United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
King, Magistrate Judge United States District Court
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.
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.
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
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).
motion to strike (Docket 20) is without merit.
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.
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.
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,  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.
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).
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
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).
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).
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 ...