*1 jections aside, penalty the death simply ALLEN, Almon Dale Plaintiff- justify expense.
does not its Appellant, Recent reports news indicate that v. cost of penalty the death becoming part OF COMMISSIONER SOCIAL SECU public capital punishment debate on RITY, Astrue, Michael J. Commis begun has to influence policymaking.17 sioner, Defendant-Appellee. very That strikes me positive as develop- No. 08-5342. hope ment. I it continues. United States Court of Appeals, Sixth Circuit. Submitted: Oct. 2008. Decided and Filed: March 2009. alty, profound uncertainty. but We are confi- Penalty, the Death Vegas March Sun, Las dent that large, the effects are not but we available at ww w.lasvegas- remain unsure they even of posi- whether are sun.com/news/2009/mar/04/debating-cost- negative”). tive or death-penalty/; Bellisle, Martha Nevada Bill Moratoñum, Requires Study Penalty Death See, e.g., Opponents Focus on Cost in Cost, 3, 2009, March Gazette-Journal, Reno (National Penalty Death Debate Public Radio www.rgj.com/article/20090303/ available at 1, 2009); Kerr, April Judy What Pnce Ven- 18/90303060; Quillen, NEWS Ed The Death geance, Mar. Chronicle, San Francisco Costs, Penalty’s 1, 2009, March Post, Denver 2009, A15; Saving at Money, Lives and available at www.denverpost.com/ 12, 2009, Economist, Mar. available at www. perspective/cL-11795714; Urbina, Ian Citing economi st.com/world/unitedstates/displayS- Cost, States Penalty, Consider End to Death tory.cfm?story_id=13279051; Michelle Mill- 25, 2009, N.Y. February at Al. Times, hollon, Executions, Economics Advocate 8, 2009, 1A; Mexico, In Mar. addition to New at Deborah which abol- Capitol News, Times, Hastings, 18, 2009, ished the penalty In Hard Executions death Become March Question Cost, states, Colorado, number including March Neva- Press, Associated da, Montana, Nebraska, Kansas, available ww Maryland, w.usato- day.com/news/nation/2009-03-07-exepen- Hampshire and New are reconsidering their sive-to-execute_N.htm; Mills, capital Many punishment policies, Steve In part because States, Slowly Killing Cost is Penalty, Colorado, Death the cost penalty. of the death 7, 2009, Chicago example, March available at currently considering a bill Tribune, archives.chicagotribune.com/ (H.B.09-1274) proposes to abolish the 2009/mar/07/nation/chi-death-penalty-costs- penalty death spend and instead money mar08; Goldman, Abigail Debating the Cost investigating saved on cold cases. *2 Housman, Housman Craig BRIEF: ON Paducah, Associates, Kentucky, Ap- for & Albanese, Nancy R. M. Jerome pellant. Sloan, Robert Bartlett, Dennis Mary Ann Sharfman, Holly A. Williams, Elyse Sara Administration, Security Grimes, Social Atlanta, Counsel, General Office Barr, United H. Assistant Georgia, James Louisville, Kentucky, for Attorney, States Appellee. GILMAN, CLAY,
Before: ROGERS, Judges. Circuit ROGERS, J., opinion delivered GILMAN, J., joined. court, in which 654-55), CLAY, delivered (pp. J. dissenting opinion. separate OPINION ROGERS, Judge. Circuit and was for applied Allen Almon Dale peri- security benefits social denied at- While ending September od case, Allen reopen this initial tempting application a new benefits filed Al- granted Administration Security Social 12, 2006. September beginning len benefits first of his the denial appeals now admin- the initial claiming that application, proce- agency violated judge law istrative dural regulations by failing to articulate pain cervical, severe tho- lower “good reasons” discounting opinion racic lumbar spine. I have included of his treating physician. Alternatively, the progress notes and MRI scan results *3 argues Allen subsequent favorable from physician, this upon your re- new, determination serves as material evi- records, view of those you would be able in dence the initial requiring decision a to state that it is reasonable to conclude remand to the agency. Because the ALJ that at 2003, all times since December properly followed the Social Security Ad- Mr. symptoms/conditions Allen’s have ministration’s regulations, and because the essentially remained unchanged? decision, own, favorable on its 2. With diagnosed his cervical and lum- evidence, is not new and material we af- bar spine dating conditions to at least firm the district court’s upholding decision 2003, you December do believe it rea- the Commissioner’s denial of Allen’s initial that, sonable as Mr. stated, Allen has he request. benefits would “good” have days and “bad” with I. regard to symptoms, such that on “good” days, he can “maybe stand an A. Initial Denying Decision Benefits hour or two” but that on days, “bad” he Allen applied for disability insurance has to off get his only feet after 6, benefits on 2004, December claiming minutes or less? that he became disabled January on 2002, due to degenerative disease, 3. regard disc With to the issue of walking, neck, back, and shoulder pain, severe Mr. Allen states that on “good” days, he headaches, and leg Agen- weakness. The might be able to walk up to a mile at cy denied Allen’s claim initially and on time, a but that on days, “bad” he is rehearing, and requested and was unable to walk much more than one granted a hearing an before administrative Again, block. light in of his diagnosed (“ALJ”). law judge On September spine conditions, your is it opinion that 2006, the ALJ issued a finding decision such limitations are credible and reason- Allen not disabled. able? decision, In his applied ALJ the five- 4. Mr. Allen has testified when he is step analysis required by 20 C.F.R. having day “bad” with his neck and 404.1520(a) to determine if Allen was back, estimated to occur at least or one part disabled. As present- days two per week, requires he recum- ed, the ALJ reviewed a letter from Dr. bent rest to deal with pain and would McCord, a physician who began treating not be up able to be on his feet for a Allen in December 2005. Dr. McCord’s total of more than four in hours an 8 responded letter to the following series of hour period. upon Based the results of questions posed by Allen’s attorney in an your examinations and imaging study questionnaire: earlier findings does he have a spinal condition 1.Although Mr. Allen begin did not which is reasonably capable of causing you treatment with until December symptoms these as he describes them? you are aware that his cervical and spine lumber problems AR are longstand- 270-71. Dr. simply McCord an- ing duration, and he previously sought “yes” swered to all questions. of these treatment with physicians, other includ- The give ALJ did not weight much Dr. ing Dr. Gaw, Miranda for his complaints letter, stating: he un- surgery of neck records attached were answers affirmative These April 19 and Dr. derwent undersigned. helpful request might referred the Appeals Council merely affirmed McCord the initial the claimant’s who made to the ALJ reopen to conclude reasonable be unchanged file time to remained had decision extended symptoms opinion an On court.1 district December civil action since speculative to be complaint found undersigned Allen filed March not seen had Dr. for the McCord District Court since States United until some time first seeking for the re- Kentucky claimant District Western *4 8, 2005. later, on December years 9, April two On denial. of the benefits view to opine also was asked Dr. McCord request to 2007, Allen’s ALJ the denied or de- complaints the claimant’s whether newly sub- on the case based the reopen symptoms and abilities of his scriptions records. surgical mitted response The affirmative credible. are to request denying Allen’s In his letter help no is of Dr. from McCord case, the ALJ stated: the reopen of credibili- the since issue undersigned does surgery occurrence mere The to the Commissioner. reserved ty is any of evidence a scintilla provide not AR 39. claimant’s condi- change in the negative and of the evidence reviewing all After improved have surgery could tion. The the ALJ analysis, conducting the at- and his The claimant condition. the has resid- “the claimant concluded any change prove to torney have failed carry lift ánd to capacity ual functional warrant which would in his condition pounds ten occasionally and twenty pounds any finding pertinent change any in or can stand claimant The frequently. ultimate or in the deci- at issue matter workday eight-hour per hours for six walk Therefore, evidence presented the sion. (with workday per hours sit for six and can and and “material” “new” is not both breaks).” “[T]he AR at 37-38. normal regulatory standard satisfy the does making a capable of has been claimant reopening. for work to other adjustment successful in the nation- numbers significant exists Subsequent Decision B. ‘not disabled’ finding of economy. A al Granting Benefits 40. at AR appropriate.” therefore denying ALJ’s decision the initial While the ALJ’s a review requested Allen Appeals the before pending was benefits 2006, 14, Ap- the On December decision. disability Council, applied again Allen request denied Council peals a “Notice received benefits. final the deci- became decision the ALJ’s 2007, February dated letter Award” January On the Commissioner. sion of to be disabled found he was stating that to re- request 5, 2007, Allen submitted day the after starting September Appeals Council the his case to open evidence, other than no evidence but notifying attorney him al a letter to Allen’s 1. In prior ALJ, was submitted Exhibit 13F Appeals Council referral to decision, nearly 5 September were not time- surgical records noted Moreover, no Appeals hearing. Coun- the ALJ or the after ly months submitted was submitted to evidence initial review: cil on additional November with the Appeals Council notes that further Appeals Council review. request for Judge granted ... Law Administrative atAR addition- time to submit sufficient claimant the ALJ’s initial decision.2 The award let- tive already ALJ, before the ter did not state the reasons this dis- therefore not material.
ability determination. magistrate judge rejected also Al- contention, len’s second finding that C. Proceedings District Court provided ALJ good reasons for disregard- summary Allen’s motion for judgment in ing Dr. questionnaire responses. the district court seeking remand to the The magistrate judge found that the ALJ’s Commissioner raised three issues: rejection Dr. of McCord’s credibility deter-
A. In view of favorable mination appropriate was under Social Se- determination, effective the day after curity regulations and Sixth Circuit prece- Judge decision, Schum’s dent. [under remand 405(g)] U.S.C. Finally, magistrate deter- judge appropriate. mined that the district court did not have B. Did the judge administrative law subject jurisdiction matter to review Al- legal by commit *5 failing error to provide len’s final claim. magistrate judge good reasons for disregarding the treat- interpreted this request contention as a for ing spine specialist’s verification of Mr. judicial “a remand for purpose the of re-
Allen’s limitations? quiring the Commissioner to follow his C. As a matter affording of the Social own standards and rules pertaining to re- Security claimant process, due is the opening prior of denial decisions.” The required Commissioner to his own follow magistrate judge concluded that Allen rules and base his determination on a failed to show this claim falls under correct understanding of the facts when one of the limited situations a where dis- considering a request reopen? trict court authority has the to review final 12, 2007, On October the magistrate judge decisions the of Commissioner. assigned to this filed a report case 16, January On the district court recommendation rejecting all of Allen’s adopted magistrate the judge’s report and contentions and upholding the agency’s de- recommendation upholding the decision of nial of magistrate benefits. judge re- the Commissioner. appeals. jected request Allen’s for remand under 1) sentence six 405(g) of because: a II. subsequent decision, own, favorable on its does not constitute new and material evi- On appeal, Allen arguments raises based dence 405(g), under and the new deter- on the first and second contentions mination likely was based Allen’s new district court motion. Allen claims that 2) age category; surgical the records are the initial ALJ agency violated regulations not material for the by reasons stat- failing to “good articulate reasons” for ed the April ALJ’s deny- letter discounting Dr. questionnaire ing request Allen’s reopen case; the responses, and that subsequent favor- 3) the raw medical data contained in the able determination new, serves as material surgical records was cumulative of proba- evidence requiring a remand to agency 2. Security Pursuant to the Social Administra- Hearings, Appeals istration’s Litigation 30, 1999, tion’s December Emergency (“HALLEX”), Mes- Law 1-5-3-17, Manual Volume sage a grant of benefits procedure I.A. It is this that creates the cannot extend day earlier than the after the "day-later” common change in eligibility de- prior denial. See Security also Social Admin- termination. persistence of regarding question first The dis- 405(g). §of six under Allen’s condition: however, found court, properly trict merely under either affirmed Dr. appropriate not McCord remand to conclude reasonable might be claims. remained un- symptoms had
claimant’s 2003, an December of changed since A. undersigned found to be opinion agency pro fully satisfied The ALJ Dr. had not since McCord speculative good by providing requirements cedural time until claimant for the first seen the Dr. McCord’s discounting reasons later, on December years some two re and therefore responses, questionnaire failure to do so. not mand brief, it may be this stated reason While agency remanded cases
We have that an ALJ factors several of the reaches its own follow fails to agency when determining what must consider when stating “good reasons” by regulations by non-controlling opinion weight give weight to or no diminished for giving source, including: length treating See, e.g., Wil opinion. treating physician’s relationship and fre treatment Sec., 378 F.3d Soc. son v. Comm’r of examination, 20 C.F.R. quency (6th Cir.2004); v. Comm’r Bowen 546-47 404.1527(d)(2)(i); nature and extent (6th Sec., Cir. 478 F.3d Soc. relationship, treatment 2007). accepted case in this The ALJ 404.1527(d)(2)(h); supportability and the *6 rejected opinions, Dr. McCord’s of some 404.1527(d)(3). opinion, of the no gave others speculative, and as others noted properly magistrate judge The with decisions they dealt weight because responses final three Dr. McCord’s that exclusively to the reserved Commissioner. opinion3 two the doctor’s presented support to reasons provided good The ALJ 1) spinal Allen’s whether distinct issues: conclusions. of these each symp- cause the reasonably could condition Allen, by limitations described and toms require Security regulations Social 2) symptoms specific and whether these for the reasons good provide to agency by Allen are limitations as and described opin- physician’s treating to a weight given of the first issue regard to With credible. question- four ion, Dr. as McCord’s such reasonableness, agreed the ALJ general 20 C.F.R. responses. naire affirma- Dr. McCord’s accepted and 404.1527(d)(2) al- with will “[w]e states the evi- considering responses: “After of tive in our notice reasons good ways give finds that record, undersigned dence of weight for or decision determination medically im- determinable claimant’s opinion.” treating source’s your we give expected to reasonably be could pairments dis- reason for good provided ALJ ” alleged symptoms.... produce response to Allen’s Dr. counting McCord’s prog- diagnosis and including your symptoms, discounting for to the reasons addition In impair- nosis, despite ALJ, do you still what can by provided responses McCord's Dr. ment©, restric- your physical or mental and responses appear through fourth the second added). Dr. McCord’s (emphasis tions.” Id. opinions” scope “medical of outside to be questions address 404.1527(a)(2). three responses to the final in 20 C.F.R. as defined spi- relationship Allen's between general 404.1527(a)(2) opin- medical defines Section symptoms/limitations and condition psy- nal physicians and from "statements ions as cause, addressing specif- may rather than judgments about chologists that reflect ... Allen’slimitations. ic extent of your impairment(s), severity and of the nature 652 evaluating
When Allen’s statements of (providing a non-exhaustive list of exam however, subjective pain, the ALJ was re- ples of issues reserved to the Commission quired go er). to further and determine the Precedent agency this circuit and intensity persistence actual and of Allen’s rulings support the ALJ’s conclusion that symptoms symptoms and how these limit Dr. opinion McCord’s credibility Allen’s ability to work. 20 C.F.R. addresses one of issues reserved to the 404.1529(c)(“When the medical signs or Commissioner and therefore is not a medi laboratory findings you show that have a cal opinion requiring consideration. medically impairment(s) determinable “[Cjredibility determinations with respect reasonably could expected produce be subjective complaints pain rest with your symptoms, pain, such as we must the ALJ.” Sec’y Siterlet v. Health & then intensity evaluate the persistence Servs., (6th Human F.2d your symptoms so we can deter- Cir.1987); see also Walters v. Comm’r of your mine how symptoms your capac- limit Sec., (6th Cir.1997) Soc. 127 F.3d ity work.”); 404.1529(b) see also (“[A]n ALJ’s findings based on the credi (“The finding your impairment(s) bility applicant are to be accorded reasonably could expected produce be great weight deference, particularly your pain or symptoms other does not since an charged ALJ is with the duty of involve a determination as to the intensity, observing a witness’s demeanor and credi persistence, or functionally limiting effects bility.”); Soc. Sec. Rul. 96-7p, 1996 WL your symptoms.”). It was at this sec- (1996). *4at ond step that the ALJ determined “that Because the agency ALJ followed reg- the claimant’s statements concerning the by ulations stating good reasons for dis- intensity, duration limiting effects of counting Dr. questionnaire re- these symptoms are not entirely credible.” sponses, remand agency is not provided ALJ a good reason failing to do so. *7 for rejecting Dr. questionnaire responses to the they opined extent that B. credibility the of Allen’s statements re The subsequent determination that garding specific the limitations of spi his Allen was disabled does not warrant a
nal condition: remand of his initial benefits denial. Sen Dr. McCord was also asked to opine § tence six of 42 405(g) U.S.C. describes a whether the complaints claimant’s or de- situation where a court can remand a case scriptions of his abilities symptoms agency: to the are credible. affirmative response The may The court ... any at time order
from Dr. McCord help is of no additional evidence to be taken before undersigned since the credibility issue of the Commissioner of Security, Social but is reserved to the Commissioner. only upon showing a that there is new Social Security regulations state that evidence which is material and that “[ojpinions on some issues ... are not good there is cause the failure to opinions are, instead, medical ... but opin- incorporate such evidence into the rec- ions on issues reserved to the Commission- in prior ord proceeding. er they because are administrative find- ings that dispositive case; i.e., are of a that argues Allen that subsequent his favorable would direct the determination or decision decision finding beginning him disabled disability.” 404.1527(e) of 20 C.F.R. day the after the initial decision denying
653 But remand under sen- evidence. evi same and material new constitutes benefits the “cor- 405(g). not to address tence six is meant remand under justifying dence found that correctly of the administrative determina- judge rectness magistrate itself, as already decision before favorable made on the evidence subsequent tion” supporting addition, the evidence it is over- Id. In opposed the initial ALJ.4 decision, constitute does not subsequent “new to read the words evidence” ly broad § 405(g). under material evidence new de- subsequent in six include sentence meet his burden Therefore, did not Allen In based on the same evidence. cision under proper that remand showing of leg- noted that the Melkonyan, the Court Sec’y v. See Sizemore this section. of that history 405(g) of shows islative Servs., F.2d 711 865 Health & Human unmistakably that made it clear “Congress Cir.1988). (6th of district power to limit the it intended interpretation Supreme Court’s evidence’ remands for‘new courts to order Melkonyan v. in 405(g) six of sentence at Security cases.” Id. in Social Sullivan, 111 S.Ct. 501 U.S. S.Ct. (1991), as follows: states
L.Ed.2d appro- A six remand would be sentence affirm, modi- does court not The district favor- subsequent priate based on decision; Secretary’s fy, or reverse only subsequent if the deci- able decision way as to any not rule it does and material supported by new sion was deter- administrative correctness for not good had that Allen cause evidence Rather, court remands mination. It is Al- prior proceeding. raising light has come evidence because new showing under to make this burden len’s at the claimant available to was not that Sizemore, at 865 F.2d 405(g), see proceed- time of the administrative On to meet this burden. he has failed but might have evidence ing and argue there is appeal, does prior pro- changed outcome might evidence that any new substantive ceeding. denial, previous of the change the outcome 2157. Under 111 S.Ct. Id. exclusively on exis- but instead relies six, existence of the the mere To subsequent decision. tence alone, favor, standing in Allen’s decision remand is argues that Allen extent change the be can cannot possibility on the based appropriate A subse- prior proceeding. outcome evidence, this contradicts and material new supported may decision be *8 quent favorable § that re- 405(g) language of the clear under and that is new material by evidence new evi- that there is “showing a quires new is not itself the decision 405(g), but is there is which material dence evidence. and material incorporate for the failure good cause deci subsequent favorable If a prior ain the record evidence into such substantive any from separated new sion— 405(g) (empha- 42 U.S.C. proceeding.” it the decision—could supporting evidence added). sis six, sentence evidence” under be “new self summary judgment In his motion change the might it only way that however, court, the district before by the proceeding the initial outcome of corre- surgeries and back past the mentioned analysis of alternative power of its remanding cause for contrast, tary, with or without 405(g) allows four of In argue for a rehearing.” Allen does a affirming, modi- judgment "a a court to enter sentence four remand. reversing of the Secre- fying, the decision or 654
sponding
possible
medical records as
correctly
new case
identified how Allen’s sec-
and material evidence.
already
Allen had
ond determination
likely
was
on a
based
presented
Appeals
this evidence to the
age
different
category because he turned
Council, which in turn
ques-
referred the
55 before the
ruling:
second
to a
“[D]ue
tion of reopening the initial
age
decision to the
‘different
classification’
contemplat-
as
original
properly rejected
Bruton,
The ALJ
by
ALJ.
ed
...
appears
this evidence as cumulative and not mate-
Commissioner was
as a
matter
rial
denial of
Allen’s motion to re-
law and pursuant
‘grids’
to find the
open, and
rejected
the district court
plaintiff
disabled for
period
after Feb-
evidence as not material.
ruary
Because Allen
2007.” This case highlights the
failed to show that there is “new evidence problem
treating
with
a subsequent favor-
material,”
which
the district court cor-
able decision as “new evidence which is
rectly found that remand
material,”
under sentence
without requiring
plaintiff
six
405(g)
appropriate.
is not
show what
supported
evidence
that deci-
sion.
new
determination might be
Astrue,
Hayes
Allen relies on
v.
based on change
in the claimant’s condi-
F.Supp.2d
(W.D.Va.2007),
tion that occurred after the initial determi-
Barnhart,
Bradley v.
ions stand for
proposition
subsequent determination is itself new evi
reasons,
For
affirm
these
we
the district
meriting remand,
dence
opinions
these
court’s
upholding
decision
the Commission-
misapply
405(g) for the reasons stated
er’s
denial
Allen’s initial benefits re-
above.
quest and dismissing
complaint.
addition,
In
several of these cases distin-
*9
CLAY,
Judge, dissenting.
Circuit
guish
Massanari,
Bruton v.
quent Be- a sentence six remand. support
would support- of the evidence
cause examination of bene- subsequent award
ing the SSA’s properly evaluate necessary to
fits is evidence which
whether there is “new
material,” I remand for a determi- would the available evidence BELL, Petitioner-Appellant,
nation of whether Derrick possible the sole basis indicates v. sentence six is the subse- remand under JONES, Warden, Carson In view Kurt favorable determination.1 quent Facility, City contradictory state incomplete and Correctional of the record, Respondent-Appellee. preferable disposition of the in- to remand with appeal would be this No. 08-1775. regarding clarification structions for we are to consider state of the evidence Appeals, States Court United Contrary to appeal. with this connection Sixth Circuit. problem here is majority’s opinion, the April fails to reveal simply that the record evidence, that Allen has material or new MI, Bell, pro se. City, Derrick Carson burden; rather, the con- failed to meet Korbakis, Attorney I. Assistant Raina record ambiguous state of the fusing and General, Attorney Michigan ruling by Office prior to a should be addressed ‘grids’ plaintiff pursuant to find conclusory na- demonstrating the 1. Further February period for the after majority’s opinion suggestion disabled is its ture of the However, awarding Al- the letter 2007.” Id. subsequent finding that Allen was provides as to how age no indication likely len benefits based on a different disabled "was Al- joins at its determination Op. majority the SSA arrived category.” at 654. The Thus, majority only can speculating len was disabled. magistrate judge "[t]he underlying the speculate the reasons as to might be based on new determination *10 was that Allen conclusion [age]” SSA’s change the claimant’s of law and disabled. "as a matter the Commissioner