Opinion
CIVIL 1:21-cv-663
03-08-2022
MICHAEL MILLIRON, Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security[1], Defendant
CARLSON, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
MARIANI, JUDGE
I. Introduction
Section 405(g) of Title 42, United States Code, confers upon the Court in Social Security appeals the ability to remand a case for consideration of newly discovered evidence, providing that:
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[.]42 U.S.C. § 405 (g)
The instant case implicates this procedure, which is colloquially known as a Sentence 6 remand. In this case, the plaintiff, Michael Milliron, applied for disability benefits on July 11, 2017, alleging that he had become disabled in July of 2016 following injuries suffered in a severe automobile accident. At that time Milliron's presenting medical concern was allegedly disabling back pain since that was the only medical condition diagnosed in Milliron's case. Therefore, the Administrative Law Judge (ALJ) initially evaluated this case based solely upon a consideration of Milliron's degenerative disc disease and how this accident may have exacerbated this condition.
However, following his administrative hearing, and shortly before the ALJ issued a decision denying this claim based solely upon a consideration of Milliron's spinal impairments, Milliron began treating with another caregiver. Shortly after the ALJ's adverse decision on this claim, that caregiver submitted a medical opinion which contained an entirely new, and previously unexplored, medical diagnosis. According to this treating source, this accident also triggered a series of previously unidentified neurological and emotional impairments including concussion, PTSD, sleep disorders, attention deficit disorders, and cognitive communication disorders. (Tr. 56). Moreover, this treating source considered these conditions so severe that they were deemed disabling by Milliron's treating physician assistant.
None of this information was before the ALJ at the time of this initial decision in this case. Moreover, in our view, this information and opinion evidence, which opened entirely new fields of inquiry into the potentially disabling impact of this accident, was new, material and relevant to this disability determination. Further, given that this treatment only began after the ALJ's initial hearing in this case, we conclude that Milliron has brought this new and material information to the Commissioner's attention in a timely fashion. Therefore, finding that the requirements for a Sentence 6 remand are fully satisfied here, for the reasons set forth below we recommend that this matter be remanded for further consideration by the Commissioner.
II. Statement of Facts and of the Case
On July 11, 2017, Michael Milliron applied for disability insurance benefits pursuant to Title II of the Social Security Act. (Tr. 11). Milliron was born in 1965 and was approximately 53 years old at the time of the alleged onset of his disability. As such, he was considered an individual closely approaching advanced age under the Commissioner's regulations. (Tr. 18).
Milliron's disability application alleged an onset of disability beginning on July 20, 2016, and it was evident from the administrative record that the triggering event that precipitated this disability application was a serious automobile accident experienced by Milliron in which his vehicle was struck from behind by a semi-tractor trailer and was pushed some 200 yards, resulting in the total destruction of Milliron's vehicle. (Tr. 60).
As Milliron's claim was initially presented to the ALJ the sole focus of the claim seems to have been upon the ways in which this accident exacerbated Milliron's pre-existing degenerative disc disease. Indeed, this was the only condition identified as a severe impairment by the ALJ. (Tr. 13). Thus, the agency administrative process was focused almost entirely upon the spinal and orthopedic aspects of this accident, and any neurological or emotional impairments stemming from this accident received scant attention in this disability evaluation. Our initial review of the administrative record before the ALJ reflects only isolated references to any neurological or psychological complications arising out of this accident. For example, the principal treating source opinion originally considered by the ALJ, a May 15, 2017 opinion from Dr. Robert Martinez, addressed Milliron's back injuries but largely discounted any mental impairments, noting without further explanation that “[t]here was no head injury and no loss of consciousness.” (Tr. 60). This spinal, orthopedic focus on the part of Milliron's doctor, in turn, led the state agency expert Dr. Guie, to assess Milliron's claim solely in terms of his back injuries without any other neurological or psychological evaluation. (Tr. 106-113).
With the medical evidence confined almost exclusively to Milliron's back injuries, an administrative hearing was held in Milliron's case on November 8, 2018. (Tr. 79-104). Following this hearing, on March 13, 2019, the ALJ entered a decision denying Milliron's disability claim. (Tr. 8-19). With the ALJ's analysis cabined and confined to an evaluation of Milliron's back condition, the ALJ concluded that the plaintiff could perform a range of work at a medium exertional level and therefore was not disabled. Notably, the focus of this decision was entirely upon Milliron's orthopedic spinal impairments, which were the only severe impairments identified for the ALJ's consideration. Thus, the initial ALJ decision in this case only made passing reference to the fact that Milliron has “a history of headaches” without any further neurological or psychological assessment of the plaintiff's health. (Tr. 13).
However, even as the ALJ was reaching these conclusions based upon the medical record that had been initially presented, in March of 2019 Milliron began to undergo treatment at the Center for Neurorehabilitation Services (CNS). On June 5, 2019, Physician Assistant Madison Brown, a treating caregiver for Milliron at CNS issued a medical report which opined that this July 2016 accident had triggered a series of previously unidentified but severe neurological and emotional impairments for the plaintiff including concussion, PTSD, sleep disorders, attention deficit disorders, and cognitive communication disorders. (Tr. 56). In addition to identifying these new, and significant, medical conditions, PA Brown's report stated that Milliron's traumatic brain injuries and PTSD were “significant barriers to his ability to hold gainful employment at this time, ” and opined that Milliron should be “considered medically disabled.” (Tr. 57).
This evidence describing new, different, and potentially disabling neurological and psychological impairments was provided to the Social Security Appeals Council. (Tr. 56-57). However, on June 16, 2020, more than fifteen months after the ALJ's decision and approximately one year after PA Brown identified and opined as to the disabling impact of these newly identified impairments, the Appeals Council denied further review of Milliron's claim. (Tr. 1-7).
This appeal follows. (Doc. 1). On appeal, Milliron raises a number of claims, including an argument that the Commissioner erred by failing to address this newly discovered neurological and psychological evidence in any meaningful way. This matter is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below, it is recommended that the Court enter an order directing a Sentence 6 remand for consideration of this neurological evidence since the requirements for a remand under 42 U.S.C. §405 (g) are fully satisfied here.
III. Discussion
A. Legal Standards Governing New Evidence Remands
Section 405(g) of Title 42, United States Code, provides that:
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[.]42 U.S.C. § 405(g)
Yet while §405(g) permits new evidence remands, the legal standards that must be met to warrant a remand based upon newly discovered evidence are exacting ones. As we have noted in this setting:
42 U.S.C. § 405(g) provides that: “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.” In exercising this authority, the United States Court of Appeals for the Third Circuit has emphasized that a claimant seeking remand on the basis of new evidence must demonstrate that the additional evidence is both new and material, and that the claimant had good cause for not submitting the evidence to the ALJ for his initial review. Szubak v. Sec'y of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Where such criteria are met, the district court may enter what is colloquially referred to as a “sentence six” remand pursuant to the sixth sentence of 42 U.S.C. § 405(g).
In order for a claimant to prevail on a request for a sentence six remand, the evidence to be considered must first truly
be “new evidence” and “not merely cumulative of what is already in the record.” Szubak, 745 F.2d at 833. Second, the evidence must be “material, ” meaning that it must be “relevant and probative.” Id. In making this determination,
the materiality standard of § 405(g) requires “that there be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination.” Id. See also Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1381 (9th Cir. 1984); Dorsey v. Heckler, 702 F.2d 597, 604-05 (5th Cir. 1983); Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Thus, to secure remand, a claimant must show that new evidence raises a “reasonable possibility” of reversal sufficient to undermine confidence in the prior decision. The burden of such a showing is not great. A “reasonable possibility, ” while requiring more than a minimal showing, need not meet a preponderance test. Instead, it is adequate if the new evidence is material and there is a reasonable possibility that it is sufficient to warrant a different outcome.
Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985). Further, “[a]n implicit materiality requirement is that the new evidence relate to the time period for which benefits were denied....” Szubak, 745 F.2d at 833 (citing Ward v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982)).
In practice,
[f]our factors must be considered pursuant to this requirement. See, e.g., Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985). First, the evidence must be new and not merely cumulative of what is already in the record. Id. at 287. Second, the evidence must be material, relevant and probative. Id. Third, there must exist a reasonable probability that the new evidence would have caused the Commissioner to reach a different conclusion. Id. Fourth, the claimant must show good
cause as to why the evidence was not incorporated into the earlier administrative record. Id.
Scatorchia v. Comm'r of Soc. Sec., 137 Fed.Appx. 468, 472 (3d Cir. 2005).Passaretti v. Berryhill, No. 4:17-CV-1674, 2018 WL 3361058, at *10-11 (M.D. Pa. July 10, 2018).
It is against these legal guideposts that we assess the instant appeal.
B. This Case Should Be Remanded for Consideration of Milliron's Neurological and Emotional Impairments.
While §405(g) plainly sets high benchmarks for new evidence remands in Social Security appeals, in this case we believe that those benchmarks have been met and a remand of this case is warranted. Turning to the four-part test prescribed by the courts for Sentence 6 new evidence remands, we note that the first two elements of this test have clearly been met here.
At the outset, it is evident that the first criteria for a Sentence 6 remand is satisfied here since this evidence is “ ‘new' and not merely cumulative of what is already in the record.” Szubak, 745 F.2d at 833. Indeed, the report of PA Brown entails entirely new diagnoses of previously unidentified neurological and psychological complications for Milliron stemming from this July 2016 accident. These matters were never identified at the time of the initial ALJ proceedings in this case, and they are undeniably substantial new medical concerns.
Further, this new evidence meets the second remand criteria in that it is both relevant and potentially probative. This evidence directly relates to the time period encompassed by Milliron's disability claim since PA Brown identifies these neurological and mental impairments as a direct consequence of the July 2016 accident experienced by Milliron. Moreover, PA Brown describes the severity of these conditions in terms that are wholly disabling. Therefore, this new evidence clears the hurdles of relevance and probative value.
Further, this new evidence also meets the materiality standard prescribed by the courts. As the Third Circuit has observed on this score:
[T]he materiality standard of § 405(g) requires “that there be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination.” Id. See also Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1381 (9th Cir.1984); Dorsey v. Heckler, 702 F.2d 597, 604-05 (5th Cir.1983); Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir.1981). To secure remand, a claimant must show that new evidence raises a “reasonable possibility” of reversal sufficient to undermine confidence in the prior decision. The burden of such a showing is not great. A “reasonable possibility, ” while requiring more than a minimal showing, need not meet a preponderance test. Instead, it is adequate if the new evidence is material and there is a reasonable possibility that it is sufficient to warrant a different outcome.Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985).
In this case, if PA Brown's diagnoses and opinions were credited by an ALJ, those medical judgments would compel a finding of disability. Since, in order to be material evidence justifying a remand, “it is adequate if . . . there is a reasonable possibility that it is sufficient to warrant a different outcome, ” Id., the fact that this evidence, if accepted, drives a finding of disability plainly satisfies this materiality benchmark, a burden which has been characterized by the court of appeals as “not great.” Id.
Finally, on the unique facts of this case, we conclude that Milliron has demonstrated good cause for not having incorporated this evidence into the original administrative record. That good cause is evident from consideration of the chronology of this case. Milliron's disability hearing was held on November 8, 2018 and the ALJ's decision denying his claim was submitted on March 13, 2019. However, PA Brown's medical opinion letter states that Milliron only commenced treatment with the Center for Neurorehabilitation Services on March 4, 2019. (Tr. 56). Since Milliron did not begin to receive treatment for these conditions until after his ALJ hearing and only began that treatment nine days prior to the ALJ's adverse decision, it would not have been possible for him to provide this information regarding his new diagnoses and prognoses in time for that material information to have been included in the original administrative record.
Having concluded that the requirements for a Sentence 6 remand are fully satisfied here, it is recommended that this case be remanded to the Commissioner for full merits consideration of this neurological and psychological evidence. Yet, while we reach this recommendation, we note that nothing in this Report and Recommendation should be deemed as expressing a judgment on what the ultimate outcome of any reassessment of this evidence should be. Rather, this task should remain the duty and province of the ALJ on remand. Further, having found that a remand is justified on these grounds, we have not addressed any other claimed errors advanced by Milliron because the ALJ may, in the first instance, address them upon remand. See McMillan v. Comm'r of Soc. Sec., No. 16-313, 2018 WL 6617841, at *4 (D.N.J. Dec. 18, 2018) (holding the same in finding that a remand was appropriate because the ALJ failed to properly consider the plaintiff's severe obesity impairment at the third step and the fifth step, and thus the Court “need not consider Plaintiff's other arguments at this juncture”); see also Lawrence v. Colvin, No. 15-2851, 2016 WL 1644622, at *10 (D.N.J. Apr. 26, 2016) (holding the same in finding that a remand was appropriate because the ALJ failed to properly consider one of the claimant's disabilities, and thus the ALJ would be required to engage in an entirely new evaluation concerning the claimant's other alleged severe disabilities).
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that this case be REMANDED for further consideration by the Commissioner.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.