Atwood v. Social Security Administration, 2:19-cv-00350

Plaintiff Twyla Atwood applied for Title II disability insurance benefits alleging disability from March 31, 2011 (age 56) due to depression, diabetes, and celiac disease; her date last insured (DLI) was March 31, 2016.
Her application was denied at initial and reconsideration levels; after an initial ALJ decision and an Appeals Council remand, ALJ Eric Weiss issued a second unfavorable decision on June 22, 2018; the Appeals Council denied review, making that the Commissioner’s final decision.
Atwood moved for a sentence-six remand under 42 U.S.C. § 405(g) proffering 72 pages of Mayo Clinic records (Oct. 2016–July 2019) not in the administrative record, documenting hepatocellular carcinoma (HCC), nonalcoholic steatohepatitis (NASH), and cirrhosis.
The Commissioner conceded the records are new and that Atwood had good cause for not having them before the ALJ, but argued they are not material because HCC and much of the new evidence postdate the DLI.
The magistrate judge found the HCC evidence not material to the DLI period but concluded the new records showing NASH and probable cirrhosis reasonably related back to the DLI, and that the ALJ failed to consider those liver impairments when assessing Atwood’s RFC and symptom credibility.
Recommendation: grant Atwood’s motion for a sentence-six remand to the Commissioner for consideration of the new evidence; motions to supplement and for telephonic hearing denied as moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether proffered Mayo Clinic records justify a sentence-six remand as "new, material, and with good cause"	Records are new, obtained after ALJ, and show liver disease (NASH/cirrhosis) that existed on/before DLI and would likely change the outcome	Records not material because HCC and many findings postdate DLI; prior record showed no HCC before DLI, so ALJ decision wouldn’t change	Granted in part: new records are new and good cause exists; NASH/cirrhosis evidence is material and may relate back to DLI; remand recommended under sentence six
Whether the ALJ’s failure to consider NASH/cirrhosis undermines the RFC and credibility findings	ALJ ignored a medically determinable impairment (probable cirrhosis) that explains chronic RUQ pain and nausea and supports claimant’s reported limitations	ALJ properly relied on record before him; later-dated diagnoses do not alter the pre-DLI record	Held that ALJ did not consider probable NASH-related cirrhosis; this omission could have changed consistency findings and RFC, supporting remand

Melkonyan v. Sullivan, 501 U.S. 89 (1991) (distinguishes sentence-four and sentence-six remands and explains purpose of sentence-six remand)
Wilson v. Astrue, 602 F.3d 1136 (10th Cir. 2010) (new evidence is material if the decision might reasonably have been different had it been before the Commissioner)
Nguyen v. Shalala, 43 F.3d 1400 (10th Cir. 1994) (court may remand without ruling on merits when new and material evidence plus good cause exist)
Tirado v. Bowen, 842 F.2d 595 (2d Cir. 1988) (articulates sentence-six remand standards used by other circuits)
Vallejo v. Berryhill, 849 F.3d 951 (10th Cir. 2017) (sentence-six remands are interlocutory and do not resolve merits)
Heimerman v. Chater, 939 F. Supp. 832 (D. Kan. 1996) (sets out the three-part test for new evidence remand: new, material, good cause)
Thompson v. Sullivan, 987 F.2d 1482 (10th Cir. 1993) (treatment noncompliance and standards for using it in credibility determinations)
Frey v. Bowen, 816 F.2d 508 (10th Cir. 1987) (factors for assessing refusal of treatment in credibility analyses)