Opinion
CIVIL ACTION No: 02-2541-DJW.
June 5, 2003.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion for Remand Pursuant to Sentence Six of 42 U.S.C. § 405(g) (doc. 9). Defendant maintains that it would be appropriate for the Court to remand this case pursuant to sentence six of 42 U.S.C. § 405(g) to allow an Administrative Law Judge ("ALJ") to reevaluate the evidence related to the period October 1, 1998 through July 13, 1999, to obtain medial expert testimony to assist in clarifying the onset date of disability and, if necessary after consideration of Plaintiff's residual functional capacity, to obtain supplemental vocational expert testimony regarding other work that Plaintiff could perform. Defendant states that remand is necessary because the record is insufficient in that it contains numerous "inaudibles," which make it difficult to assess the testimony of the vocational expert. Plaintiff has filed her Response to Defendant's Motion for Remand Pursuant to Sentence Six of 42 U.S.C. § 405(g) (doc. 11), in which she states that she does not object to remanding this matter to the Appeals Council and then to an ALJ for a new hearing and decision. She does, however, object to some of the specific instructions the ALJ is to follow upon remand.
Sentence six of 42 U.S.C. § 405(g) states, in relevant part, as follows: The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it 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;. . . .
A remand under sentence six is appropriate if (1) the Commissioner requests a remand prior to answering the complaint, or (2) "new, material evidence is adduced that was for good cause not presented before the agency."
Shalala v. Schaefer, 509 U.S. 292, 297 n. 2 (1993).
In this case, a sentence six remand is appropriate. Defendant has (a) made a motion, (b) before filing an answer to Plaintiff's Complaint and (c) shown good cause, i.e., stated that the record is insufficient in that it contains numerous "inaudibles," which make it difficult to assess the testimony of the vocational expert. Therefore, a sentence six remand is appropriate in this case. Conflict arises in deciding the instructions to accompany the remand.
I. Defendant's Requested Instructions
Defendant requests a remand to an ALJ with the following instructions:
[1] The ALJ will be directed to reevaluate the evidence related to the period October 1, 1998, through July 13, 1999, [2] to obtain medical expert testimony to assist in clarifying the onset date of disability and, [3] if necessary after consideration of her residual functional capacity, to obtain supplemental vocational testimony regarding other work that the claimant could perform.
Def.'s Mot. for Remand at 2.
Plaintiff objects to some of Defendant's specific instructions limiting the ALJ's inquiry on remand. First, she objects to Defendant's instructions to limit reevaluation of the evidence to the period October 1, 1998 through July 13, 1999. Second, she objects to the instruction allowing the ALJ to obtain medical expert testimony to clarify the onset date of disability.
Pl.'s Resp. at 1.
Id. at 2.
A. Relevant Time Period for Reevaluation
Plaintiff first objects to Defendant's instructions to limit reevaluation of the evidence to the period October 1, 1998 through July 13, 1999. Instead, she contends that the ALJ should reevaluate the evidenced related to the time period beginning May 1, 1998 through July 13, 1999 because Plaintiff's alleged onset date of disability is May 1, 1998. Her alleged onset date of disability should be used as the beginning time period rather that the October 1, 1998 date cited by Defendant.
The Court agrees with Plaintiff and finds that this matter should be remanded with instructions to reevaluate the evidence related to the period May 1, 1998 through July 13, 1999. The Court is cognizant that the Plaintiff can only receive Disability Insurance Benefits (DIB) under Title II if she became disabled during the time she was insured. The Court is also aware of the implications involving Supplemental Security Income (SSI) under Title XVI and the proration of payments based upon her application date. The Court, however, does not find the issue of whether Plaintiff can ultimately receive benefits, and the amount thereof, should restrict the period of reevaluation of her claim pursuant to a sentence six remand. Defendant has not presented sufficient cause to limit the ALJ's reevaluation of the evidence to the time period beginning October 1, 1998.
Social Security Ruling (SSR) 83-20, 1983 WL 32149, at *1.
A larger relevant period for reevaluation of the evidence is more appropriate given the ALJ's duty to fully investigate and establish the date of disability.
Medical reports containing descriptions of examination or treatment of the individual are basic to the determination of the onset of disability. The medical evidence serves as the primary element in the onset determination. Reports from all medical sources (e.g., physicians, hospitals, and government agencies) which bear upon the onset date should be obtained to assist in determining when the impairment(s) became disabling.
* * *
In determining the date of onset of disability, the date alleged by the individual should be used if it is consistent with all the evidence available. When the medical or work evidence is not consistent with the allegation, additional development may be needed to reconcile the discrepancy. However, the established onset date must be fixed based on the facts and never be inconsistent with medical evidence of the record.
Id. at *2.
In this case, relevant medical reports exist in the record outside of the Defendant's proposed time frame of October 1, 1998 through July 13, 1999. Plaintiff's alleged onset of date, May 1, 1998, also falls outside the Defendant's proposed reevaluation time period. Furthermore, "there may be instances where it is necessary to establish that disability has existed for several consecutive months. This situation may occur where . . . medical documentation prior to application date is relevant to an assessment of severity and duration." As Defendant fails to provide a sufficient cause why the Court should restrict the time period to begin October 1, 1998, the Court finds that this matter should be remanded pursuant to sentence six with instructions to reevaluate the evidence related to time frame of May 1, 1998 to July 13, 1999.
Id. at *8.
B. Medical Expert Testimony
Plaintiff also objects to Defendant's proposed instruction that allows the ALJ to obtain medical expert testimony to assist in clarifying the onset date of disability. Plaintiff asserts that there is no reason to require the testimony of a medical expert at the hearing before the ALJ. This Court disagrees. The ALJ should be permitted to call on a medical expert if necessary to help the ALJ with his or her decision. While the determination of Plaintiff's onset date of disability is made by the ALJ and not a medical expert, the question of whether a medical expert is needed is best decided by the ALJ, as he or she is the individual reviewing the medical evidence of record and can best decide if such expert is required for a full adjudication of Plaintiff's claim. Initially, preference is given to the reports of the treating physician. When the treating physician's opinion is inconsistent with other evidence in the record, the ALJ can then turn to the testimony of a medical expert. This testimony is often used to infer the onset date of disability, as is the case here. But, the use of the testimony is at the discretion of the ALJ and not the court. The Court, therefore, overrules Plaintiff's objection to Defendant's proposed instruction on remand that allows the ALJ to obtain medical expert testimony to assist in clarifying the onset date of disability.
Wilson v. Apfel, No. 99-1522-WEB, 2000 U.S. Dist. LEXIS 22268, at *12 (D.Kan. Aug. 9, 2000).
Id. at *11.
Id.
SSR 83-20, 1983 WL 31249 at *2.
C. Plaintiff's Request for Affirmation
Finally, Plaintiff requests that the Court affirm the portion of the prior ALJ decision that found Plaintiff disabled beginning July 14, 1999; and that the only question to be decided on remand is if Plaintiff was disabled pursuant to the Social Security Act for the period May 1, 1998 through July 13, 1999. This Court declines to do so. The district court's authority to remand a social security case is limited to three carefully defined circumstances. The court may remand the case after passing on its merits and issuing a judgment affirming, reversing, or modifying the Secretary's decision. This is referred to as a sentence four remand. Alternatively, the court may remand the case without ruling on the merits if (1) the Commissioner requests a remand prior to answering the complaint, or (2) new, material evidence is adduced that was for good cause not presented before the agency. These are considered sentence six remands. Both parties in the present case have agreed that this remand is pursuant to sentence six of 42 U.S.C. § 405(g). Thus, this Court cannot "affirm, reverse, or modify the Secretary's decision." This would then reclassify the Court's action as a sentence four remand; an action clearly not requested by either party, nor appropriate for the case at hand. Therefore, the ALJ can freely decide to abandon or confirm the earlier decided onset date of July 14, 1999, as this Court declines to reaffirm the ALJ's earlier decision.
See 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991).
Id. at 98.
Shalala, 509 U.S. at 297 n. 2.
Melkonyan, 501 U.S. at 100 n. 2.
IT IS THEREFORE BY THE COURT ORDERED that Defendant's Motion for Remand Pursuant to Sentence Six of 42 U.S.C. § 405(g) (doc. 9) is granted. This matter is remanded, pursuant to sentence six of 42 U.S.C. § 405(g), with instructions to reevaluate the evidence related to the period May 1, 1998 through July 13, 1999, to obtain, if needed, medial expert testimony to assist in clarifying the onset date of disability and, if appropriate, to obtain supplemental vocational expert testimony.
IT IS SO ORDERED.