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Schalk v. Colvin

United States District Court, D. Oregon, Portland Division

June 30, 2015

ANTHONY J. SCHALK, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

ROBERT E. JONES, District Judge.

Plaintiff Anthony J. Schalk appealed the Commissioner's decision to deny his claim for disability insurance benefits under Title II of the Social Security Act. He now moves the court to remand his claim for further administrative proceedings pursuant to sentence six of 42 U.S.C. § 405(g). [Doc.# 12] The motion is denied for the following reasons.

BACKGROUND

Schalk claimed disability beginning June 30, 2007. Admin. R. 11. His insured status under the Social Security Act expired on June 30, 2011, and he must show that he was disabled on or before that date to prevail on his claim. 42 U.S.C. § 423(a)(1)(A). Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). Accordingly, the relevant period for this appeal runs from June 2007 through June 2011.

As required by the regulations, the Commissioner gathered and evaluated all of the evidence Schalk identified to support his claim. The ALJ heard testimony from Schalk, his wife, a medical expert, and a vocational expert. Admin. R. 70-107. He then issued an adverse decision. Admin. R. 113-122. The Appeals Council remanded for further evaluation of Schalk's mental impairments. Admin. R. 149-151. In September 2012, the ALJ obtaihed a consultative psycho diagnostic assessment from Karen Bates-Smith, Ph.D., a clinical psychologist. Admin. R. 834-838. Dr. Bates-Smith also completed a worksheet on which she rated the severity of Schalk's limitations on several work-related functions. Admin. R. 842-43. The ALJ then held a second administrative hearing at which he took testimony from Schalk, his wife, and a vocational expe1t. Admin. R. 36-68.

Upon completion of this extensive process, the Commissioner issued a final decision in March 2013. After receiving the adverse decision, Schalk obtained an additional psychological evaluation from Leslie Caiter, Ph.D., who issued a report dated February 16, 2015. Schalk now seeks a remand for the Commissioner to consider Dr. Carter's report.

LEGAL STANDARD FOR A SENTENCE SIX REMAND

Sentence six of 42 U.S.C. § 405(g) provides that the court

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...

Accordingly, for the court to remand a case under sentence six, the claimant must show that new evidence exists, that the new evidence is material, and that the claimant's failure to incorporate the evidence into the record during the administrative proceedings is excusable for good cause.

DISCUSSION

I. Good Cause Requirement

To demonstrate good cause for failing to present evidence during the Commissioner's administrative proceedings, a claimant must show that the evidence was not available until later. Mayes v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001). "[A] claimant does not meet the good cause requirement by merely obtaining a more favorable report once his or her claim has been denied." Mayes, 276 F.3d at 463. When a claimant fails to seek an evaluation report until after receiving an adverse decision, "the claimant must also establish good cause for not having sought the expeti's opinion earlier." Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990).

Here, Schalk sought additional evidence to support his claim only after he was denied benefits. In fact, Dr. Carter said Schalk requested the evaluation specifically to support his appeal of the Commissioners's decision to deny his social security claim. [Doc# 12-2 at 1] Schalk does not show that Dr. Cmier's opinion could not have been obtained earlier. He claims ...


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