540 F. App'x 517
6th Cir.2013Background
- Deloge, a military veteran, applied for disability insurance benefits and supplemental security income after a 1992 back injury; the ALJ denied in Oct 2004, and the Appeals Council vacated and remanded.
- In Apr 2005, the ALJ found severe impairments (fibromyalgia, migraines, degenerative disc disease) and, applying the five-step framework, concluded Deloge was not disabled and could perform sedentary work including past work as a customer service representative.
- The VA issued 2001 (20% disabled) and 2008 (100% disabled) determinations; the 2008 assessment occurred after the ALJ’s 2005 denial, and the Appeals Council did not review it.
- Deloge sought judicial review; a magistrate recommended summary judgment for the Commissioner; the district court affirmed the denial.
- Deloge argued for remand under 42 U.S.C. § 405(g) based on the VA's 2008 assessment; the court held the VA evidence was not new and material, so no remand was warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VA 2008 assessment is new and material | Deloge contends the VA 2008 finding is new and material evidence warranting remand. | Commissioner argues the 2008 assessment is not new and material evidence for remand. | Not new or material; no remand required. |
| Whether VA evidence could have affected initial SSA decision | VA evidence could have altered the outcome if considered earlier. | Even if considered later, it would not compel a different result given other evidence. | Even if considered, evidence would not change 2005 denial. |
| Scope of remand review under § 405(g) | Remand is proper to address new supporting evidence. | Remand is inappropriate absent new and material evidence. | Remand not warranted under the new/material standard. |
| Whether the district court's standard of review applies de novo or abuse of discretion | Remand decision should be reviewed de novo. | Standard may be abuse of discretion; not essential here. | Court need not resolve standard; no remand even under de novo. |
Key Cases Cited
- Sullivan v. Finkelstein, 496 U.S. 617 (Supreme Court 1990) (new evidence must be material to merit remand)
- Foster v. Halter, 279 F.3d 348 (6th Cir. 2001) (burden to show new and material evidence for remand)
- Allen v. Comm'r of Soc. Sec., 561 F.3d 646 (6th Cir. 2009) (subsequent favorable VA decision may be irrelevant without new medical evidence)
- Sizemore v. Sec'y of Health & Hum. Servs., 865 F.2d 709 (6th Cir. 1988) (mere deterioration to justify remand is not automatic)
- Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269 (6th Cir. 2010) (remand standard and evidence review in SSA appeals)
- Jones v. Comm'r of Soc. Sec., 336 F.3d 469 (6th Cir. 2003) (consideration of later medical evidence and remand implications)