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SCHAFFER v. APFEL

December 1, 1997

ARTHUR R. SCHAFFER, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: HECKMAN

 In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of judgment. Plaintiff initiated this action to seek review of the final decision of the Commissioner of Social Security (the "Commissioner") *fn1" denying his application for Supplemental Security Income ("SSI") benefits, and the Commissioner has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). For the following reasons, the Commissioner's motion is denied.

 BACKGROUND

 Plaintiff was born on April 25, 1948 (T. 36, 72). *fn2" He has a general equivalency high school diploma, and took some business courses at a community college. He has past relevant work experience as a self-employed contractor and a maintenance worker. He stopped working in June, 1991 when he was laid off from his job as a maintenance supervisor at a nursing home (T. 38, 102).

 On January 24, 1994, plaintiff applied for SSI benefits. He alleged disability as of October 1, 1992 due to "diabetes and related complications of leg pain . . . fatigue [and] dizziness" (T. 98). His application was denied initially and on reconsideration. On August 21, 1995 a hearing was held before Administrative Law Judge ("ALJ") Bruce Mazzarella. Plaintiff testified and was represented by counsel (T. 30-71).

 On September 24, 1996, the ALJ's decision became the final determination of the Commissioner when the Appeals Council denied plaintiffs request for review (T. 4-5). On November 25, 1996, plaintiff filed this action pro se for judicial review of the Commissioner's determination.

 On June 16, 1997, the government moved for judgment on the pleadings, in accordance with Fed.R.Civ.P. 12(c), on the ground that the Commissioner's determination is supported by substantial evidence in the record. On September 4, 1997, oral argument on the government's motion was heard by the undersigned. Plaintiff appeared pro se. He advised the court that he was scheduled for a neurological evaluation in the near future, and requested the opportunity to submit the report of that evaluation as additional medical evidence in support of his claims in this case. The court granted plaintiff's request, and allowed the government to file a response.

 The court has received the additional materials submitted by plaintiff (Item 14) and the government's memorandum in response (Item 15). For the following reasons, the government's motion for judgment on the pleadings is denied, and the case is remanded to the Commissioner.

 DISCUSSION

 The Social Security Act provides that upon judicial review of a denial of claim for SSI or disability insurance benefits 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). This procedure, referred to as a "sentence six remand," see Shalala v. Schaefer, 509 U.S. 292, 297-98, 125 L. Ed. 2d 239, 113 S. Ct. 2625 (1993), is only appropriate when the claimant has demonstrated the following:

 
That the proffered evidence is (1) "'new' and not merely cumulative of what is already in the record," and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. . . . The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide [the] claimant's application differently. Finally, [the] claimant must show (3) good cause for [his or] her failure to present the evidence earlier.

 Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)(quoting Szubak v. Secretary of Health & Human Services, 745 F.2d 831, 833 (3d Cir. 1984); also citing Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975), and Tolany v. Heckler, 756 F.2d 268, 272 (2d Cir. 1985)); see also Fragale v. Chater, 916 F. Supp. 249, 255 (W.D.N.Y. 1996).

 In this case, plaintiff has submitted a report from Dr. Tomas Holmlund of the Dent Neurologic Institute to Dr. Steven Flaschner, plaintiff's treating physician. Dr. Flaschner referred plaintiff to Dr. Holmlund for a neurologic evaluation, which took place ...


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