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Starling v. Colvin

United States District Court, W.D. North Carolina, Asheville Division

September 8, 2014

CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.



THIS MATTER is before the Court on the Plaintiff's Motion to Receive New and Material Evidence and Remand Case [Doc. 11], the Defendant's Response to Plaintiff's Motion to Receive New and Material Evidence and Remand Case [Doc. 15], the Plaintiff's Motion for Summary Judgment [Doc. 13], and the Defendant's Motion for Summary Judgment [Doc. 16].


The Plaintiff Lora Starling filed an application for disability insurance benefits and supplemental security income on February 27, 2009, alleging that she had become disabled as of June 1, 2008. [Transcript ("T.") 146-58, 194]. The Plaintiff's application was denied initially [T. 106-07, 120-24] and on reconsideration [T. 108-09, 118-19, 129-34]. The Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which occurred on October 6, 2010. [T. 51-97]. The Plaintiff amended her onset date to November 24, 2008 at her hearing. [T. 57]. On December 20, 2010, the ALJ issued an unfavorable decision. [T. 25-35]. On August 27, 2012, the Appeals Council denied the Plaintiff's request for review, thereby making the ALJ's decision the final decision of the Commissioner. [T. 1-3]. The Plaintiff has exhausted all available administrative remedies, and this case is now ripe for review pursuant to 42 U.S.C. § 405(g).


The Court's review of a final decision of the Commissioner is limited to (1) whether substantial evidence supports the Commissioner's decision, Richardson v. Perales, 402 U.S. 389, 401 (1971), and (2) whether the Commissioner applied the correct legal standards, Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). The Court does not review a final decision of the Commissioner de novo. Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986).

The Social Security Act provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C. § 405(g). The Fourth Circuit has defined "substantial evidence" as "more than a scintilla and [doing] more than creat[ing] a suspicion of the existence of a fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Smith v. Heckler, 782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Perales, 402 U.S. at 401).

The Court may not re-weigh the evidence or substitute its own judgment for that of the Commissioner, even if it disagrees with the Commissioner's decision, so long as there is substantial evidence in the record to support the final decision below. Hays, 907 F.2d at 1456; Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).


The Plaintiff seeks consideration of new evidence in this case, particularly the fully favorable decision which was later issued as effective one day after the first ALJ's decision, and six exhibits of the Plaintiff's medical records subsequent to the date of her hearing. [Docs. 11-12]. The Plaintiff argues that such evidence is new and material evidence that should be considered in this Court's evaluation of the appeal of the ALJ's unfavorable decision. [Id.].

According to the sixth sentence of 42 U.S.C. § 405(g), the Court "may... at any time order additional evidence to be taken before the Secretary, 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..." Evidence is new if it is not "duplicative or cumulative, " Wilkins v. Secretary, Dep't of Health & Human Servs., 953 F.2d 93 (4th Cir. 1991), and it is material "if there is a reasonable possibility that the new evidence would have changed the outcome." Id. at 96. Although evidence does not have to have existed during the period under consideration by the instant case's ALJ, it must relate to that period, Jackson, 1:09CV467, 2011 WL 2694623 at *2 (citing Bradley v. Barnhart, 463 F.Supp.2d 577 (S.D. W.Va. 2006)), and must "bear directly and substantially on the matter in dispute." Jackson, 1:09CV467, 2011 WL 2694623 at *2 (quoting Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001)).

As noted by the Fourth Circuit, "[a] subsequent favorable decision itself, as opposed to the evidence supporting the subsequent decision, does not constitute new and material evidence under § 405(g)." Baker v. Comm'r of Soc. Sec., 520 F.Appx. 228, 229 (4th Cir. 2013) (quoting Allen v. Commissioner, 561 F.3d 646, 653 (6th Cir. 2009)). When "disability is found upon subsequent applications on substantially the same evidentiary background as was considered with respect to prior applications without such occurrences [, ]... the disability onset date might reasonably be sometime prior to the ALJ's decision respecting the prior applications in view of a subsequent finding of disability." Reichard v. Barnhart, 285 F.Supp.2d 728, 736 n. 9 (S.D. W.Va. 2003).

Here, the subsequent favorable determination of the Plaintiff's disability was based upon medical record of evidence, all of which was dated after the initial unfavorable decision was rendered. [Doc. 11-1]. Notably, the favorable determination references medical record evidence from December 22, 2011 through February 15, 2013, well after the time period for which evidence was gathered for the initial determination on December 20, 2010. [Id.]. The evidentiary background for the subsequent favorable decision was entirely distinguishable from the evidence for the initial unfavorable decision. Reichard, 285 F.Supp.2d at 736. The Plaintiff asserts that "the same physical and mental limitations experienced by the Plaintiff during the time of the case now under review, existed at the earlier time, " but has failed to demonstrate how the required elements of newness and materiality are present for the subsequent decision. [Doc. 12, 7]. Thus, the subsequent favorable decision for the Plaintiff will not be considered in this case and the initial decision will not be remanded on the basis of the subsequent favorable decision.

The new medical evidence which the Plaintiff seeks to submit in this case includes (1) an examination report by Stephen Burgess, M.D., Ph.D., dated January 30, 2013; (2) a psychological assessment by Mindy Pardoll, Psy.D., dated January 15, 2013; (3) an admission note from Neil Dobbins Center dated December 21, 2011; (4) an emergency room report by William T. Sither, M.D., dated June 25, 2012; (5) an admission note by Dale Nash, M.D., of Transylvania Regional Hospital on July 21, 2012; and (6) an admission note to Broughton Hospital on August 6, 2012. [Doc. 11]. Each of these medical exhibits dates substantially later than October 6, 2010, the date of the Plaintiff's initial ALJ hearing. The Plaintiff suggests that the medical evidence relates to the same physical and mental limitations of the Plaintiff during her initial case and merely more "precisely" and "accurately" documents her limitations for which she was unable to seek treatment at the time of her first hearing. [Doc. 12 at 5, 7]. The Plaintiff's counsel, however, has failed to articulate specifically how the required elements of newness and materiality are present in the six medical exhibits. [Doc. 12]. Although the ...

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