United States District Court, W.D. Washington Tacoma
ORDER ON PLAINTIFF'S MOTION FOR REMAND
W. Christel United States Magistrate Judge.
Michael Allen Shaw filed this action, pursuant to 42 U.S.C.
§ 405(g), for judicial review of Defendant's denial
of his application for disability insurance benefits
(“DIB”). Currently pending in this case is
Plaintiff's Motion for Sentence Six Remand for
Consideration of Additional Evidence. Dkt. 10. Pursuant to 28
U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and
Local Rule MJR 13, the parties have consented to have this
matter heard by the undersigned Magistrate Judge.
See Dkt. 2.
Court concludes Plaintiff has failed to show he meets the
good cause requirement for remand pursuant to sentence six of
42 U.S.C. § 405(g). Therefore, the Motion (Dkt. 10) is
initiated this case on September 28, 2017. Dkt. 1. Defendant
filed the Administrative Record-Answer on December 11, 2017,
and the Court entered a Scheduling Order that same day. Dkt.
8, 9. Plaintiff's opening brief was due on January 8,
2018. See Dkt. 9. On January 4, 2018, Plaintiff
filed the Motion. Dkt. 10. He did not file an opening brief
and, in the Motion, requested the briefing schedule be
suspended pending the resolution of the Motion. See
id. at p. 1. Defendant filed her Response on January 18,
2018. Dkt. 11. Defendant requests the Motion be treated as
the opening brief and denied. Id. In the
alternative, Defendant requests the length of the Motion be
subtracted from the page limitation in any subsequently-filed
brief. Id. at p. 2. Plaintiff filed a Reply on
January 23, 2018. Dkt. 12.
Motion, Plaintiff requests the Court remand this case
pursuant to sentence six of 42 U.S.C. § 405(g). Dkt. 10.
Attached to the Motion is a letter from Plaintiff's
attorney, Charles Talbot, sent to the Appeals Council on July
5, 2016 and a report completed by Dr. Joseph A. Moisan, Ed.D,
NCC, CCM. Dkt. 10-1. Plaintiff contends Dr. Moisan's report
provides evidence which contradicts the vocational
expert's testimony that was relied on by the
Administrative Law Judge (“ALJ”). See
Dkt. 10, 10-1.
plaintiff desires the Court to consider “new
evidence” that is not part of the record when the
plaintiff files the complaint, the Court shall apply sentence
six of 42 U.S.C. § 405(g) to determine if it has
jurisdiction to review the new evidence. Sentence six of 42
U.S.C. § 405(g) authorizes a reviewing court to remand a
case to the Commissioner “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);
see Melkonyan v. Sullivan, 501 U.S. 89 (1991).
Notably, “[a] claimant does not meet the good cause
requirement by merely obtaining a more favorable report once
his or her claim has been denied. To demonstrate good cause,
the claimant must demonstrate that the new evidence was
unavailable earlier.” Mayes v. Massanari, 276
F.3d 453, 463 (9th Cir. 2001) (citing Key v.
Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985)).
Motion, Plaintiff does not explicitly explain how he meets
the requirements for a sentence six remand. See Dkt.
10. Plaintiff appears to argue Dr. Moisan's report is
material because it contradicts the testimony of the
vocational expert that the ALJ relied on to find Plaintiff
was not disabled. Id. Plaintiff does not allege he
meets the “good cause” requirement. Id.
even assuming Plaintiff has met the materiality requirement,
Plaintiff has not demonstrated good cause. As stated above,
to demonstrate “good cause, ” Plaintiff must show
the new evidence was unavailable earlier. Mayes, 276
F.3d at 463. In his Motion, Plaintiff provides no
explanation, and the Court cannot infer, why Dr. Moisan's
report could not have been available earlier, before the ALJ
issued her decision. See Dkt. 10. Instead, Plaintiff
obtained and submitted Dr. Moisan's report nearly six
months after the ALJ hearing and two months after the ALJ
issued her decision. See AR 39-77 (hearing dated
January 6, 2016); AR 12-38 (ALJ decision dated April 26,
2016); Dkt. 10-1 (Dr. Moisan's report dated June 30,
2016). Dr. Moisan states he was requested by Plaintiff's
counsel to review the jobs testified to by the vocational
expert at the January 6, 2016 hearing. See Dkt.
10-1, p. 5. Plaintiff's counsel represented Plaintiff at
the hearing and fails to provide any explanation regarding
why he did not obtain the report between the hearing and the
ALJ's decision. See Dkt. 10. Therefore,
Plaintiff has not met his burden of showing that the new
evidence was unavailable earlier, and therefore, he has not
met the requirements of a remand under sentence six of 42
U.S.C. § 405(g). See Clem v. Sullivan, 894 F.2d
328, 332 (9th Cir. 1990) (citing Key, 754 F.2d at
1551) (“A claimant does not meet the good cause
requirement simply by obtaining a more favorable report from
an expert witness once his claim is denied ... The claimant
must establish good cause for not seeking the expert's
opinion prior to the denial of his claim.”); Cherry
v. Berryhill, 2017 WL 750307, at *2 (W.D. Wash. Feb. 27,
2017) (finding plaintiff failed to meet good cause standard
where there was no explanation was to why new evidence that
was submitted to the Appeals Council was not available
earlier); Vasquez v. Colvin, 2014 WL 65305, at *7
(D. Ariz. Jan. 8, 2014) (same).
Court notes, in his Reply, Plaintiff belatedly argues the ALJ
made it clear she was not going to allow cross examination of
the vocational expert and thus, it could be assumed the ALJ
would not consider anything in writing after the hearing.
See Dkt. 12. Plaintiff did not raise this argument
in his Motion and, thus, has waived the argument.
See Dkt. 10, 11, 12; Thompson v.
Commissioner, 631 F.2d 642, 649 (9th Cir. 1980),
cert. denied, 452 U.S. 961 (1981) (“appellants
cannot raise a new issue for the first time in their reply
briefs”) (citing U.S. v. Puchi, 441 F.2d 697,
703 (9th Cir. 1971), cert. denied, 404 U.S. 853
(1971)); Ass'n of Irritated Residents v. C & R
Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D. Cal.
2006) (“It is inappropriate to consider arguments
raised for the first time in a reply brief.”).
even if the Court were to consider this argument, Plaintiff
has provided only a speculative statement that the ALJ would
not consider additional evidence submitted to her after the
hearing. Plaintiff's speculation regarding the ALJ's
conduct does not explain why he was unable to obtain the
evidence earlier. Therefore, even if the Court were to
consider this argument, the Court finds Plaintiff has failed
to meet the “good cause” requirement.
above stated reasons, the Court concludes Plaintiff has not
shown the new evidence was unavailable earlier, and
therefore, he has not met the requirements of a remand under
sentence six of 42 U.S.C. § 405(g). Accordingly,
Plaintiff's Motion (Dkt. 10) is denied. The Court
declines to dismiss this ...