Allen v. Commissioner of Social Sec.

• Decision Date: 27 March 2009
• Docket Number: No. 08-5342.,08-5342.
• Citation: 561 F.3d 646
• Parties: Almon Dale ALLEN, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Michael J. Astrue, Commissioner, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

561 F.3d 646

Almon Dale ALLEN, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Michael J. Astrue, Commissioner, Defendant-Appellee.

No. 08-5342.

United States Court of Appeals, Sixth Circuit.

Submitted: October 31, 2008.

Decided and Filed: March 27, 2009.

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.

Before: CLAY, GILMAN, and ROGERS, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which GILMAN, J., joined. CLAY, J. (pp. 654-55), 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 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 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 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 decision and extended Allen's time to file a civil action in district court.¹ 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.

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 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 ...