Filed: Mar. 27, 2009
Latest Update: Mar. 02, 2020
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0119p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - ALMON DALE ALLEN, - Plaintiff-Appellant, - - No. 08-5342 v. , > - - COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. - Michael J. Astrue, Commissioner, - N Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 07-00049—Edward H. Johnstone, District Judge. Submitted: October 31, 2008 Decided and F
Summary: RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 09a0119p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _ X - ALMON DALE ALLEN, - Plaintiff-Appellant, - - No. 08-5342 v. , > - - COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. - Michael J. Astrue, Commissioner, - N Appeal from the United States District Court for the Western District of Kentucky at Paducah. No. 07-00049—Edward H. Johnstone, District Judge. Submitted: October 31, 2008 Decided and Fi..
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0119p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
ALMON DALE ALLEN,
-
Plaintiff-Appellant,
-
-
No. 08-5342
v.
,
>
-
-
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee. -
Michael J. Astrue, Commissioner,
-
N
Appeal from the United States District Court
for the Western District of Kentucky at Paducah.
No. 07-00049—Edward H. Johnstone, District Judge.
Submitted: October 31, 2008
Decided and Filed: March 27, 2009
Before: CLAY, GILMAN, and ROGERS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Craig Housman, HOUSMAN & ASSOCIATES, Paducah, Kentucky, for
Appellant. Jerome M. Albanese, Nancy R. Bartlett, Mary Ann Sloan, Dennis Robert
Williams, Elyse Sara Sharfman, Holly A. Grimes, SOCIAL SECURITY
ADMINISTRATION, OFFICE OF THE GENERAL COUNSEL, Atlanta, Georgia, James
H. Barr, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ROGERS, J., delivered the opinion of the court, in which GILMAN, J., joined.
CLAY, J. (pp. 13-14), delivered a separate dissenting opinion.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Almon Dale Allen applied for and was denied social
security benefits for the period ending September 11, 2006. While attempting to reopen this
initial case, Allen filed a new benefits application and the Social Security Administration
granted Allen benefits beginning September 12, 2006. Allen now appeals the denial of his
1
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 2
first application, claiming that the initial administrative law judge violated agency procedural
regulations by failing to articulate “good reasons” for discounting the opinion of his treating
physician. Alternatively, Allen argues that the subsequent favorable determination serves
as new, material evidence in the initial decision requiring a remand to the agency. Because
the ALJ properly followed the Social Security Administration’s regulations, and because the
subsequent favorable decision, on its own, is not new and material evidence, we affirm the
district court’s decision upholding the Commissioner’s denial of Allen’s initial benefits
request.
I.
A. Initial Decision Denying Benefits
Allen applied for disability insurance benefits on December 6, 2004, claiming that
he became disabled on January 1, 2002, due to degenerative disc disease, neck, back, and
shoulder pain, severe headaches, and leg weakness. The Agency denied Allen’s claim
initially and on rehearing, and Allen requested and was granted a hearing before an
administrative law judge (“ALJ”). On September 11, 2006, the ALJ issued a decision
finding Allen not disabled.
In his decision, the ALJ applied the five-step analysis required by 20 C.F.R.
§ 404.1520(a) to determine if Allen was disabled. As part of the evidence presented, the
ALJ reviewed a letter from Dr. McCord, a physician who began treating Allen in December
2005. Dr. McCord’s letter responded to the following series of questions posed by Allen’s
attorney in an earlier questionnaire:
1. Although Mr. Allen did not begin treatment with you until December 8,
2005 you are aware that his cervical and lumber spine problems are of
longstanding duration, and he previously sought treatment with other
physicians, including Dr. Miranda Gaw, for his complaints of severe pain in
the cervical, lower thoracic and lumbar spine. I have included the progress
notes and MRI scan results from this physician, and upon your review of
those records, would you be able to state that it is reasonable to conclude
that at all times since December 2003, Mr. Allen’s symptoms/conditions
have essentially remained unchanged?
2. With his diagnosed cervical and lumbar spine conditions dating to at least
December 2003, do you believe it reasonable that, as Mr. Allen has stated,
he would have “good” and “bad” days with regard to symptoms, such that
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 3
on “good” days, he can stand “maybe an hour or two” but that on “bad”
days, he has to get off his feet after only 30 minutes or less?
3. With regard to the issue of walking, Mr. Allen states that on “good” days,
he might be able to walk for up to a mile at a time, but that on “bad” days,
he is unable to walk much more than one block. Again, in light of his
diagnosed spine conditions, is it your opinion that such limitations are
credible and reasonable?
4. Mr. Allen has testified when he is having a “bad” day with his neck and
back, estimated to occur at least one or two days per week, he requires
recumbent rest to deal with his pain and would not be able to be up on his
feet for a total of more than four hours in an 8 hour period. Based upon the
results of your examinations and imaging study findings does he have a
spinal condition which is reasonably capable of causing these symptoms as
he describes them?
AR at 270-71. Dr. McCord simply answered “yes” to all of these questions. The ALJ did
not give much weight to Dr. McCord’s letter, stating:
These affirmative answers were not helpful to the undersigned. Dr. McCord
merely affirmed that it might be reasonable to conclude the claimant’s
symptoms had remained unchanged since December of 2003, an opinion the
undersigned found to be speculative since Dr. McCord had not seen the
claimant for the first time until some two years later, on December 8, 2005.
Dr. McCord was also asked to opine whether the claimant’s complaints or
descriptions of his abilities and symptoms are credible. The affirmative
response from Dr. McCord is of no help to the undersigned since the issue
of credibility is reserved to the Commissioner.
AR at 39.
After reviewing all of the evidence and conducting the required analysis, the ALJ
concluded that “the claimant has the residual functional capacity to lift and carry twenty
pounds occasionally and ten pounds frequently. The claimant can stand or walk for six
hours per eight-hour workday and can sit for six hours per workday (with normal breaks).”
AR at 37-38. “[T]he claimant has been capable of making a successful adjustment to other
work that exists in significant numbers in the national economy. A finding of ‘not disabled’
is therefore appropriate.” AR at 40.
Allen requested a review of the ALJ’s decision. On December 14, 2006, the Appeals
Council denied Allen’s request and the ALJ’s decision became the final decision of the
Commissioner. On January 5, 2007, Allen submitted a request to reopen his case to the
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 4
Appeals Council and attached records of neck surgery he underwent on April 19 and 21,
2006. The Appeals Council referred the request to reopen to the ALJ who made the initial
1
decision and extended Allen’s time to file a civil action in district court. On March 26,
2007, Allen filed a complaint in the United States District Court for the Western District
of Kentucky seeking review of the benefits denial. On April 9, 2007, the ALJ denied
Allen’s request to reopen the case based on the newly submitted surgical records.
In his letter denying Allen’s request to reopen the case, the ALJ stated:
The mere occurrence of surgery does not provide a scintilla of evidence
of any negative change in the claimant’s condition. The surgery could
have improved his condition. The claimant and his attorney have failed
to prove any change in his condition which would warrant a change in
any finding pertinent to any matter at issue or in the ultimate decision.
Therefore, the presented evidence is not both “new” and “material” and
does not satisfy the regulatory standard for reopening.
B. Subsequent Decision Granting Benefits
While the initial ALJ’s decision denying benefits was pending before the Appeals
Council, Allen again applied for disability benefits. Allen received a “Notice of Award”
letter dated February 25, 2007, stating that he was found to be disabled starting
September 12, 2006, the day after the ALJ’s initial decision.2 The award letter did not
state the reasons for this disability determination.
1
In a letter to Allen’s attorney notifying him of the referral to the ALJ, the Appeals Council noted
that the surgical records were not timely submitted to the ALJ or the Appeals Council on initial review:
The Appeals Council further notes that the Administrative Law Judge . . . granted the
claimant sufficient time to submit additional evidence, but no evidence other than that
in Exhibit 13F was submitted prior to the September 11, 2006, decision, nearly 5 months
after the hearing. Moreover, no additional evidence was submitted to the Appeals
Council with the November 15, 2006, request for review.
AR at 4.
2
Pursuant to the Social Security Administration’s December 30, 1999, Emergency Message
99147, a subsequent grant of benefits cannot extend earlier than the day after the prior denial. See also
Social Security Administration’s Hearings, Appeals and Litigation Law Manual (“HALLEX”), Volume
I-5-3-17, § I.A. It is this procedure that creates the common “day-later” change in eligibility
determination.
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 5
C. District Court Proceedings
Allen’s motion for summary judgment in the district court seeking remand to the
Commissioner raised three issues:
A. In view of the subsequent favorable determination, effective the day
after Judge Schum’s decision, a sentence 6 remand [under 42 U.S.C.
§ 405(g)] is appropriate.
B. Did the administrative law judge commit legal error by failing to
provide good reasons for disregarding the treating spine specialist’s
verification of Mr. Allen’s limitations?
C. As a matter of affording the Social Security claimant due process, is
the Commissioner required to follow his own rules and base his
determination on a correct understanding of the facts when considering
a request to reopen?
On October 12, 2007, the magistrate judge assigned to this case filed a report and
recommendation rejecting all of Allen’s contentions and upholding the agency’s denial
of benefits. The magistrate judge rejected Allen’s request for remand under sentence six
of § 405(g) because: 1) a subsequent favorable decision, on its own, does not constitute
new and material evidence under § 405(g), and the new determination was likely based
on Allen’s new age category; 2) the surgical records are not material evidence for the
reasons stated in the ALJ’s April 9, 2007, letter denying Allen’s request to reopen the
case; and 3) the raw medical data contained in the surgical records was cumulative of
probative evidence already before the ALJ, and therefore not material.
The magistrate judge also rejected Allen’s second contention, finding that the
ALJ provided good reasons for disregarding Dr. McCord’s questionnaire responses. The
magistrate judge found that the ALJ’s rejection of Dr. McCord’s credibility
determination was appropriate under Social Security regulations and Sixth Circuit
precedent.
Finally, the magistrate judge determined that the district court did not have
subject matter jurisdiction to review Allen’s final claim. The magistrate judge
interpreted this contention as a request for “a judicial remand for the purpose of
requiring the Commissioner to follow his own standards and rules pertaining to
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 6
reopening of prior denial decisions.” The magistrate judge concluded that Allen failed
to show that this claim falls under one of the limited situations where a district court has
the authority to review final decisions of the Commissioner.
On January 16, 2008, the district court adopted the magistrate judge’s report and
recommendation upholding the decision of the Commissioner. Allen appeals.
II.
On appeal, Allen raises arguments based on the first and second contentions in
his district court motion. Allen claims that the initial ALJ violated agency regulations
by failing to articulate “good reasons” for discounting Dr. McCord’s questionnaire
responses, and that the subsequent favorable determination serves as new, material
evidence requiring a remand to the agency under sentence six of § 405(g). The district
court, however, properly found that remand is not appropriate under either of Allen’s
claims.
A.
The ALJ fully satisfied agency procedural requirements by providing good
reasons for discounting Dr. McCord’s questionnaire responses, and therefore remand is
not required for failure to do so. We have remanded cases to the agency when the
agency fails to follow its own regulations by not stating “good reasons” for giving
diminished or no weight to a treating physician’s opinion. See, e.g., Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004); Bowen v. Comm’r of Soc. Sec.,
478
F.3d 742, 746 (6th Cir. 2007). The ALJ in this case accepted some of Dr. McCord’s
opinions, rejected others as speculative, and gave others no weight because they dealt
with decisions reserved exclusively to the Commissioner. The ALJ provided good
reasons to support each of these conclusions.
Social Security regulations require the agency to provide good reasons for the
weight given to a treating physician’s opinion, such as Dr. McCord’s four questionnaire
responses. 20 C.F.R. § 404.1527(d)(2) states that “[w]e will always give good reasons
in our notice of determination or decision for the weight we give your treating source’s
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 7
opinion.” The ALJ provided a good reason for discounting Dr. McCord’s response to
Allen’s first question regarding the persistence of Allen’s condition:
Dr. McCord merely affirmed that it might be reasonable to conclude the
claimant’s symptoms had remained unchanged since December of 2003,
an opinion the undersigned found to be speculative since Dr. McCord
had not seen the claimant for the first time until some two years later, on
December 8, 2005.
While this stated reason may be brief, it reaches several of the factors that an ALJ must
consider when determining what weight to give a non-controlling opinion by a treating
source, including: the length of the treatment relationship and the frequency of
examination, 20 C.F.R. § 404.1527(d)(2)(i); the nature and extent of the treatment
relationship, § 404.1527(d)(2)(ii); and the supportability of the opinion,
§ 404.1527(d)(3).
The magistrate judge properly noted that Dr. McCord’s final three responses
presented the doctor’s opinion3 on two distinct issues: 1) whether Allen’s spinal
condition could reasonably cause the symptoms and limitations described by Allen, and
2) whether these specific symptoms and limitations as described by Allen are credible.
With regard to the first issue of general reasonableness, the ALJ agreed with and
accepted Dr. McCord’s affirmative responses: “After considering the evidence of record,
the undersigned finds that the claimant’s medically determinable impairments could
reasonably be expected to produce the alleged symptoms . . . .”
When evaluating Allen’s statements of subjective pain, however, the ALJ was
required to go further and determine the actual intensity and persistence of Allen’s
symptoms and how these symptoms limit Allen’s ability to work. 20 C.F.R.
§ 404.1529(c) (“When the medical signs or laboratory findings show that you have a
3
In addition to the reasons for discounting Dr. McCord’s responses provided by the ALJ, the
second through fourth responses appear to be outside the scope of “medical opinions” as defined in 20
C.F.R. § 404.1527(a)(2). Section 404.1527(a)(2) defines medical opinions as “statements from physicians
and psychologists . . . that reflect judgments about the nature and severity of your impairment(s), including
your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical
or mental restrictions.” Id. (emphasis added). Dr. McCord’s responses to the final three questions address
the general relationship between Allen’s spinal condition and the symptoms/limitations it may cause, rather
than addressing the specific extent of Allen’s limitations.
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 8
medically determinable impairment(s) that could reasonably be expected to produce your
symptoms, such as pain, we must then evaluate the intensity and persistence of your
symptoms so that we can determine how your symptoms limit your capacity for work.”);
see also § 404.1529(b) (“The finding that your impairment(s) could reasonably be
expected to produce your pain or other symptoms does not involve a determination as
to the intensity, persistence, or functionally limiting effects of your symptoms.”). It was
at this second step that the ALJ determined “that the claimant’s statements concerning
the intensity, duration and limiting effects of these symptoms are not entirely credible.”
The ALJ provided a good reason for rejecting Dr. McCord’s questionnaire
responses to the extent that they opined on the credibility of Allen’s statements regarding
the specific limitations of his spinal condition:
Dr. McCord was also asked to opine whether the claimant’s complaints
or descriptions of his abilities and symptoms are credible. The
affirmative response from Dr. McCord is of no help to the undersigned
since the issue of credibility is reserved to the Commissioner.
Social Security regulations state that “[o]pinions on some issues . . . are not medical
opinions . . . but are, instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.” 20 C.F.R. § 404.1527(e) (providing a non-
exhaustive list of examples of issues reserved to the Commissioner). Precedent in this
circuit and agency rulings support the ALJ’s conclusion that Dr. McCord’s opinion of
Allen’s credibility addresses one of the issues reserved to the Commissioner and
therefore is not a medical opinion requiring consideration. “[C]redibility determinations
with respect to subjective complaints of pain rest with the ALJ.” Siterlet v. Sec’y of
Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987); see also Walters v. Comm’r
of Soc. Sec.,
127 F.3d 525, 531 (6th Cir. 1997) (“[A]n ALJ’s findings based on the
credibility of the applicant are to be accorded great weight and deference, particularly
since an ALJ is charged with the duty of observing a witness’s demeanor and
credibility.”); Soc. Sec. Rul. 96-7p,
1996 WL 374186, at *4 (1996).
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 9
Because the ALJ followed agency regulations by stating good reasons for
discounting Dr. McCord’s questionnaire responses, remand to the agency is not required
for failing to do so.
B.
The subsequent determination that Allen was disabled does not warrant a remand
of his initial benefits denial. Sentence six of 42 U.S.C. § 405(g) describes a situation
where a court can remand a case to the agency:
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.
Allen argues that his subsequent favorable decision finding him disabled beginning the
day after the initial decision denying benefits constitutes new and material evidence
justifying remand under § 405(g). The magistrate judge correctly found that a
subsequent favorable decision itself, as opposed to the evidence supporting the
subsequent decision, does not constitute new and material evidence under § 405(g).
Therefore, Allen did not meet his burden of showing that remand is proper under this
section. See Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir.
1988).
The Supreme Court’s interpretation of sentence six of § 405(g) in Melkonyan v.
Sullivan, 501 U.S. 89 (1991), states as follows:
The district court does not affirm, modify, or reverse the Secretary’s
decision; it does not rule in any way as to the correctness of the
administrative determination. Rather, the court remands because new
evidence has come to light that was not available to the claimant at the
time of the administrative proceeding and that evidence might have
changed the outcome of the prior proceeding.
Id. at 98. Under sentence six, the mere existence of the subsequent decision in Allen’s
favor, standing alone, cannot be evidence that can change the outcome of his prior
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 10
proceeding. A subsequent favorable decision may be supported by evidence that is new
and material under § 405(g), but the decision is not itself new and material evidence.
If a subsequent favorable decision—separated from any new substantive
evidence supporting the decision—could itself be “new evidence” under sentence six,
the only way that it might change the outcome of the initial proceeding is by the power
of its alternative analysis of the same evidence. But remand under sentence six is not
meant to address the “correctness of the administrative determination” made on the
evidence already before the initial ALJ.4 Id. In addition, it is overly broad to read the
words “new evidence” in sentence six to include a subsequent decision based on the
same evidence. In Melkonyan, the Court noted that the legislative history of § 405(g)
shows that “Congress made it unmistakably clear that it intended to limit the power of
district courts to order remands for ‘new evidence’ in Social Security cases.”
Id. at 100.
A sentence six remand would be appropriate based on Allen’s subsequent
favorable decision only if the subsequent decision was supported by new and material
evidence that Allen had good cause for not raising in the prior proceeding. It is Allen’s
burden to make this showing under § 405(g), see Sizemore, 865 F.2d at 711, but he has
failed to meet this burden. On appeal, Allen does not argue that there is any new
substantive evidence that might change the outcome of the previous denial, but instead
relies exclusively on the existence of the subsequent decision. To the extent that Allen
argues that remand is appropriate based on the possibility of new and material evidence,
this contradicts the clear language of § 405(g) that requires 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) (emphasis added).
In his motion for summary judgment before the district court, however, Allen
mentioned past back surgeries and corresponding medical records as possible new and
material evidence. Allen had already presented this evidence to the Appeals Council,
4
In contrast, sentence four of § 405(g) allows a court to enter “a judgment affirming, modifying,
or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.” Allen
does not argue for a sentence four remand.
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 11
which in turn referred the question of reopening the initial decision to the original ALJ.
The ALJ properly rejected this evidence as cumulative and not material in his denial of
Allen’s motion to reopen, and the district court rejected the evidence as not material.
Because Allen failed to show that there is “new evidence which is material,” the district
court correctly found that remand under sentence six of § 405(g) is not appropriate.
Allen relies on Hayes v. Astrue, 488 F. Supp. 2d 560, 565 (W.D. Va. 2007), and
Bradley v. Barnhart,
463 F. Supp. 2d 577 (S.D.W.V. 2006), for the proposition that
“where a second social security application finds a disability commencing at or near the
time a decision on a previous application found no such disability, the subsequent
finding of a disability may constitute new and material evidence.” Hayes,
488 F. Supp.
2d at 565; see also Reichard v. Barnhart,
285 F. Supp. 2d 728, 734 (S.D. W.Va. 2003);
Luna v. Astrue, No. CIV 07-719-PHX-MHB,
2008 WL 2559400, at *2 (D. Ariz. June
23, 2008); Graham v. McMahon, No. 7:06cv00475,
2007 WL 2021893, at *2 (W.D. Va.
July 6, 2007). To the extent that these district court opinions stand for the proposition
that the subsequent determination is itself new evidence meriting remand, these opinions
misapply § 405(g) for the reasons stated above.
In addition, several of these cases distinguish Bruton v. Massanari, 268 F.3d 824
(9th Cir. 2001), a case in which the claimant’s § 405(g) request based on a subsequent
favorable determination was denied because the second application “involved different
medical evidence, a different time period, and a different age classification.”
Id. at 827.
The magistrate judge in this case correctly identified how Allen’s second determination
was likely based on a different age category because he turned 55 before the second
ruling: “[D]ue to a ‘different age classification’ as contemplated by Bruton, . . . it
appears that the Commissioner was required as a matter of law and pursuant to the
‘grids’ to find the plaintiff disabled for the period after February 3, 2007.” This case
highlights the problem with treating a subsequent favorable decision as “new evidence
which is material,” without requiring the plaintiff to show what evidence supported that
decision. The new determination might be based on a change in the claimant’s condition
that occurred after the initial determination or a change in the claimant’s circumstances,
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 12
such as entering a new age classification. Neither of these situations justifies a remand
under sentence six of § 405(g).
In the case of a subsequent favorable determination, a sentence six remand is
appropriate only if the plaintiff can show new substantive evidence that might have
changed the outcome of the prior proceeding, and good cause for failing to bring this
evidence in the original proceeding. The district court correctly determined that Allen
has failed to make this showing.
III.
For these reasons, we affirm the district court’s decision upholding the
Commissioner’s denial of Allen’s initial benefits request and dismissing Allen’s
complaint.
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 13
__________________
DISSENT
__________________
CLAY, Circuit Judge, dissenting. I dissent from the majority’s analysis
addressing whether remand to the Commissioner is appropriate under sentence six of
§ 405(g). In concluding that Allen has failed to present “new evidence which is
material” to support a remand pursuant to sentence six of § 405(g), the majority resorts
to conclusory statements and unsupported assumptions. The majority asserts that “the
subsequent decision in Allen’s favor, standing alone,” is the only possible “new
evidence” that could support a remand under § 405(g). Op. at 10. However, the second
application is not in the record before the panel on appeal, and there is no evidence
indicating what Allen did or did not submit to the SSA in support of his second
application.
Without examining the evidence submitted in support of Allen’s subsequent
application for benefits, this Court cannot determine whether there is “new evidence
which is material” underlying the subsequent determination of disability that would
support a sentence six remand. Because examination of the evidence supporting the
SSA’s subsequent award of benefits is necessary to properly evaluate whether there is
“new evidence which is material,” I would remand for a determination of whether the
available evidence indicates that the sole possible basis for remand under sentence six
is the subsequent favorable determination.1 In view of the incomplete and contradictory
state of the record, the preferable disposition of this appeal would be to remand with
instructions for clarification regarding the state of the evidence we are to consider in
connection with this appeal. Contrary to the majority’s opinion, the problem here is not
1
Further demonstrating the conclusory nature of the majority’s opinion is its suggestion that the
subsequent finding that Allen was disabled “was likely based on a different age category.” Op. at 12. The
majority joins the magistrate judge in speculating that “[t]he new determination might be based on a
change in the claimant’s [age]” that required the Commissioner “as a matter of law and pursuant to the
‘grids’ to find the plaintiff disabled for the period after February 3, 2007.” Id. However, the letter
awarding Allen benefits provides no indication as to how the SSA arrived at its determination that Allen
was disabled. Thus, the majority can only speculate as to the reasons underlying the SSA’s subsequent
conclusion that Allen was disabled.
No. 08-5342 Allen v. Comm’r of Soc. Sec. Page 14
simply that the record fails to reveal new material evidence, or that Allen has failed to
meet his burden; rather, the confusing and ambiguous state of the record should be
addressed prior to a ruling by this Court. Because of this recommended disposition, I
find it unnecessary to reach the issue of whether a subsequent favorable determination
itself, apart from the evidence supporting that determination, can constitute “new
evidence which is material” for purposes of § 405(g).
Inasmuch as the majority opinion is based on insufficient support in the record
for its conclusory statements, I respectfully dissent from the majority’s conclusions
regarding Allen’s request to remand to the Commissioner under sentence six of § 405(g).
