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Jaroscak v. Colvin

United States District Court, Tenth Circuit

September 4, 2013

ROBERT JAROSCAK, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

CARLOS MURGUIA, District Judge.

Plaintiff Robert Jaroscak brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner's denial of plaintiff's application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1381. This matter is before the court on plaintiff's motion for remand under the sixth sentence of 42 U.S.C. § 405(g) (Doc. 21) and plaintiff's opening brief (Doc. 20). The court denies the motion for remand for lack of good cause. And, finding no error in the Commissioner's analysis, the court affirms the decision of the Commissioner.

I. Background

Plaintiff protectively filed for supplemental security income in 2009. The agency denied his application initially and upon reconsideration, and plaintiff requested a hearing before an administrative law judge ("ALJ"). Plaintiff's request was granted, and plaintiff appeared with an attorney for a hearing before ALJ Stanley R. Hogg on February 18, 2011. At the hearing, the ALJ received testimony from plaintiff.

Thereafter, the ALJ issued a decision on March 21, 2011. He determined that plaintiff has not performed substantial gainful activity since the application date, and that he has severe impairments including migraines, history of chronic digestive problems, chronic back pain, hypertension, Hepatitis C, and degenerative joint disease. The ALJ found that plaintiff's impairments do not meet or medically equal the criteria of any listed impairments.

The ALJ considered the evidence and assessed plaintiff's residual functional capacity ("RFC"). He assessed plaintiff with the RFC to perform medium work as defined in 20 C.F.R. 416.967(c) except that he can stand, walk, and sit six hours of an eight hour day. The ALJ determined plaintiff can frequently balance, bend, crouch, kneel, stoop and climb ramps and stairs, ladders, ropes, and scaffolds but only occasionally crawl. He concluded plaintiff must avoid concentrated exposure to chemicals and temperature extremes.

Based on the RFC, the ALJ determined plaintiff is able to perform his past relevant work as a truck driver. He also determined that there are other jobs existing in the national economy that plaintiff is able to perform. The ALJ concluded plaintiff is not disabled within the meaning of the Act and denied plaintiff's application.

Plaintiff sought, but was denied, Appeals Council review of the ALJ's decision. Therefore, that decision became the final decision of the Commissioner. Plaintiff timely filed this case requesting judicial review of the Commissioner's decision. Plaintiff also moves for remand under sentence six of 42 U.S.C. § 405(g) based on new and material evidence.

II. Motion for Remand

A. Legal Standard

Remand under the sixth sentence of 42 U.S.C. § 405(g) is allowed when: (1) the proffered evidence is new and not cumulative, (2) the proffered evidence is material, meaning that it relates to the time period for which benefits were denied and offers a reasonable probability of changing the Commissioner's decision, and (3) the plaintiff demonstrates good cause for the failure to obtain and incorporate the evidence into the prior proceeding. Heimerman v. Chater, 939 F.Supp. 832, 833-34 (D. Kan. 1996) (citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).

B. Analysis

Plaintiff requests remand under this section for consideration of treatment notes dated January 2012 through January 2013 from his counselor, Marilyn Ediger at Prairie View, and a statement of significant mental limitations signed by Ms. Ediger on January 25, 2013. Plaintiff contends this evidence is new and material because it did not exist at the time of the hearing, relates to the relevant time period, and there is a reasonable probability it would change the Commissioner's decision. He also argues there is good cause for not providing the evidence earlier because Ms. Ediger did not make her diagnosis until May 2012, which was after the Appeals Council denied review.

Even assuming the proffered evidence is new and material, good cause is not established simply because evidence is generated after agency review. A plaintiff demonstrates good cause by providing a reasonable justification for his failure to obtain and incorporate the evidence. See Heimerman, 939 F.Supp. at 834 (explaining that "the claimant must show good cause for the failure to obtain and present the evidence at the prior hearing" (emphasis added)). The timing of Ms. Ediger's diagnosis might justify plaintiff's failure to incorporate the proffered evidence during ...


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