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Harrison v. Colvin

United States District Court, W.D. Kentucky, Paducah Division

December 21, 2016

RONI RANEE HARRISON PLAINTIFF
v.
CAROLYN COLVIN, Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge United States District Court

         This matter is before the Court on Plaintiff's complaint seeking judicial review (pursuant to Sentence 4 of 42 U.S.C. 405(g)) of the final decision of the Commissioner denying her claim for Social Security disability benefits. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. Docket 13.

         Plaintiff filed a motion for summary judgment, and Defendant responded in opposition. Dockets 16 and 19. The motion will be DENIED because, considering only the evidence that was before the administrative law judge (ALJ), the ALJ's decision was supported by substantial evidence and was in accord with applicable legal standards.

         Additionally, the parties dispute the status of certain evidence that was not before the ALJ. Plaintiff submitted evidence to the Appeals Council suggesting that consultative physician Michael W. McCall, Jr., was not licensed to practice medicine in the state of Kentucky at the time he examined Plaintiff (at the request of the Commissioner). Defendant submitted evidence (Docket 19-1) showing that, in fact, Dr. McCall was duly licensed.

         Plaintiff filed a motion to strike Defendant's evidence concerning Dr. McCall's licensure, and Defendant responded in opposition. Dockets 20 and 23. The motion will be DENIED because Defendant's evidence is relevant to the Court's analysis of whether Plaintiff's evidence constitutes new and material evidence (not before the ALJ) warranting a remand for consideration of such evidence (by the ALJ) pursuant to Sentence 6 of Section 405(g).

         Plaintiff's motion to strike (Docket 20) is without merit.

         Plaintiff alleges disability, in part, due to “severe, ” or vocationally-significant, unexplained psychogenic tremor of the right upper extremity. See ALJ's decision at administrative record (AR), p. 77 identifying this as Plaintiff's sole severe impairment.

         The ALJ found that Plaintiff is not disabled because she retains the ability to perform her past relevant (clerical) work. AR, p. 86. In finding that Plaintiff retains the physical residual functional capacity (RFC) to perform this work, the ALJ gave “great weight” to the opinion of one-time examining source Michael W. McCall, Jr., M.D. Id. Dr. McCall examined Plaintiff in 2013 and found, among other things that, Plaintiff is able to sit, stand, walk, lift and handle objects “without much difficulty.” ALJ's decision at AR, p. 83 referring to Dr. McCall's opinion at AR, p. 565.

         On appeal of the ALJ's decision to the Appeals Council, Plaintiff submitted evidence suggesting that Dr. McCall was not a “qualified, ” per the requirements of 20 C.F.R. 404.1519g, [1] to examine Plaintiff and offer an opinion on what Plaintiff can still do despite her impairments because, at the time of the examination (2013), he was not licensed in Kentucky. Specifically, Plaintiff submitted evidence to the effect that Plaintiff was licensed to practice dermatology in Kentucky until 2014. See Plaintiff's evidence in supplemental administrative record, Docket 15-2, consisting of an active-physicians on-line data-base print-out.

         Notwithstanding Plaintiff's evidence, the Appeals Council declined the review the ALJ's decision, thereby rendering the ALJ's decision the Commissioner's final decision, subject to the present judicial review. Cotton v. Secretary, 2 F.3d 692, 695 (6th Cir.1993).

         Plaintiff claimed that a remand is required because of the ALJ's reliance on an unqualified medical source opinion. Docket 16-1, pp. 9-11. Defendant submitted evidence that, in fact, Dr. McCall was licensed to practice medicine as a resident/fellow in 2011. See Defendant's evidence, Docket 19-1, consisting of a medical-residents on-line data-base print-out). While not questioning its accuracy, Plaintiff moved to strike Defendant's evidence, which shows that Dr. McCall was, in fact, licensed in Kentucky at the time of his examination and opinion. According to Plaintiff, her evidence but not Defendant's is part of the administrative record, which this Court may consider in conducting its judicial review. See motion to strike, Docket 20, p. 4 (“[T]he record before the agency at the time that it made its final decision was that Dr. Michael McCall Jr. was not a licensed physician at the time that he evaluated and rendered his opinion in Mrs. Harrison's claim”).

         Plaintiff's argument is unpersuasive because it fails to recognize that, for purposes of (Sentence 4) judicial review, neither her evidence nor Defendant's is part of the administrative record. Any evidence that was not before the ALJ - whether first submitted to the Appeals Council or to this Court - cannot fairly be considered by the Court in determining whether the ALJ's decision was supported by substantial evidence. See Cline v. Commissioner, 96 F.3d 146, 148 (6th Cir. 1996) (Evidence submitted after the ALJ's decision may be considered by the Court only for the limited purpose of determining whether to grant a Sentence 6 remand).

         While Plaintiff has failed to move for a Sentence 6 remand, the Court will consider Plaintiff's evidence in that light. Sentence 6 authorizes a remand for consideration of new evidence if Plaintiff shows that the evidence is material and there was good cause for not submitting it to the ALJ. Evidence is material only if there is a “reasonable probability that the [ALJ] would have reached a different disposition of the disability claim if presented with the new evidence.” Sizemore v. Secretary, 865 F.2d 709, 711 (6th Cir. 1988).

         Plaintiff has failed to demonstrate materiality of her new evidence (indicating Dr. McCall was licensed to practice dermatology in 2014) because, if presented with such evidence, the ALJ would likely have simply discovered (the content of) Defendant's evidence and relied on Dr. MCall's opinion just the same. Due to ...


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