United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING THE CASE
A. TSUCHIDA, United States Magistrate Judge
Stanley Holster, Jr., seeks remand under sentence six of 42
U.S.C. § 405(g) of the Commissioner's decision
denying his applications for Supplemental Security Income and
Disability Insurance Benefits. He contends that a
sentence-six remand is appropriate because the Social
Security Administration erred in failing to consider
additional evidence first submitted to the Appeals Council,
and the Court should remand the case with directions to
consider the evidence. Dkt. 8, 10. The Commissioner responds
that the new evidence does not meet the standard for a
sentence-six remand and the Court should affirm the decision.
Dkt. 9. The Court finds that this case does not fall within
the purview of sentence six and, further, that the new
evidence does not support a remand under any circumstances.
The Court therefore AFFIRMS the
Commissioner's final decision and
DISMISSES the case with prejudice.
issued a decision finding Mr. Holster not disabled on March
2, 2016. Tr. 17-26. Mr. Holster requested review by the
Appeals Council and submitted, for the first time, a February
21, 2016, lumbar x-ray. Dkt. 8, exs. 1 & 2. The Appeals
Council found that this evidence did not “show a
reasonable probability that it would change the outcome of
the decision, ” and “did not consider and exhibit
this evidence.” Tr. 2. The Appeals Council denied Mr.
Holster's request for review, making ALJ's decision
the Commissioner's final decision. Id.
Holster argues that the Social Security Administration erred
in failing to consider the additional evidence first supplied
to the Appeals Council and that sentence six is the proper
vehicle to direct the Administration to consider the
evidence. Dkt. 8 at 1; Dkt. 10 at 5.
the relevant portion of sentence six of 42 U.S.C. §
405(g), a court may at any time remand a case for
“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.” In a sentence-six
remand, the court makes no substantive ruling as to the
correctness of the Commissioner's decision, but instead
retains jurisdiction of the case until a new decision is made
that is either fully favorable to the claimant or that
permits review under sentence four of 42 U.S.C. §
405(g). Melkonyan v. Sullivan, 501 U.S. 89, 100
(1991). The claimant must show both that the new evidence is
material to determining his disability and that he had good
cause for having failing to produce that evidence earlier.
Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir.
case fits neither the purpose nor the requirements of
sentence six. The purpose of a sentence-six remand is to
allow the Social Security Administration, rather than a
reviewing court, the opportunity to be the first to consider
new evidence. But Mr. Holster seeks a remand directing the
Administration to consider evidence that it has already
evaluated and rejected. To the extent Mr. Holster asks the
Court to find error in the Appeals Council's evaluation
of that evidence, the Court cannot do that. The Appeals
Council's decision is a non-final agency action that this
Court does not have jurisdiction to review. Brewes v.
Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161-62
(9th Cir. 2012). For these reasons, this case is outside the
purview of sentence six.
addition, sentence six requires that the claimant show good
cause for the failure to incorporate the evidence into the
record in a prior proceeding. This means that the claimant
must show good cause “for not having offered the
evidence in issue earlier.” Mayes v.
Massanari, 276 F.3d 453, 462-63 (9th Cir. 2001). A
claimant demonstrates good cause by showing that the new
evidence was “unavailable earlier.”
Mayes, 276 F.3d at 463. The good cause requirement
is satisfied when “‘new information . . .
surfaces after the Secretary's final decision and the
claimant could not have obtained that evidence at the time of
the administrative proceeding.'” Id.
(quoting Key v. Heckler, 754 F.2d 1545, 1551 (9th
Commissioner argues that Mr. Holster is required to show good
cause for the failure to submit the new evidence to the ALJ
before the ALJ issued his decision. Dkt. 9 at 3. Mr. Holster
counters that he must show good cause the failure to submit
the evidence at any time during the administrative
proceedings. Dkt. 10 at 3-4. Either way, Mr. Holster does not
satisfy this requirement. To the extent he was required to
show good cause for the failure to submit the x-ray to the
ALJ, he makes no attempt to explain his failure to submit to
the ALJ an x-ray that was available before the ALJ issued the
decision. To the extent he was required to have good cause
for failure to submit it before the conclusion of the
administrative proceedings, he did in fact submit it.
Holster argues that he meets the good cause requirement
because be submitted the evidence but the Appeals Council
chose not to review it. Dkt. 8 at 3. He asserts that under
Brewes and the versions of 20 C.F.R. §§
404.970 and 416.1470 in effect at the time, the Appeals
Council was required to consider any new and material
evidence it received if it related to the period on or before
the date of the ALJ decision, regardless of whether the
claimant had good cause for not submitting the evidence to
the ALJ. Id. at 3-4. He also invokes the current
versions of 20 C.F.R. §§ 404.970 and 416.1470,
which require good cause to submit new evidence to the
Appeals Council, but defines “good cause” to
include situations where the Administration's action
“misled” the claimant. Id. at 4. But
even if Brewes and the previous version of the
regulations impose no obligation on the Appeals Council to
consider good cause, sentence six imposes that requirement on
this Court. And the Court rejects the implication that a
change in the law can be characterized as
“misleading.” Here, the new evidence did not
surface after the Secretary's decision became final, but
was available during the administrative proceeding. Mr.
Holster obtained the evidence-and offered it-at that time.
The new evidence was not unavailable earlier as contemplated
by sentence six. Mr. Holster submitted the evidence and so
cannot meet a requirement that he did not submit the
evidence. In short, no matter how the issue is framed, Mr.
Holster cannot demonstrate good cause for failing to submit
addition, sentence six requires that the new evidence be
material. The February 2016 x-ray does not meet this
requirement. Evidence is material if it bears directly and
substantially on the matter in dispute and if there is a
reasonable possibility that the new evidence would have
changed the outcome of the administrative hearing. Mayes
v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). Mr.
Holster argues that the February 21, 2016, x-ray meets this
standard because the only x-ray the ALJ considered, dated
October 20, 2014, showed mild disc height loss at ¶
4-L5, whereas the February 21, 2016, x-ray showed moderate
degenerative disc disease at ¶ 4-L5. Dkt. 8 at 3. The
Commissioner responds that the new evidence is not material
because the ALJ found Mr. Holster's back impairment
severe at step two, and because both x-rays characterize Mr.
Holster's back impairment as “moderate, ”
making the new evidence essentially duplicative of the old
evidence. Dkt. 9 at 2-3.
October 2014 x-ray included the following finding:
“There is multilevel lumbar spine disc degeneration,
including moderate disc height loss at ¶ 5-S1 and mild
disc height loss at ¶ 4-L5”; it contained the
following impression: “Moderate lower lumbar disc facet
degeneration with disc height loss worst at ¶
5-S1.” Tr. 356. The February 2016 x-ray included the
following finding: “There is moderate degenerative disc
disease at ¶ 4-L5 and L5-S1.” Dkt. 8, ex. 2.
the October 2014 x-ray found the disc height loss at ¶
5-S1 specifically to be mild, the impression was of
“moderate” lower lumbar disc and facet
degeneration. The February 2016 finding of
“moderate” degenerative disc disease at that
location is not a striking departure from the previous
finding. The February 2016 x-ray did not reveal degeneration
in new locations or a worsening from mild to severe, for
example. Nor does the February 2016 x-ray contain any
elaboration or functional analysis to distinguish it from the
October 2014 x-ray. In short, there was no significant
qualitative difference between the two reports, and the
ultimate conclusion in the two x-ray reports was the
same-that Mr. Holster suffers from moderate lumbar
degenerative disc disease. The ALJ found Mr. Holster's
degenerative joint disease of the lumbar spine to be a
medically determinable ...