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Hooks v. Berryhill

United States District Court, N.D. Alabama, Southern Division

August 2, 2017

GROVER C. HOOKS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This matter comes before the court on the Motion to Incorporate New Evidence Into the Records Evidence pursuant to 42 U.S.C. § 405(g) filed by Plaintiff Grover C. Hooks on July 10, 2017. (Doc. # 15). In his Motion, Plaintiff contends that new evidence, not previously considered by the Administrative Law Judge (“ALJ”) or Appeals Council, should be submitted into the record. For the reasons set forth below, the court finds that the Motion is due to be granted, and this case is due to be remanded to the ALJ for consideration of the new evidence.

         I. Proceedings Below

         Plaintiff filed his application for disability insurance benefits (“DIB”) on January 10, 2014, alleging disability beginning June 18, 2013. (Tr. 24, 62). The Social Security Administration (“SSA”) initially denied the claim on March 4, 2014. (Tr. 24, 62). On December 7, 2015, the ALJ determined that Plaintiff was not disabled under Sections 216(i) and 223(d) of the Social Security Act. (Tr. 32).

         On February 1, 2016, Plaintiff requested review of the ALJ's decision from the Appeals Council. (Tr. 19-20). On April 13, 2016, [1] Plaintiff, through his attorney, submitted new medical evidence to the Appeals Council. (Tr. 193). The Appeals Council added the evidence submitted on April 13, 2016 to the record, and that evidence is not the focus of the motion currently before this court. (Tr. 6). The Appeals Council summarily denied Plaintiff's request for review on July 15, 2016. (Tr. 1-3). Following that denial, the final decision of the Commissioner became a proper subject of this court's appellate review. See Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986) (finding the ALJ decision final for purposes of judicial review when the Appeals Council denied review).

         Plaintiff was 60 years old at the alleged onset of his disability, and 62 at the time of the ALJ's December 7, 2015 decision. (Tr. 30; Pl. Br. 6). Plaintiff has a high school education and worked for all relevant periods as a garbage collector driver (DOT Code 905.663-010). (Tr. 30, 52, 131-36). The ALJ found Plaintiff to have the following severe impairments: narcolepsy without cataplexy, diabetes mellitus, and osteoarthritis. (Tr. 26, 67, 164). Plaintiff has not engaged in substantial gainful activity since June 18, 2013, when his narcolepsy allegedly caused an accident while Plaintiff was driving a garbage truck. (Tr. 26, 50-51, 124).

         Plaintiff claims that his narcolepsy causes extreme tiredness at least three times a day. (Tr. 53). Before being diagnosed and prescribed medication, Plaintiff had no indication that these episodes would overtake him, or that they may cause a vehicle accident. (Tr. 51). With medication, however, Plaintiff is alerted to when his narcolepsy may overtake him, giving him time to pull over (if driving) and retire for a 30-minute nap to remedy the extreme tiredness. (Tr. 53-54). Plaintiff saw Dr. Ozgun for the narcolepsy once every 3-4 months. (See Tr. 298-99). Dr.Ozgun recommended that Plaintiff plan an afternoon nap of 15-30 minutes to relieve symptoms not remedied by his prescribed medications. (Tr. 302).

         The Commissioner assigned Plaintiff a residual functional capacity (“RFC”) of medium work, with the exception that he is prohibited from all exposure to moving hazards and heavy machinery. (Tr. 68-71). The non-examining state agency physicians agreed with the RFC based on the medical records from the sleep specialist Dr. Ozgun and the primary care physician Dr. Thomas C. Pendleton. (Tr. 63-72). It was determined that Plaintiff could not return to his former job. (Tr. 30). However, the vocational expert (“VE”) opined that Plaintiff enjoyed alternative avenues of employment which could be performed by someone cleared to work at the medium level of employment with the restrictions resulting from his medical diagnosis of narcolepsy. (Tr. 57-59). Additionally, the Commissioner found that Plaintiff's claims regarding his exertional limitations were not credible because of information found in his Functional Report. (Tr. 29). The ALJ discounted Plaintiff's credibility in part because the Functional Report indicated that he continued to drive and do activities such as take his granddaughter to school, go to church, and other errands. (Tr. 157). Therefore, based on Plaintiff's residual functional capacity, the VE's recommendation of available work, and the discounted credibility determination based on the Functional Report, the Commissioner found that Plaintiff was not disabled. (Tr. 32).

         Importantly, the record before the ALJ contained very little relevant medical evidence concerning Plaintiff's arthritis/osteoarthritis. The non-examining state agency physicians agreed with the medium level employment RFC assigned to Plaintiff, stating that Plaintiff could occasionally lift 50 pounds and frequently lift 25 pounds. (Tr. 69).[2] At that time, the ALJ's RFC analysis was supported by substantial evidence because there was no medical evidence in the record relating to the osteoarthritis or the physical limitations the condition allegedly imposed on Plaintiff. Indeed, the treatment notes suggested that Plaintiff had full range of motion and could exercise five times a week. (Tr. 28).

         After the ALJ found that Plaintiff was not disabled, Plaintiff submitted new evidence to the Appeals Council from Dr. Snow, which related exclusively to his arthritis/osteoarthritis condition affecting his knees and shoulders. (Tr. 340-351). The medical reports submitted to the Appeals Council indicated that Plaintiff has consistently complained of shoulder pain and knee pain to Dr. Snow. (Tr. 347). No medical records from Dr. Snow were present in the record prior to the Appeals Council review.

         Dr. Snow saw Plaintiff six times between June 21, 2012 and October 12, 2015. (Tr. 343-47). Plaintiff's shoulders caused him pain due to crepitation, and Dr. Snow reported that his range of motion was limited. (Tr. 343-47). With regard to Plaintiff's knee, Dr. Snow's records stated on June 21, 2012, “I will see him back in 1-3 months if he wishes to consider something else on his knee. He might want to investigate to see if there is anything could be done short of a total knee. However, probably he would need a total knee.” (Tr. 347). The Motion now before the court requests to introduce new medical evidence[3] showing that Plaintiff underwent surgery for a total knee replacement on April 11, 2017. (Doc. # 18-1 at 2).

         II. Standard of Review

         When a claimant presents new evidence first to the district court, the court cannot consider the new evidence for the purposes of a sentence four remand because “a reviewing court is limited to the certified administrative record in examining the evidence;” however, a federal court should remand a case to the Commissioner to consider such evidence if a claimant makes a sufficient showing under sentence six. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1267-68 (11th Cir. 2007); see also Caulder v. Bowen, 791 F.2d 872, 876 (11th Cir. 1986) (“[A]lthough the federal court does not examine evidence that was not considered during administrative proceedings, it should remand a case to the Secretary to consider such evidence if a claimant makes a sufficient showing [under sentence six].”).

         To obtain a remand under sentence six of 42 U.S.C. § 405(g), a claimant must establish that: (1) the evidence is new and noncumulative; (2) the evidence is “material, ” such that there exists a reasonable possibility of changing the administrative result; and (3) good cause exists for the failure to submit the evidence at the administrative level. Caulder, 791 F.2d at 877; see also Ingram, 496 F.3d at 1267 (“A remand to the Commissioner is proper under sentence six when new material evidence that was not incorporated into the administrative record for good cause comes to the attention to the district ...

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