lives or in
several regions of the country.
the Act, the claimant bears the ultimate burden of
establishing an entitlement to benefits. Oliver v.
Comm'r of Soc. Sec., 415 F. App'x 681,
682 (6th Cir. 2011). The initial burden is on the claimants
to prove they have a disability as defined by the Act.
Siebert v. Comm'r of Soc. Sec., 105 F. App'x
744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d
at 529); see also Born v. Sec'y of Health & Human
Servs., 923 F.2d 1168, 1173 (6th Cir. 1990). If the
claimant is able to do so, the burden then shifts to the
Commissioner to demonstrate the existence of available
employment compatible with the claimant's disability and
background. Born, 923 F.2d at 1173; see also
Griffith v. Comm'r of Soc. Sec., 582 F.
App'x 555, 559 (6th Cir. 2014).
to social security benefits is determined by a five-step
sequential analysis set forth in the Social Security
Regulations. See 20 C.F.R. § 404.1520. First, the
claimant must not be engaged in substantial gainful activity.
See 20 C.F.R. § 404.1520(b). Second, a finding must be
made that the claimant suffers from a severe impairment. 20
C.F.R. § 404.1520(a)(4)(ii). In the third step, the ALJ
determines whether the impairment meets or equals the
severity criteria set forth in the Listing of Impairments
contained in the Social Security Regulations. See 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526. If the
impairment satisfies the criteria for a listed impairment,
the claimant is considered to be disabled. On the other hand,
if the claimant's impairment does not meet or equal a
listed impairment, the ALJ must undertake the fourth step in
the analysis and determine whether the claimant has the RFC
to return to any past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1520(e). If the ALJ
determines that the claimant can return to past relevant
work, then a finding of not disabled must be entered.
Id. But if the ALJ finds the claimant unable to
perform past relevant work, then at the fifth step the ALJ
must determine whether the claimant can perform other work
existing in significant numbers in the national economy. See
20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).
Further review is not necessary if it is determined that an
individual is not disabled at any point in this sequential
analysis. 20 C.F.R. § 404.1520(a)(4).
Whether to Remand for Review Based on New Evidence
requests that the court remand her case so the ALJ may
consider the additional evidence of a new medical assessment
from Gursky's treating source, Dr. Judith
Lee-Sigler. (ECF No. 12 at 14 to 16.) Prior to her
hearing, Gursky had provided the ALJ with an incomplete
medical assessment form by Dr. Lee-Sigler. (R. at 788-92.) On
October 27, 2015, after the ALJ's decision, Dr.
Lee-Sigler gave Gursky a complete medical assessment form in
which she had checked boxes to indicate that Gursky suffers
from severe physical and mental limitations. (ECF No. 12-1.)
may remand a case to an ALJ for review of additional evidence
“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). As the
language of the statute indicates, this places the burden of
production upon the claimant. See Miller v. Comm'r of
Soc. Sec., 811 F.3d 825, 839 (6th Cir. 2016) (citing 42
U.S.C. § 405(g); Foster v. Halter, 279 F.3d
348, 357 (6th Cir. 2001)).
the first requirement, in order to be new, the evidence must
not have existed or been “available to the claimant at
the time of the administrative proceeding.” Deloge
v. Comm'r of Soc. Sec. Admin., 540 Fed.Appx. 517,
519 (6th Cir. 2013) (citing Foster, 279 F.3d at
357). The new medical assessment was not available to the ALJ
at the time of the disability determination. However, the
“insurmountable hurdle” for Gursky is that this
medical assessment was available before June 21, 2016, which
is when the SSA Appeal's Counsel denied Gursky's
request for review. Lee v. Comm'r of Soc. Sec.,
529 Fed.Appx. 706, 717 (6th Cir. 2013) (refusing to remand a
Social Security Appeal to the ALJ for review of evidence that
the claimant had possessed during the SSA appellate review
but had not submitted to the Appeal's Counsel). But see
Templeton v. Comm'r of Soc. Sec., 215 Fed.Appx.
458, 463-64 (6th Cir. 2007) (noting that “[e]vidence is
‘new' only if it was not in existence or was not
available prior to the ALJ's decision”). The
medical assessment was available to Gursky during the course
of her administrative proceeding; ergo, it is not new
the second requirement, “evidence is
‘material' only if there is ‘a reasonable
probability that the [Commissioner] would have reached a
different disposition of the disability claim if presented
with the new evidence.'” Deloge, 540 F.
App'x at 519 (alteration in original) (quoting
Sizemore v. Sec'y of Health & Human Servs.,865 F.2d 709, 711 (6th Cir. 1988)). This evidence is not
material because it is not connected to the relevant time
period - March 31, 2006, Gursky's disability onset date,
to December 31, 2013, the last date Gursky was insured.
See McCraney v. Comm'r of Soc. Sec., 68
Fed.Appx. 570, 572 (6th Cir. 2003) (noting that “the
district court properly found that the proposed evidence was
not material because it involves mental ...