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Dobson v. Astrue

November 4, 2010

DAVID R. DOBSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Presently before the court is plaintiff's motion for remand pursuant to sentence six of 42 U.S.C. § 405(g).*fn1 For the reasons that follow, the undersigned will grant plaintiff's motion and remand this matter to the Commissioner of Social Security ("Commissioner") for further administrative proceedings.

I. BACKGROUND

A. Plaintiff's Unsuccessful First Application for Benefits

On June 12, 2006, plaintiff filed an application for Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income under Title XVI of the Act, alleging a disability onset date August 1, 2005. (See Admin. Tr. ("AT") 72-80.) Plaintiff's claim of disability is based on his condition of type 1 diabetes mellitus, with complications of peripheral neuropathy and peripheral retinopathy.*fn2

The Social Security Administration denied plaintiff's application initially and upon reconsideration. (See AT 52-66.) Plaintiff filed a timely request for a hearing, and, on April 7, 2008, an Administrative Law Judge ("ALJ") conducted a hearing on plaintiff's claims. (AT 29-51, 68.) Plaintiff, who was represented by counsel at the hearing, was the only person who testified at the hearing.

In a decision dated May 22, 2008, the ALJ denied plaintiff's application, finding that plaintiff was not disabled because plaintiff could perform jobs that exist in significant numbers in the national economy.*fn3 (See AT 9-21.) In conducting the appropriate sequential analysis, the ALJ found at step one that plaintiff had not engaged in substantial gainful activity since August 1, 2005, the alleged date of onset. (AT 16.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "diabetes mellitus type I with diabetic peripheral neuropathy and diabetic retinopathy." (AT 16.) At step three, he determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (AT 16.) After assessing plaintiff's residual functional capacity ("RFC"), the ALJ found at step four that plaintiff's RFC precluded him from performing any past work as a construction worker. (AT 19.) At step five, however, the ALJ concluded that "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." (AT 20.) Accordingly, the ALJ found that plaintiff was not disabled.

The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) Plaintiff subsequently filed this action.

B. Plaintiff's Subsequent, Successful Applications for Benefits

On August 11, 2010, the undersigned granted plaintiff's request for leave to file a motion for an order remanding this matter to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence six. (Dkt. No. 28.) Neither party had yet filed a motion for summary judgment. Plaintiff filed a motion for remand, and the Commissioner filed a response. (Dkt. Nos. 29, 30.)

Plaintiff's motion for remand is based on a subsequent, favorable decision by the agency, which granted plaintiff disability benefits. On July 1, 2008, and July 23, 2008, plaintiff filed subsequent applications for Title II and Title XVI benefits, respectively. On February 19, 2010, the ALJ issued a notice of a "fully favorable" decision with respect to these subsequent applications. (Ragnes Decl., Ex. B, Dkt. No. 25.) That notice states, in part:

I announced the basis for my decision at the hearing held on February 12, 2010. I adopt here those findings of fact and reasons.

To summarize briefly, I found you disabled as of May 23, 2008 because the symptoms of your brittle diabetes mellitus type I with retinopathy and neuropathy and severe bilateral lower extremity arterial disease and amputation of the left leg below the knee are so severe that your impairment meets the requirements of one of the impairments listed in the Listing of Impairments. (Id. (emphasis added).) Plaintiff has not submitted a hearing transcript with respect to the favorable decision, and nothing presently before the court suggests why the ALJ chose May 23, 2008 as the disability onset date. Plaintiff represents in his motion that the favorable decision based, in part, on plaintiff's "series of amputations commencing about March 20, 2009 with his toe and culminating in a below the knee amputation on April 15, 2009... and that [plaintiff] was virtually legally blind in [sic] February 17, 2009." (Pl.'s Mot. for Remand at 3.) The Commissioner represents that "the ALJ generously chose the earliest possible date for a finding of disability." (Opp'n to Pl.'s Mot. for Remand at 5.)

As discussed below, plaintiff seeks a "sentence six" remand on the grounds that the subsequent, favorable decision constitutes new and material evidence that bears directly on the determination of the disability onset date. In essence, he requests a remand so that the agency can reconcile the ALJ's finding on "not disabled" made on May 22, 2008, with the ALJ's subsequent finding that plaintiff was disabled as ...


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