Chelkonas v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

FRANCIS CHELKONAS,

Plaintiff,

v. Case No. 8:21-cv-2907-MAP

COMMISSIONER OF SOCIAL SECURITY

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of his claim for a period of disability

and disability insurance benefits (DIB).1 Plaintiff argues that the Administrative Law

Judge (ALJ) committed reversible error by failing to fully develop the record regarding

Plaintiff’s Department of Veterans Affairs (the VA) disability rating and therefore

requests remand under sentence six of 42 U.S.C. § 405(g). As the ALJ’s decision was

based on substantial evidence and employed proper legal standards, the

Commissioner’s decision is affirmed.

I. Background

Plaintiff, who was born in 1979, claimed disability beginning February 3, 2017

(Tr. 326).2 He was 37 years old on the alleged onset date. Plaintiff obtained at least a

1 The parties have consented to my jurisdiction. See 28 U.S.C. § 636(c).

2 Plaintiff’s earlier application was denied on February 2, 2017, with no subsequent appeal,

making February 3, 2017, the earliest possible onset date (Tr. 70, 127-44).

high school education, and his past relevant work experience included work as an

infantry airborne soldier, a plumbing apprentice, and a receptionist (Tr. 44-45, 65-66,

361). Plaintiff alleged disability due to chronic post-traumatic stress disorder (PTSD),

chronic low back pain, chronic neck pain, bilateral hand pain and stiffness in joints,

bilateral knee problems with braces, insulin dependent diabetes mellitus, nerve

damage, hypertension, gastroesophageal problems, obstructive sleep apnea, and

hypothyroidism (Tr. 360).

Given his alleged disability, Plaintiff filed an application for a period of

disability and DIB (Tr. 326-27). The Social Security Administration (SSA) denied

Plaintiff’s claims both initially and upon reconsideration (Tr. 145-81, 209-17). Plaintiff

then requested an administrative hearing (Tr. 218). Per Plaintiff’s request, the ALJ

held a hearing at which Plaintiff appeared and testified (Tr. 72-126). Following the

hearing, the ALJ issued an unfavorable decision finding Plaintiff not disabled and

accordingly denied Plaintiff’s claims for benefits (Tr. 182-200). Upon a request for

review from Plaintiff, the Appeals Council vacated the decision and remanded the case

to the ALJ for resolution of the following issue:

A letter from the Department of Veterans Affairs dated July 6, 2015,

reveals that claimant was found to have a 100% disability rating.

Although a decision from another government agency, such as the

Department of Veterans Affairs, about a claimant’s disability is not

binding on the Social Security Administration, that decision should still

be considered and weighed as an opinion from a nonmedical source.

Since the hearing decision did not consider or weigh the nonmedical

source opinion from the Department of Veterans Affairs, consideration

is warranted of that opinion.

(Tr. 203) (internal citations omitted). Given its finding, the Appeals Council directed

the ALJ to evaluate the disability rating from the Department of Veterans Affairs and

explain the weight afforded to such opinion evidence (Tr. 203).

On remand, the ALJ held a second administrative hearing, after which he issued

another unfavorable decision finding Plaintiff not disabled (Tr. 7-27, 40-71). In

rendering the administrative decision, the ALJ concluded that Plaintiff met the insured

status requirements through June 30, 2020, and had not engaged in substantial gainful

activity since February 3, 2017, the alleged onset date (Tr. 12). After conducting the

hearing and reviewing the evidence of record, the ALJ determined that Plaintiff had

the following severe impairments: obesity, but had the same musculature and body

mass index (BMI) as when he was in the military service; obstructive sleep apnea

(OSA) with partial use of continuous positive airway pressure (CPAP) machine;

diabetes mellitus; lumbar spine degenerative disc disease (DDD) with a small disc

protrusion and moderate stenosis; left Achilles tendon repair with past injuries;

shoulder problems with limited motion on elevation; and bipolar II depression and

anxiety from PTSD (Tr. 12).

Notwithstanding the noted impairments, the ALJ determined that Plaintiff did

not have an impairment or combination of impairments that met or medically equaled

one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 13).

The ALJ then concluded that Plaintiff retained a residual functional capacity (RFC)

to perform light work with the following limitations: occasional climbing, balancing,

stooping, kneeling, crouching, and crawling; occasional climbing of ladders, scaffolds,

and ropes but never climbing at open unprotected heights; avoidance of dangerous

machinery and working in loud-noise environments; limited to frequent overhead

reaching with both upper extremities; limited to understanding and carrying out

simple, routine, repetitive procedures and tasks and making only basic decisions and

adjusting to simple changes in the work setting; limited to only occasional interaction

with the public; and interaction with coworkers and supervisors limited to frequently

if there were no more than 15 people in the same work area but limited to occasionally

if there were more than 15 people in the work area (Tr. 14). In formulating Plaintiff’s

RFC, the ALJ considered Plaintiff’s subjective complaints and determined that,

although the evidence established the presence of underlying impairments that

reasonably could be expected to produce the symptoms alleged, Plaintiff’s statements

as to the intensity, persistence, and limiting effects of his symptoms were not entirely

consistent with the medical evidence and other evidence (Tr. 15-16).

Considering Plaintiff’s noted impairments and the assessment of a vocational

expert (VE), however, the ALJ determined that Plaintiff could not perform his past

relevant work (Tr. 20). Given Plaintiff’s background and RFC, the VE testified that

Plaintiff could perform other jobs existing in significant numbers in the national

economy, such as a mail sorter, a parts cleaner, and an office helper (Tr. 20-21).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the

testimony of the VE, the ALJ found Plaintiff not disabled (Tr. 21-22). Given the ALJ’s

finding, Plaintiff requested review from the Appeals Council, which the Appeals

Council denied (Tr. 1-6, 313-15). Plaintiff then timely filed a complaint with this Court

(Doc. 1). The case is now ripe for review under 42 U.S.C. § 405(g).

II. Standard of Review

To be entitled to benefits, a claimant must be disabled, meaning the claimant

must be unable “to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous period of not

less than twelve months.” 42 U.S.C. § 423(d)(1)(A). A “physical or mental

impairment” is an “impairment that results from anatomical, physiological, or

psychological abnormalities, which are demonstrable by medically acceptable clinical

and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

To regularize the adjudicative process, the SSA promulgated the detailed

regulations currently in effect. These regulations establish a “sequential evaluation

process” to determine whether a claimant is disabled. 20 C.F.R. § 404.1520. If an

individual is found disabled at any point in the sequential review, further inquiry is

unnecessary. 20 C.F.R. § 404.1520(a). Under this process, the ALJ must determine,

in sequence, the following: whether the claimant is currently engaged in substantial

gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404, Subpart P,

Appendix 1; and whether the claimant can perform his or her past relevant work. 20

C.F.R. § 404.1520(a)(4). If the claimant cannot perform the tasks required of his or

her prior work, step five of the evaluation requires the ALJ to decide if the claimant

can do other work in the national economy in view of his or her age, education, and

work experience. 20 C.F.R. § 404.1520(a)(4)(v). A claimant is entitled to benefits only

if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20

C.F.R. § 404.1520(g)(1).

A determination by the Commissioner that a claimant is not disabled must be

upheld if it is supported by substantial evidence and comports with applicable legal

standards. See 42 U.S.C. § 405(g). “Substantial evidence is more than a scintilla and

is such relevant evidence as a reasonable person would accept as adequate to support

a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)

(citation and internal quotation marks omitted). While the court reviews the

Commissioner’s decision with deference to the factual findings, no such deference is

given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1260 (11th

Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh the

evidence or substitute its own judgment for that of the ALJ, even if it finds that the

evidence preponderates against the ALJ’s decision. Mitchell v. Comm’r of Soc. Sec., 771

F.3d 780, 782 (11th Cir. 2014); Winschel, 631 F.3d at 1178 (citations omitted);

Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The Commissioner’s

failure to apply the correct law, or to give the reviewing court sufficient reasoning for

determining that he or she has conducted the proper legal analysis, mandates reversal.

Ingram, 496 F.3d at 1260 (citation omitted). The scope of review is thus limited to

determining whether the findings of the Commissioner are supported by substantial

evidence and whether the correct legal standards were applied. 42 U.S.C. § 405(g);

Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002) (per curiam) (citations omitted).

III. Discussion

Plaintiff presents two arguments in favor of remand that Plaintiff contends are

intertwined. Namely, Plaintiff argues that (1) the ALJ erred by failing to properly

develop the record as to Plaintiff’s VA claims file, and (2) remand is warranted under

sentence six of 42 U.S.C. § 405(g) because (a) there is new, noncumulative evidence

material to the decision and (b) good cause existed for the failure to submit such

evidence at the administrative level.

A. Development of the Record

Plaintiff’s first argument involves the purported failure by the ALJ to fully

develop the record. Even though Social Security proceedings are inquisitorial rather

than adversarial in nature, claimants must establish their eligibility for benefits.

Ingram, 496 F.3d at 1269; 20 C.F.R. § 404.1512(a). During the administrative process,

therefore, a claimant must inform the SSA about or submit all evidence known to the

claimant relating to whether the claimant is blind or disabled. 20 C.F.R. § 404.1512(a).

Although the claimant bears the burden of providing medical evidence showing she is

disabled, the ALJ is charged with developing a full and fair record. Ellison v. Barnhart,

355 F.3d 1272, 1276 (11th Cir. 2003). The ALJ maintains this basic obligation to

develop a full and fair record without regard for whether the claimant is represented

by counsel. Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). When the plaintiff

demonstrates that the record reveals evidentiary gaps which result in unfairness or

“clear prejudice,” remand is warranted. Id. at 935; Henry v. Comm’r of Soc. Sec., 802

F.3d 1264, 1267 (11th Cir. 2015) (“Remand for further factual development of the

record before the ALJ is appropriate where the record reveals evidentiary gaps which

result in unfairness or clear prejudice.”) (quotation and citation omitted); Graham v.

Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997) (“However, there must be a showing of

prejudice before it is found that the claimant’s right to due process has been violated

to such a degree that the case must be remanded to the [Commissioner] for further

development of the record.”) (citation omitted).

As noted above, upon a request for review from Plaintiff, the Appeals Council

remanded the case to the ALJ for consideration of the letter regarding the VA decision

finding that Plaintiff had a 100% disability rating and for an explanation of the weight

given to such nonmedical opinion evidence (Tr. 10, 201-05, 316-21). On remand, the

ALJ held another administrative hearing, at which Plaintiff’s non-attorney

representative confirmed that the ALJ had the appropriate disability rating

information in the record (Tr. 43-44, 316-25). Following that, the ALJ issued the

administrative decision, wherein the ALJ complied with the Appeals Council’s

directive to consider the letter, stating:

As noted by the Appeals [Council], a letter from the Department of

Veterans Affairs dated July 6, 2015, reveals that claimant was found to

have a 100 percent disability rating by an administrative determination.

Although an administrative decision from another government agency,

such as the Department of Veterans Affairs, about a claimant’s disability

is not binding on the Social Security Administration, that decision should

still be considered and weighed as an opinion from a nonmendical source

and can be used as evidence of a disability. In this case, the undersigned

Judge notes that this document was drafted in 2015, two years prior to

the alleged onset date and nearly five years prior to the present. Thus,

the findings in that record are not an accurate reflection of the claimant’s

current abilities and limitations. As to the specifics of this opinion, the

undersigned notes that the VA administrative clerk determined the

claimant to be 100 percent disabled due to PTSD and listed

approximately 20 symptoms of PTSD that preclude the claimant from

working. However, as noted above, in spite of the claimant’s alleged

symptoms of depression and PTSD, he presents generally unremarkable

during mental status examinations and remains very functional in his

every[day] life. Even he admits that he is able to tend to his personal

care, drive, cook, clean, handle his finances, use a computer and

socialize. For these reasons, the opinion of the VA at exhibit B1D is not

persuasive, even as a nonmedical source.

(Tr. 19-20) (internal citations omitted). Plaintiff asserts that, despite the ALJ’s

compliance with the Appeals Council’s directive, the ALJ had a duty to further

develop the record with respect to the basis for the VA’s disability ratings decision, as

the letter reviewed by the ALJ at the behest of the Appeals Council only summarized

Plaintiff’s eligibility for benefits but did not constitute a medical opinion nor provide

the medical findings in support of the eligibility determination.

Plaintiff’s first argument involves an apparent heighted duty Plaintiff seeks to

impose upon this particular ALJ because the ALJ worked as counsel for the Board of

Veterans’ Appeals more than 30 years ago, as evidenced by a copy of a decision issued

by the Board of Veterans’ Appeals in the early 1990s (Doc. 14-1), and because Plaintiff

was represented by a non-attorney representative. Without citation to any legal

authority, Plaintiff contends that, by virtue of his former position with the Board of

Veterans’ Appeals, the ALJ knew or should have known that medical opinion

evidence forming the basis of the VA’s rating decision would be contained in Plaintiff’s

VA claims file. Plaintiff additionally argues that his non-attorney representative “may

not have known that [Plaintiff’s] VA claims file probably contained disability benefits

questionnaires, completed by medical sources, which were not contained in

[Plaintiff’s] VA treatment records” (Doc. 14, at 8). Regardless of any prior

employment history by the ALJ, a heightened duty to develop the record only arises

where, unlike in this case, a claimant has not waived the right to representation. See

Brown, 44 F.3d at 934-35; see also Graham, 129 F.3d at 1422-23. Even then, a claimant

must show prejudice before it can be found that a claimant’s right to due process has

been violated to such a degree that the case must be remanded to the Commissioner

for further development of the record. Graham, 129 F.3d at 1423. In this case, Plaintiff

did not waive his right to representation but rather appeared at the second

administrative hearing with a non-attorney representative (Tr. 42), to whom the same

standards apply as an attorney representing a claimant in the administrative process.

See 20 C.F.R. §§ 404.1705, 404.1740. Plaintiff’s argument that the ALJ erred based on

the employment history of the ALJ or the employment status of Plaintiff’s

representative therefore falls flat.

Beyond that, Plaintiff asserts that the ALJ must consider medical opinions, and

since the medical opinions which resulted in the VA rating decision were not contained

in the claims file, the ALJ failed to properly consider such opinions. To that end,

Plaintiff provided (1) a VA compensation and pension (C&P) review questionnaire

regarding PTSD submitted by Kelly Gorman, Psy.D., in June 2015 (Doc. 14-2, at 1-

13 (duplicate copies)); (2) a VA C&P examination questionnaire regarding back

(thoracolumbar spine) conditions submitted by Teresa White, ARNP, in June 2015

(Doc. 14-2, at 14-21); and (3) the June 2015 VA disability rating decision (Doc. 14-2,

at 22-30), which Plaintiff contends the ALJ should have obtained or, at a minimum,

directed Plaintiff’s representative to obtain. Plaintiff makes no argument, however,

that the lack of such records created an evidentiary gap resulting in unfairness or clear

prejudice during the relevant period at issue. See Brown, 44 F.3d at 935; Henry, 802

F.3d at 1267 (“Remand for further factual development of the record before the ALJ

is appropriate where the record reveals evidentiary gaps which result in unfairness or

clear prejudice.”) (internal quotation and citation omitted); Graham, 129 F.3d at 1423.

Rather, Plaintiff simply notes that a licensed psychologist, Dr. Gorman, rather than

an administrative clerk, determined that Plaintiff was 100% disabled due to PTSD (see

Tr. 19). Additionally, he states that ARNP White determined that he was entitled to

an increased rating to 20% for his degenerative lumbar disc disease and that he was

noted as regularly using a cane for ambulation in June 2015. Even if Plaintiff argued

that the omission of such records led to an evidentiary gap resulting in unfairness or

clear prejudice, such argument would fail.

First, all the records were prepared nearly two years before the alleged onset

date and nearly five years before both the ALJ’s and Appeals Council’s decisions (Tr.

1-27; Doc. 14-2). They also fail to shed much light on Plaintiff’s condition during the

relevant period from February 3, 2017, the alleged onset date, to June 30, 2020, the

date last insured. To the extent that the records address Plaintiff’s PTSD, lumbar

spinal conditions, and VA disability rating, the ALJ addressed those issues in the

decision (Tr. 10-22). In the decision, the ALJ found Plaintiff’s lumbar spine DDD

with a small disc protrusion and moderate stenosis and Plaintiff’s bipolar II depression

and anxiety from PTSD to be severe impairments and then later identified limitations

in the RFC and discussed the evidence of record relating to each, including the letter

regarding the VA 100% disability rating due to PTSD (Tr. 12-20).

Next, Dr. Gorman’s questionnaire was simply a PTSD review, wherein she

reviewed Plaintiff’s VA medical records to assess whether Plaintiff experienced PTSD

(Doc. 14-2, at 1-13). She did not examine Plaintiff as part of her review but rather

recited notes from Plaintiff’s prior treatment regarding his subjective complaints.

Additionally, she simply checked all the symptoms she believed actively applied to

Plaintiff’s condition as of June 2015 based upon her review of Plaintiff’s records

without any behavioral observations. Given her findings, she opined that Plaintiff

experienced total occupational and social impairment, or a 100% disability rating.

Under the applicable regulations, a medical opinion consists of statements from an

acceptable medical source that reflects the judgment about the nature and severity of

a claimant’s impairments, including symptoms, diagnosis and prognosis, what a

claimant can still do despite such impairments, and any physical or mental restrictions.

See 20 C.F.R. § 404.1527(a)(2).3 As the Commissioner contends, the only part of Dr.

Gorman’s findings that could be considered a medical opinion under that definition is

3 Plaintiff submitted his application for benefits on March 15, 2017 (Tr. 326-327), so his claim

is governed by prior regulations. The current regulations redefine what constitutes a medical

opinion. Compare 20 C.F.R. §§ 404.1527(a)(2) and 404.1513(a)(2).

Dr. Gorman’s diagnosis of PTSD and recitation of related symptoms. Nothing else in

the questionnaire reflects Dr. Gorman’s judgment about the nature and severity of

Plaintiff’s PTSD.

Indeed, Dr. Gorman’s statement that Plaintiff was 100% disabled did not

constitute a medical opinion.4 Statements by a medical source that a claimant is

“disabled” or “unable to work” constitute opinions on issues reserved to the

Commissioner and do not direct that a finding of disabled is warranted. 20 C.F.R. §

404.1527(d)(1); see Denomme v. Comm’r, Soc. Sec. Admin., 518 F. App’x 875, 877-78

(11th Cir. 2013) (stating that it is the Commissioner, not a claimant’s physician, who

determines whether a claimant is statutorily disabled, and a statement by a medical

source that a claimant is disabled does not mean that the Commissioner will conclude

a claimant is disabled).5 The Commissioner need not afford any special significance

to the source of such an opinion because the determination of disability and ability to

work remain issues reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(3).

Regardless, the ALJ considered the VA 100% disability rating due to PTSD and

concluded that it did not deserve great weight, concluding that it was not an accurate

reflection of Plaintiff’s current functioning and was inconsistent with the mental status

examinations and daily functionality during the relevant period (Tr. 20, 316-18).

4 The fact that the ALJ inaccurately attributed the opinion to an administrative clerk rather

than to Dr. Gorman does not impact the analysis or create any prejudice to Plaintiff. Such

error is therefore considered harmless.

5 Unpublished opinions are not considered binding precedent but may be cited as persuasive

authority. 11th Cir. R. 36-2.

Accordingly, consideration of Dr. Gorman’s questionnaire would not change the

administrative result, and the ALJ did not err in failing to obtain it.

For the same reasons, the ALJ did not err in failing to obtain or to consider the

questionnaire from ARNP White as to Plaintiff’s back conditions (Doc. 14-2, at 14-

21). Additionally, under the pertinent regulations, ARNP White did not constitute an

“acceptable medical source” and thus could not provide a medical opinion. 20 C.F.R.

§§ 404.1502, 404.1513(a) & (d), 404.1527. Instead, nurse-practitioners are classified

as “other sources” whose evidence may be used to show the severity of impairments

and how it affects a claimant’s ability to work but whose evidence cannot establish an

impairment. 20 C.F.R. § 404.1513(a) & (d). To the extent that Plaintiff argues that

ARNP White’s finding that Plaintiff required regular use of a cane for support due to

back pain showed the severity of Plaintiff’s impairments or how it affected his ability

to work during the relevant period and therefore showed an evidentiary gap, such

argument fails (see Doc. 14-2, at 19). The ALJ referenced Plaintiff’s use of a cane for

ambulation along with his back pain and an Achilles injury that showed signs of

improvement within a few months (Tr. 15-17, 106-07). The ALJ did not find Plaintiff’s

complaints as limiting as alleged, and the record, including Plaintiff’s statements that

he had a cane for more than 10 years that he used only periodically or that he did not

use an assistive device, supported the ALJ’s finding in that regard (Tr. 364, 689).

Plaintiff does not point to any evidence of record indicating that a medical source

prescribed the cane or that Plaintiff otherwise required a cane for ambulation.

Accordingly, no evidentiary gap existed as to the use of cane for ambulation, so the

ALJ did not err in failing to obtain ARNP White’s questionnaire.

Lastly, the ALJ did not err in failing to obtain a copy of the June 2015 VA

disability rating decision (Doc. 14-2, at 22-30). Although Plaintiff does not indicate

whether he received a copy of the disability rating decision, the decision is directed to

him, meaning that he would likely possess a copy of the decision and be able to provide

a copy to the SSA, as was his burden. Irrespective, the ALJ both confirmed with

Plaintiff’s representative during the second administrative hearing that the information

in the record was the evidence of the VA disability rating and complied with the

Appeals Council’s directive to consider such evidence (Tr. 43, 316-25). As with the

actual VA disability rating decision, the information in the record verifies that the VA

rated Plaintiff 100% disabled due to PTSD (Tr. 316-25). The decision would not add

any additional information not already considered by the ALJ as to the nonmedical

opinion from the VA nor fill any evidentiary gaps regarding the VA’s disability rating.

Plaintiff points to an increase of disability rating in the disability rating decision from

10% to 20% regarding Plaintiff’s lumbar spine DDD as additional information not

considered by the ALJ (Doc. 14-2, at 25-26). As noted, however, the ALJ found

Plaintiff’s lumbar DDD to be a severe impairment and accordingly limited Plaintiff to

a reduced range of light work with several other postural limitations to account for

Plaintiff’s back issues and pain based on similar findings as those set forth in the

disability ratings decision (Tr. 12-17, 168, 719).

For the foregoing reasons, the ALJ did not err in failing to develop the record.

None of the records provided by Plaintiff demonstrate any evidentiary gaps that

resulted in unfairness or clear prejudice to Plaintiff. Rather, the ALJ applied the

correct legal standards in developing the record and complying with the Appeals

Council’s remand order.

B. Sentence Six Remand

Plaintiff argues that the matter should be remanded back to the Commissioner

under sentence six of 42 U.S.C. § 405(g) for consideration of the purportedly new, non-

cumulative, material evidence attached to Plaintiff’s memorandum of law in

opposition to the Commissioner’s decision (Doc. 14-2). When reviewing final agency

decisions on Social Security benefits, the exclusive methods by which district courts

may remand to the Commissioner of Social Security are set forth in sentence four and

sentence six of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 296 (1993).

Sentence six provides:

The court may, on motion of the Commissioner of Social Security made

for good cause shown before the Commissioner files the Commissioner's

answer, remand the case to the Commissioner of Social Security for

further action by the Commissioner of Social Security, and it 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 ….

42 U.S.C. § 405(g). Sentence six constitutes the only way in which a district court may

remand a case to the Commissioner for consideration of new evidence not presented

to the Commissioner at any stage of the administrative process and requiring further

review. See Ingram, 496 F.3d at 1267-68. To establish a basis for remand under

sentence six, therefore, a claimant must demonstrate that (1) there is new,

noncumulative evidence; (2) the evidence is “material,” meaning relevant and

probative such that a reasonable possibility exists that it would change the

administrative result; and (3) good cause exists for the failure to submit the evidence

at the administrative level. Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 821 (11th

Cir. 2015) (citation omitted).

In this instance, Plaintiff failed to establish a basis for remand under sentence

six. Namely, beyond a cursory statement that the records “were not part of the record

and are new and material evidence,” Plaintiff fails to articulate how such evidence was

new, noncumulative, or material or how good cause existed by virtue of the fact that,

“unless a person was familiar with the VA compensation claims process, that person

was probably not aware of the existence of disability benefits questionnaires” (Doc.

14, at 10). Notwithstanding, review of the evidence shows that the records were

neither new nor noncumulative evidence. All the evidence provided by Plaintiff was

created in June 2015 (Doc. 14-2), nearly two years prior to the alleged onset date and

nearly five years prior to both the ALJ’s decision and the Appeals Council’s denial of

review, so the records cannot be considered new. Further, as explained above, the

evidence was cumulative of the same impairments and limitations considered and

addressed by the ALJ, including evidence as to Plaintiff’s VA disability rating and

Plaintiff’s PTSD, lumbar disc disease, and use of an assistive device (Tr. 12-20).

Similarly, the records are not material. As detailed more fully above, the

evidence echoed much of what was already in the administrative record and therefore

did not provide any new insight or findings that would alter the ALJ’s decision. As

consideration of the records would not change the administrative result, Plaintiff failed

to show materiality.

Finally, Plaintiff failed to demonstrate good cause for his failure to submit the

evidence at the administrative level. As the Commissioner contends, Plaintiff makes

no argument that if he attempted to obtain the records, the VA would have precluded

him from doing so. Instead, Plaintiff seeks to shift the burden to the ALJ to obtain the

records even though Plaintiff appeared at the administrative hearing with a

representative (Tr. 42-44). The VA created these records in June 2015, and Plaintiff

presumably received at least a copy of the VA disability ratings decision at some point

between the time of the VA decision and the ALJ’s decision, as the VA directed its

findings directly to Plaintiff.

In sum, Plaintiff failed to establish a basis for a remand under sentence six of 42

U.S.C. § 405(g). Plaintiff did not demonstrate that the records were new,

noncumulative, or material or that good cause existed for the failure to submit the

evidence at the administrative level. For the foregoing reasons, the ALJ’s decision is

affirmed.

IV. Conclusion

As explained above, the ALJ applied the correct legal standards, and the ALJ’s

decision is supported by substantial evidence. Accordingly, after consideration, it is

hereby

ORDERED:

1. The decision of the Commissioner is AFFIRMED.

2. The Clerk is directed to enter final judgment in favor of the

Commissioner and close the case.

DONE AND ORDERED in Tampa, Florida, on this 22nd day of March, 2023.

MARK A. PIZZO

UNITED STATES MAGISTRATE JUDGE

cc: Counsel of Record

19