April 4, 2013
MATTHEW LEE OVERBY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,  Defendant.
REPORT AND RECOMMENDATION
EARL S. HINES, Magistrate Judge.
The Commissioner of Social Security ("Commissioner") denied Matthew Lee Overby's application for disability insurance benefits under the Social Security Act. In this action for judicial review under 42 U.S.C. § 405(g), the sole issue is whether the court should remand the case and order additional evidence to be taken before the Commissioner.
I. Procedural Background
On May 1, 2010, Overby protectively applied for disability insurance benefits. He claimed disability beginning on July 18, 2009, due to a discogenic and degenerative back disorder. (T. 16, 71). Following an evidentiary hearing, an administrative law judge, Mary Sparks ("ALJ Sparks"), denied Overby's application on July 25, 2011. (T. 16-24). After unsuccessfully requesting Appeals Council review, Overby timely instituted this proceeding. (Dkt. No. 1).
II. Commissioner's Decision
When adjudicating Overby's claim, ALJ Sparks utilized a five-step sequential evaluation procedure prescribed by regulation and approved by courts as a fair and just way for determining disability applications in conformity with the Social Security Act. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461 (1983)). A full discussion of the Commissioner's five-step process is contained in Christiana v. Commissioner of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).
ALJ Sparks determined that Overby carried his Step 1 burden to show that he has not engaged in substantial gainful activity since his alleged onset of disability, and also met his Step 2 burden to show that he has a "severe" impairment consisting of minimal diffuse spondylosis.  (T. 18). At Step 3, ALJ Sparks found that Overby did not prove that his impairment meets or equals a presumptively disabling condition. Id. 
Given these initial findings, ALJ Sparks was required to next assess Overby's "residual functional capacity" before proceeding to remaining steps. In that respect, she found that Overby's ability to perform work-related activities is reduced by his impairment to the "sedentary" exertional level with several additional limitations. (T. 19-22).
At Step 4, ALJ Sparks determined whether Overby's impairments prevent him from performing his past relevant work. Overby's past relevant work included occupations as a resident supervisor, warehouse worker, repairer of manufactured homes, and cashier with stocking responsibilities. (T. 57-58). Toward this end, ALJ Sparks obtained and relied up evidence from a vocational expert, David Sypher ("VE Sypher"). ALJ Sparks posed a hypothetical question that asked VE Sypher to state whether an individual with the same residual functional capacity and limitations as ascribed to Overby could perform any of his past relevant work. (T. 63). VE Sypher testified that an individual with such restrictions can still perform work as a resident supervisor as that occupation is defined in the Dictionary of Occupational Titles ("DOT") Code 187.167-186. Id.
ALJ Sparks accepted this testimony as credible; found that Overby can still perform past relevant work as resident supervisor; and, accordingly, concluded that he was not disabled. (T. 23). Overby's application for benefits was, therefore, denied. (T. 24).
III. Request For Remand
Overby does not challenge ALJ Sparks's findings and conclusions. Instead, Overby proffers additional evidence - submitted for the first time to this court - and requests remand for consideration of that evidence:
The decision should be remanded based upon the new and material evidence attached hereto as this evidence warrants changing the Administrative Law Judge's decision.
(Dkt. No. 10, p. 1).
The additional evidence in question relates to medical treatment for low back pain during the period between January and March, 2010. It consists of treatment notes pertaining to eleven visits with Dr. William J. Kowalski, D.C., between January 24, 2010, and March 12, 2010. It also contains a physical capabilities evaluation by Dr. Kowalski dated March 12, 2010. ( See Attachment to Dkt. No. 10, at pp. 1-7). Overby argues that this evidence is contraindicative of his residual functional capacity as assessed by ALJ Sparks. Hence, it warrants remand. (Dkt. No. 10, p. 3).
In response, the Commissioner contends that the now-proffered evidence does not warrant remand because it does not meet statutory requirements for remand. (Dkt. No. 11, at pp. 6-10. Specifically, the Commissioner argues that the evidence is not "new;" it is not "material;" and no "good cause" exists for failing to incorporate such evidence into the record in the prior administrative proceeding. Id.
IV. Governing Legal Principles
Judicial review of final decisions of the Commissioner is authorized in 42 U.S.C. § 405(g). The sixth sentence of that section provides:
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). To satisfy this statutory requirement, one must show that newly-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 claimant's application differently. Finally, a claimant must show (3) good cause for failure to present the evidence earlier.
Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal citations omitted); see also Mulrain v. Commissioner of Soc. Sec., 431 Fed.App'x 38, 39 (2d Cir. 2011); Lisa v. Secretary of Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991).
As one court put it facilely, to obtain a sentence six remand for taking of additional evidence, a claimant must satisfy a "conjunctive threefold requirement." Cruz-Santos v. Callahan, No. Civ. A. 97-439, 1998 WL 175936, at *2 (D. N.J. Apr. 7, 1998). In other words, remand for taking of additional evidence is required only when a claimant satisfies all three criteria. See id ; see generally Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (three-pronged requirement for sentence six remand). Thus, even when newly-proffered evidence passes muster under the first two prongs ("new" and "material"), but fails under the third prong ("good cause"), reviewing courts do not require the Commissioner to consider the new evidence on remand.
V. Application and Analysis
The most significant aspect of the now-proffered evidence is Dr. Kowalski's physical capabilities evaluation dated March 12, 2010. Therein, Dr. Kowalski opined that Overby is capable of only working four hours per day, three days per week. And, even then, he can only occasionally (a) lift and/or carry twenty pounds, (b) push and/or pull ten pounds, and (c) climb, bend, stoop, kneel, crouch, crawl and reach. Dr, Kowalski opined that Overby can frequently perform fine manipulation, grasping, feeling, and keying; but is never capable of balancing, overhead lifting or working on ladders. ( See Attachment to Dkt. No. 10, at p. 1).
A. Colorable Showing of New and Material Evidence
Although the Commissioner forcefully disagrees, Overby can mount colorable arguments that this evidence is new and material. While the existing record contains extensive medical evidence concerning Overby's low back condition during the same period of time, including some evidence from Dr. Kowalski,  the now-proffered evidence is not duplicative, and it was not made available to ALJ Sparks at the time she made her decision. It is relevant and probative. Finally, its import is such that were the Commissioner to accept it as credible and persuasive, there is a reasonable possibility that it would influence the Commissioner to decide Overby's application differently. Stated more precisely, there is a reasonable possibility that a person who can work only four hours a day, no more than three days a week, would be found disabled. This is because residual functional capacity is premised on one's ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, defined as 8 hours a day, for 5 days a week, or an equivalent work schedule. See 20 C.F.R. § 1545(b), (c); see also 96-SSR 8p, TITLE II AND XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, 61 Fed. Reg. 34474, 1996 WL 374184, at *2 (S.S.A. July 2, 1996).
The court need not, however, resolve the parties' disputes as to whether the now-proffered evidence is new ( i.e., non-cumulative) and material. As the next section demonstrates, Overby's proffered evidence clearly does not meet the third prong of the Tirado test, even if it satisfies the first two parts.
B. No Showing of Good Cause
Congress amended the sixth sentence of Section 405(g) in 1980, and, in so doing made it "unmistakably clear that it intended to limit the power of district courts to order remands for new evidence' in Social Security cases." See Melkonyan v. Sullivan, 501 U.S. 89, 100-01 (1991). It added requirements that remands for the purpose of taking new evidence be limited to cases where there is new, material evidence, and good cause for failure to incorporate it into the record in a prior proceeding. Id. (quoting S.Rep. No. 96-408, pp. 58-59 (1979); see also H.R.Rep. No. 96-100, p. 13 (1979), U.S.Code Cong. & Admin.News 1980, pp. 1277, 1336-1337. Congress thus reaffirmed and strengthened its intent that decisions of the Commissioner be final except in limited circumstances. See Firpo v. Chater, 100 F.3d 943, 1996 WL 49258, at *3 (2d Cir. 1996) ("[c]oncerns for finality dictate that claimants be given a single opportunity to prove their entitlement to benefits for a particular period"); Tirado, 842 F.2d at 596 ("claimants ordinarily should have but one opportunity to prove entitlement to benefits, otherwise disability administrative proceedings would be an unending merry-go-round with no finality to administrative and judicial determinations").
A plaintiff seeking judicial review might adequately explain failure to incorporate proffered evidence into an original administrative record in any number of ways. A few obvious examples would be (1) if the evidence were not in existence or available to a claimant at the time of the administrative proceeding, (2) if a claimant were not aware of it, not because of carelessness, inattention or willful disregard, but because of some unexpected or unavoidable hindrance or accident, or (3) if mental incompetence or other dire personal circumstances placed a claimant in no position to present the evidence.
Here, however, Overby makes no effort to provide any explanation. Instead, Overby's current counsel merely states that an explanation as to why this evidence was not submitted to ALJ Sparks prior to her hearing decision or even to the Appeals Council " cannot be given as our representation did not begin until 3/28/12, after the Appeals Council denial." (Dkt. No. 10, at pp. 3-4) (emphasis added).
The additional treatment notes of Dr. Kowalski and his physical capacity evaluation all were completed more than a year before the administrative hearing and ALJ Sparks's decision. Overby and his counsel had almost two years to present this evidence to the Appeals Council, which did not issue its decision until February 2012. (T. 1-8). Neither Overby nor his former attorney submitted the records to ALJ Sparks or to the Appeals Council despite there being ample time to do so. No good cause for failing to incorporate the proffered evidence into the administrative record at the time of the administrative proceeding can be discerned from these plain facts.
Viewed most favorably to Overby, there is an implicit suggestion that Overby should be excused from failing to present the evidence at the administrative hearing because he relied on care and vigilance of his former counsel to present proper evidence at the proper time. Such may well have been the case here, but, standing alone, a previous attorney's omissions do not establish good cause to obtain a Sixth Sentence remand. By the same token, mere diligence and competent representation by a successor counsel automatically does not cure or excuse earlier defaults. To hold otherwise, would invite mischief in the form of unsanctioned back door appeals that undermine Congress's intent to promote finality when enacting § 405(g).
Because Overby offers no other explanation as to why the now-proffered records were not timely submitted during the administrative proceedings, he fails to carry his burden to show good cause. Overby's proposed additional evidence, therefore, fails to satisfy the statutory requirement of good cause as set forth in 42 U.S.C. § 405(g). A sentence-six remand is unwarranted. See Schaal v. Apfel, 134 F.3d 496, 506 (2d Cir. 1998). No good cause is shown for failing to incorporate the proffered evidence into the administrative record at the time of the administrative proceeding.
Plaintiff's request to remand this action and order that additional evidence be taken before the Commissioner should be DENIED. The Commissioner's decision should be AFFIRMED.
Parties have fourteen (14) days to file specific, written objections to the Report and Recommendation. Such objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THE REPORT, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Thomas v. Arn, 474 U.S. 140, 155 (1985); Graham v. City of New York, 443 Fed.App'x 657, 658 (2d Cir. 2011); FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c).