United States District Court, N.D. Alabama, Middle Division
MICHAEL PUTNAM UNITED STATES MAGISTRATE JUDGE
plaintiff, Stephanie Freeman, appeals from the decision of
the Commissioner of the Social Security Administration
(“Commissioner”) denying her application for a
period of disability, Disability Insurance Benefits
(“DIB”), and Supplemental Security Income
(“SSI”). Ms. Freeman timely pursued and exhausted
her administrative remedies, and the decision of the
Commissioner is ripe for review pursuant to 42 U.S.C. Â§'
405(g), 1383(c)(3). Additionally, on June 7, 2018, the
plaintiff filed a motion for remand of this matter to the
Commissioner pursuant to Sentence Six of 42 U.S.C. §
405(g), based upon a favorable decision entered in the
plaintiff's favor by a different administrative law judge
in a subsequently-filed disability application. (Doc. 19). A
copy of that decision by another ALJ is attached to the
motion. (Doc. 19-1). The government has filed a brief in
opposition. (Doc. 20).
parties have consented to the jurisdiction of the undersigned
magistrate judge pursuant to 28 U.S.C. § 626(c).
Freeman was 38 years old at the time of the Administrative
Law Judge's (“ALJ's”) decision. Although
she dropped out of school in the ninth-grade, she later
received her GED. (Tr. at 44, 57). Her past work experiences
include work as a janitor, a cashier, an assembly-line
worker, and a mental health technician. (Tr. at 28). Ms.
Freeman claims that she became disabled on December 14, 2012,
due to depression, anxiety, back pain, leg pain, and bladder
problems. (Tr. at 228).
evaluating the disability of individuals over the age of
eighteen, the regulations prescribe a five-step sequential
evaluation process. See 20 C.F.R. ''
404.1520, 416.920; see also Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001). The first step requires a
determination of whether the claimant is “doing
substantial gainful activity.” 20 C.F.R. ''
404.1520(a)(4)(i), 416.920(a)(4)(i). If she is, the claimant
is not disabled and the evaluation stops. Id. If she
is not, the Commissioner next considers the effect of all of
the physical and mental impairments combined. 20 C.F.R.
'' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational
requirements before a claimant will be found to be disabled.
Id. The decision depends upon the medical evidence
in the record. See Hart v. Finch, 440 F.2d 1340,
1341 (5th Cir. 1971). If the claimant's impairments are
not severe, the analysis stops. 20 C.F.R. ''
404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the
analysis continues to step three, which is a determination of
whether the claimant's impairments meet or equal the
severity of an impairment listed in 20 C.F.R. pt. 404,
Subpart P, Appendix 1. 20 C.F.R. ''
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
claimant's impairments fall within this category, she
will be found disabled without further consideration.
Id. If she does not, a determination of the
claimant's residual functional capacity
(“RFC”) will be made and the analysis proceeds to
the fourth step. 20 C.F.R. '' 404.1520(e),
416.920(e). Residual functional capacity is an assessment
based on all relevant evidence of a claimant's remaining
ability to do work despite her impairments. 20 C.F.R.'
fourth step requires a determination of whether the
claimant's impairments prevent her from returning to past
relevant work. 20 C.F.R. '' 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant can still do her past
relevant work, the claimant is not disabled and the
evaluation stops. Id. If the claimant cannot do past
relevant work, then the analysis proceeds to the fifth step.
Id. Step five requires the court to consider the
claimant's RFC, as well as the claimant's age,
education, and past work experience, in order to determine if
she can do other work. 20 C.F.R. ''
404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do
other work, the claimant is not disabled. Id. The
burden of demonstrating that other jobs exist which the
claimant can perform is on the Commissioner; and, once that
burden is met, the claimant must prove her inability to
perform those jobs in order to be found to be disabled.
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
the sequential evaluation process, the ALJ found that Ms.
Freeman has not been under a disability within the meaning of
the Social Security Act from the alleged date of onset
through the date of his decision. (Tr. at 28). Although he
determined that Ms. Freeman has not engaged in substantial
gainful activity since the alleged onset of her disability
(Tr. at 18), the ALJ found that Ms. Freeman's
degenerative disc disease and arthritis of the L5-S1 joint
and facet joints may be considered “severe” based
on the requirements set forth in the regulations. (Tr. at
18-10). He further determined that these impairments neither
meet nor medically equal any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 21). The ALJ
did not find Ms. Freeman's allegations of the disabling
effects of her impairments to be entirely credible. (Tr. at
28). He determined that the plaintiff has the residual
functional capacity to perform medium work with the following
limitations: that she can sit at least two hours without
interruption and six hours in an eight-hour workday; can
stand and/or work at least two hours without interruption and
a total of at least six hours in an eight-hour workday;
cannot climb ladders, ropes, poles, or scaffolds; can
occasionally climb ramps and stairs; can frequently use her
upper extremities for reaching overhead; can frequently use
her lower extremities for pushing, pulling, and operating
foot controls; can frequently balance, stoop, kneel, and
crouch; can occasionally crawl; can occasionally work in
humidity, wetness, and extreme temperatures; can occasionally
work in dust, gases, odors and fumes; cannot work in poorly
ventilated areas; cannot work at unprotected heights; cannot
work with operating hazardous machinery; can frequently work
while exposed to vibration; can frequently operate motor
vehicles. (Tr. at 21).
to the ALJ, Ms. Freeman is able to perform past relevant work
as a production assembler, mental health technician, cashier,
and industrial cleaner. (Tr. at 28). The ALJ concluded his
findings by stating that Plaintiff is “not
disabled” under the Social Security Act. (Tr. at 28).
Standard of Review
court's role in reviewing claims brought under the Social
Security Act is a narrow one. The scope of its review is
limited to determining (1) whether there is substantial
evidence in the record as a whole to support the findings of
the Commissioner, and (2) whether the correct legal standards
were applied. See Richardson v. Perales, 402 U.S.
389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual
findings of the Commissioner with deference, but applies
close scrutiny to the legal conclusions. See Miles v.
Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The Court
may not decide facts, weigh evidence, or substitute its
judgment for that of the Commissioner. Id.
“The substantial evidence standard permits
administrative decision makers to act with considerable
latitude, and ‘the possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency's finding from being supported
by substantial evidence.'” Parker v.
Bowen, 793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J.,
dissenting) (quoting Consolov.Fed.Mar.Comm'n,
383 U.S. 607, 620 (1966)). Indeed, even if this Court finds
that the evidence preponderates against the
Commissioner's decision, the court must affirm if the
decision is supported by substantial evidence.
Miles, 84 F.3d at 1400. No decision is automatic,
however, for “despite this deferential standard [for
review of claims] it is imperative that the Court scrutinize
the record in its entirety to determine the reasonableness of
the decision reached.” Bridges v. Bowen, 815
F.2d 622, 624 (11th Cir. 1987). Moreover, failure to apply
the correct legal standards is grounds for reversal. See
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
threshold matter, the court is required to examine the
Plaintiff's motion to remand this case to the
Commissioner under Sentence Six of § 405(g). In her
motion filed June 7, 2018, the Plaintiff points out that
after the denial of disability benefits in the instant case
on July 28, 2015, a different ALJ in a different application
granted her disability benefits on June 4, 2018, finding her
disabled from and after an onset date of August 6,
2015. Ms. Freeman contends that this fully
favorable decision constitutes “new evidence”
that was not available to her at the time she sought benefits
in the instant matter. She notes that, in awarding her
disability benefits beginning on August 6, 2015, the ALJ in
the other case relied upon an evaluation by the
Plaintiff's physician dated November 13, 2014, which is
the same evaluation report considered by the ALJ in the
instant case in which disability benefits were denied. She
appears to argue that the fact of this fully favorable
decision finding her disabled as of August 6, 2015, should be
considered in this case as “new evidence” that,
in fact, she was disabled on July 28, 2015, when she received
the unfavorable determination in the instant case.
six of § 405(g) authorizes the district court to remand
a case to the Commissioner “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);
see Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir.
1996). The court of appeals has explained that a Sentence Six
remand is not contingent upon the district court finding
error by the Commissioner. “A sentence-six remand does
not result from any error by the Commissioner. A sentence-six
remand is warranted even in the absence of any error by the
Commissioner if new, material evidence becomes available to a
claimant, and the claimant could not have presented that
evidence at his original hearing.” Jackson v.
Chater, 99 F.3d 1086, 1095 (11th Cir. 1996). The purpose
of a Sentence Six remand is to allow the Commissioner to
consider “new” and “material”
evidence not available at the time of the Commissioner's
determination. Assuming “new” and
“material” evidence of disability is developed
after the Commissioner's determination, the district
court may order a remand to the Commissioner for
consideration of such evidence, while retaining jurisdiction
of the case for review after reconsideration by the
Commissioner. See Ingram v. Comm'r of Soc. Sec.
Admin., 496 F.3d 1253, 1261 (11th Cir. 2007)
(“[S]entence six is appropriate for the Commissioner to
consider new evidence that the Commissioner did not have an
opportunity to consider because the evidence was not properly
submitted to the Appeals Council.”).
the fully favorable decision dated June 4, 2018, was not
available for consideration by the Commissioner at the time
of the final determination in this case, there is no question
that it is “new” and “there is good cause
for the failure to incorporate such evidence into the record
in a prior proceeding.” The issue is whether the fact
of the fully favorable determination is evidence that is
“material” to the earlier determination made in
instant case. To be “material” for purposes of
triggering a Sentence Six remand, the new evidence must be
“relevant and probative so that there is a reasonable
possibility that it would change the administrative
result….” Caulder v. Bowen, 791 F.2d
872, 877 (11th Cir. 1986). The court believes it is not.
clear, the “new” evidence advanced here by Ms.
Freeman is the simple fact of the subsequent favorable
decision made in another application for benefits was a
different onset date. Her motion for remand pursuant to
Sentence Six states plainly:
Plaintiff moves to remand this claim pursuant to Sentence Six
of 42 U.S.C. §405(g) based on a subsequent Favorable
Decision with an onset date just after the ALJ denial and
based on the issues previously raised. A subsequent Fully
Favorable decision was issued on 6/4/18 with
an onset date of 8/6/15. [Citation to
The ALJ issued an Unfavorable Decision on 7/28/15. (R-13-39)
The subsequent Fully Favorable decision [Citation to exhibit
omitted] was not available prior to filing the lawsuit.
Because the evidence is new, it ...