ROXIE HOLLON, on behalf of JOSEPH W. HOLLON, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 04-6163
United States Court of Appeals for the Sixth Circuit
May 22, 2006
06a0171p.06
ROGERS and SUTTON, Circuit Judges; ROSEN, District Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 03-00037—Jennifer B. Coffman, District Judge. Argued: July 29, 2005. Decided and Filed: May 22, 2006.
ARGUED: Wolodymyr Cybriwsky, LAW OFFICES OF WOLODYMYR CYBRIWSKY, Prestonsburg, Kentucky, for Appellant. Laurie G. Remter, SOCIAL SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee. ON BRIEF: Wolodymyr Cybriwsky, LAW OFFICES OF WOLODYMYR CYBRIWSKY, Prestonsburg, Kentucky, for Appellant. Laurie G. Remter, Mary Ann Sloan, Dennis R. Williams, Nadine DeLuca Elder, Richard V. Blake, SOCIAL SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee.
OPINION
ROSEN, District Judge. In this appeal, Plaintiff/Appellant Roxie Hollon (“Hollon”) challenges the district court’s decision affirming the determination of the Defendant/Appellee Commissioner of Social Security (the “Commissioner”) to terminate the payment of child’s Supplemental Security Income (“SSI”) benefits to Hollon’s son, Joseph W. Hollon (“Joseph”). Specifically, Hollon advances three contentions on appeal: (i) that the district court erred in declining to compel the Commissioner to consider new evidence of Joseph’s medical condition in the course of a remand to reconstruct a lost administrative record; (ii) that the Commissioner’s
I. FACTUAL AND PROCEDURAL BACKGROUND
Joseph W. Hollon was born on December 3, 1989. In April of 1990, Joseph’s mother, Roxie Hollon, applied on his behalf for child’s Supplemental Security Income benefits, citing asthma as his impairment. On March 29, 1991, the Social Security Administration determined that Joseph’s asthma was disabling, and awarded child’s SSI benefits for the period beginning April 1, 1990.
A. The Termination of Joseph’s SSI Benefits and the Ensuing Administrative Proceedings
On April 16, 1999, the Social Security Administration notified Hollon that Joseph’s SSI benefits would cease in June of 1999, based on the agency’s determination that her son was no longer disabled. Hollon sought reconsideration of this decision, but the agency notified her on May 1, 2000 that it was adhering to its determination that Joseph was no longer eligible for SSI benefits. Hollon was further advised of her right to seek review of this decision by an Administrative Law Judge (“ALJ”).
Hollon promptly requested an ALJ’s review in a Social Security Administration form submitted on May 3, 2000. This form included two check boxes, inviting Hollon to choose between “appear[ing] at a hearing” or allowing the ALJ to decide the matter “based on the evidence.” (Request for Hearing Form HA-501, Admin. Record at 52.) It appears that Hollon initially checked the box reflecting her desire for a hearing, but that she blackened this out and instead checked the box indicating that she did not wish to attend a hearing.1 (See id.)
In the course of reviewing the record, ALJ John M. Lawrence noted Hollon’s apparent election not to appear at a hearing, and sought to ensure that this accurately reflected Hollon’s wishes. Thus, the ALJ wrote to Hollon on March 6, 2001, stating:
In reviewing you[r] file, I noted that you waived your right to appear and give evidence, and you requested that a decision be made based on the evidence of record. After reviewing the evidence in your case, I feel that it may be to your benefit to appear and testify at a hearing.
If you should decide to appear at a hearing, you will be notified in advance of the time and place. Please mark below your choice, sign on the signature line of this letter, and return this letter to me as soon as possible.
(ALJ’s 3/6/2001 Letter, Admin. Record at 277.) Immediately below this text, Hollon was invited to express her preference regarding a hearing, and she responded by placing a check mark next to the line stating, “I do not wish to appear and testify at a hearing and request that a decision be made based on the evidence of record.” (Id.) She then signed and returned the letter to the ALJ, accompanied by a signed Form HA-4608 in which she confirmed the waiver of her right to appear before the ALJ. (See Form HA-4608, Admin. Record at 278.)
On April 23, 2001, Hollon requested that the Appeals Council review the ALJ’s decision. Hollon was represented by counsel in this phase of the administrative proceedings, and her attorney submitted additional medical records from the Kentucky River Medical Center and a family physician. In a decision dated November 20, 2002, the Appeals Council denied Hollon’s request for review. The Appeals Council explained that the medical records provided by Hollon’s attorney had been considered and “made a part of the record,” but that neither the contentions of counsel nor the additional evidence “provide[d] a basis for changing the Administrative Law Judge’s decision.” (Appeals Council’s 11/20/2002 Decision, Admin. Record at 5-7.)
B. The District Court Proceedings and the Reconstruction of the Administrative Record
Hollon commenced this action in the U.S. District Court for the Eastern District of Kentucky on January 29, 2003, challenging the decision of the Commissioner of Social Security to terminate her son’s SSI benefits. Shortly thereafter, and before any answer was filed, the Commissioner moved for a so-called “sentence six” remand under
Over the next several months, Hollon and her present counsel3 evidently sent two sets of records to the Appeals Council as part of the effort to reconstruct the administrative record. Initially, in March of 2003, Hollon and her counsel forwarded 350 pages of materials obtained from the attorney who had assisted Hollon in her administrative appeal. Then, on September 2, 2003, Hollon and her counsel submitted an additional 612 pages of documents to the Appeals Council, purportedly evidencing “eighty-eight (88) Emergency Room treatments or Hospitalizations” Joseph underwent at the Kentucky River Medical Center “during the relevant time period.” (Plaintiff/Appellant’s Br. at 7.)4
In light of these perceived deficiencies, Hollon requested that the district court again remand the case to the Commissioner, so that the balance of her 350-page submission and the entirety of her 612-page submission could be incorporated into the administrative record. The district court denied this motion, finding that Hollon had failed to demonstrate the good cause and materiality that are the prerequisites to such a remand. The district court then proceeded to the merits of the case, determining in a June 14, 2004 order that the Commissioner’s decision to terminate Joseph’s SSI benefits was supported by substantial evidence in the administrative record. Hollon now appeals, advancing both procedural and substantive challenges to the district court’s rulings.
II. ANALYSIS
A. The District Court Did Not Err in Declining to Order a Remand for Consideration of Additional Evidence of Joseph’s Medical Condition.
As is clear from the foregoing, the parties devoted a significant portion of their efforts in the court below to the threshold matter of ascertaining the proper content of the administrative record, as opposed to the substantive inquiry whether this record provided substantial support for the Commissioner’s decision to terminate Joseph’s SSI benefits. Likewise, Hollon’s arguments on appeal rest principally upon the premise that the administrative record is incomplete, defeating any possibility of meaningful judicial review and fatally undermining the administrative decision that rests upon this record. In light of this purported defect, Hollon contends that the district court erred in declining to remand this case with instructions that the Commissioner incorporate into the record all of the materials that Hollon submitted to the Appeals Council during the process of reconstructing the lost record. We find, however, that the district court properly applied the correct standards in ruling that Hollon was not entitled to a remand for further development of the administrative record.
A district court’s authority to remand a case for further administrative proceedings is found in
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action . . . . The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing . . . . The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner’s answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it 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; and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner’s findings of fact or the Commissioner’s decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which the Commissioner’s action in modifying or affirming was based.
As we have elsewhere observed, two separate sentences within this provision authorize remands to the Commissioner. See Faucher v. Secretary of HHS, 17 F.3d 171, 174 (6th Cir. 1994). First, a district court may order a “sentence four” remand after reviewing the Commissioner’s decision and entering a judgment, if it determines that a rehearing before the Commissioner is warranted in light of the court’s ruling. See id. Alternatively, the district court may order a prejudgment “sentence six” remand, which provides a potential avenue for the relief sought by Hollon in this case: namely, the reopening of the administrative record so that the Commissioner may consider “new and material evidence that for good cause was not previously presented to” the Commissioner. Id.7
Yet, the statute is quite explicit as to the standards that must be met before a district court may order a sentence six remand for the taking of additional evidence. In particular, it must be shown (i) that the evidence at issue is both “new” and “material,” and (ii) that there is “good cause for the failure to incorporate such evidence into the record in a prior proceeding.”
In this case, Hollon has not established — and, indeed, has scarcely even addressed — these two prerequisites to a sentence six remand for the consideration of new evidence. First, she has not shown that her proposed additions to the record are either “new” or “material.” As to the former, we have explained that “evidence is new only if it was not in existence or available to the claimant at the time of the administrative proceeding.” Id. (internal quotation marks and citation omitted). Such evidence, in turn, is deemed “material” if “there is a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence.” Foster, 279 F.3d at 357 (internal quotation marks and citation omitted).
The other collection of documents that Hollon seeks to introduce into the administrative record is the 612 pages of medical records of Joseph’s treatments at the Kentucky River Medical Center that Hollon and her current counsel sent to the Appeals Council while this case was on remand from the district court. Once again, however, Hollon has not even attempted to show that these materials were unavailable to her or her prior counsel during the course of the administrative proceedings. Neither has she explained how these materials add anything to the existing (and considerable) record of Joseph’s visits to and treatments at this same facility over an eleven-year period. For all that can be discerned from the record before us, Hollon’s 612-page submission might be entirely cumulative of materials that already are a part of the administrative record. If this were not the case, it presumably would not be difficult for Hollon to identify some material distinction between the existing record and her voluminous submission. Tellingly, she has not done so.
Hollon’s showing is similarly deficient on the “good cause” prong of a request for a sentence six remand. “A claimant shows ‘good cause’ by demonstrating a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ.” Foster, 279 F.3d at 357. Again, there is no indication that any of the evidence cited by Hollon as grounds for a remand was unavailable to her during the course of the administrative proceedings. Nor has she identified any obstacles to her submission of this evidence during those proceedings. Even assuming that Hollon’s pro se status is relevant to the “good cause” inquiry, see, e.g., Jones v. Sullivan, 949 F.2d 57, 61 (2d Cir. 1991), she was represented by counsel by the time the matter reached the Appeals Council — and, indeed, her attorney was successful in supplementing the administrative record at that point. Accordingly, we agree with the district court’s conclusion that Hollon has not met the standards for a sentence six remand for the consideration of new evidence.
Nonetheless, Hollon argues that she should be relieved of the obligation to satisfy these statutory requirements of materiality and good cause, where the district court already had ordered a remand under sentence six of
Hollon’s argument on this point, however, is at odds with both the express language of
As the Supreme Court has made clear, we are not free to dispense with these statutory requirements. In Melkonyan v. Sullivan, 501 U.S. 89, 111 S. Ct. 2157 (1991), the Court considered a case in which the district court had ordered a remand for further administrative proceedings without specifying the basis for this remand. The parties and the Court alike agreed that this order was not predicated on sentence four of
Faced with this interpretative dilemma, the Court addressed the argument that a district court “has inherent authority to enter other types of remand orders,” beyond those permitted under sentences four and six of
. . . [I]n [a prior case] we analyzed § 405(g) sentence by sentence and identified two kinds of possible remands under the statute. While we did not state explicitly at that time that these were the only kinds of remands permitted under the statute, we do so today. Under sentence four, a district court may remand in conjunction with a judgment affirming, modifying, or reversing the Secretary’s decision. Under sentence six, the district court may remand in light of additional evidence without making any substantive ruling as to the correctness of the Secretary’s decision, but only if the claimant shows good cause for failing to present the evidence earlier. Congress’ explicit delineation in § 405(g) regarding the circumstances under which remands are authorized leads us to conclude that it intended to limit the district court’s authority to enter remand orders to these two types.
We confront no similar interpretative dilemma here. Rather, all are agreed that the district court ordered a remand under the first portion of sentence six, finding that the Commissioner had shown “good cause” for a remand through a motion brought before an answer had been filed. See
It readily follows, in our view, that the Commissioner was under no obligation to consider any additional evidence upon remand from the district court. As reflected in the Commissioner’s motion, this remand was for the limited purpose of finding or reconstructing the lost administrative record. Regardless of whether the Commissioner’s regulations might permit the taking of additional evidence in the course of this effort, see
Even if we believed ourselves free to disregard the statutory criteria for a sentence six remand under some sufficiently compelling set of circumstances, Hollon’s generalized appeal to notions of fairness would not motivate us to do so in this case. Hollon contends, in essence, that it would be inequitable to grant a remand based on the Commissioner’s negligence, yet deny an innocent claimant the opportunity to use this same remand to supplement the record. Given that the Commissioner had already embarked upon the process of rebuilding the record, Hollon maintains that nothing would be lost, and perhaps something would be gained, if she were permitted to provide additional materials that would shed further light on her son Joseph’s medical condition and treatments over the years.
We cannot agree with Hollon’s premise that her proposed supplementation of the record would be entirely cost-free. It does no good, after all, to merely add more materials to the
Consequently, there is no reason for a court to permit a Social Security claimant to supplement the administrative record on remand unless the court also is prepared to order the Commissioner to act upon this new evidence. Yet, a court cannot issue such an order — and, moreover, it would serve no useful purpose — unless there is some basis for believing that the Commissioner might reach a different decision in light of this new evidence. This is precisely the function of the “materiality” prong of the statutory standard for a sentence six remand — as explained, it directs the court to inquire whether “there is a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence.” Foster, 279 F.3d at 357 (internal quotation marks and citation omitted). Where, as here, a claimant’s proffered evidence does not meet this standard, nothing would be gained by adding it to the administrative record, whether through a sentence six remand or some other procedural device.
We readily acknowledge Hollon’s concern that the Commissioner’s loss of the administrative record injects a troublesome element of uncertainty into the proceedings, and unduly shifts the focus from ordinary “substantial evidence” review to litigation over the proper content of the reconstructed record. Indeed, at oral argument, we expressed our dismay, frustration and concern that administrative records are lost in far too many cases, reflecting the Social Security Administration’s apparent inattention to its important recordkeeping responsibilities. In addition, we sought assurances that the Commissioner is working actively and aggressively to prevent such mishaps in the future, and to ensure that claim files are maintained in accordance with the agency’s statutory obligations. If the Commissioner is unable to improve the agency’s performance in this regard, Congress perhaps might wish to mitigate the potential prejudice to claimants by relaxing the statutory standards for remands in some cases,11 or by adopting other remedial measures. In the present case, however, we are unwilling to order as a remedy that the administrative record be reopened to any and all submissions, absent any ground for believing that this additional evidence would result in a materially different record. Because no such showing has been made in this case, we affirm the district court’s denial of Hollon’s request for a sentence six remand for consideration of new evidence.
B. The District Court Did Not Err in Holding that Hollon Validly Waived Her Right to Appear at a Hearing Before the ALJ.
As her next issue on appeal, Hollon argues that the district court erred in determining that she validly waived her right to appear at a hearing before the ALJ. We find, however, that Hollon’s waiver of this right comported with the pertinent standards promulgated by the Commissioner and reflected in our precedents.
As we have explained, both the
Beyond these general provisions, the Commissioner has issued a ruling that sets standards for testing the validity of a waiver:
In order to insure that any waiver is made voluntarily and knowingly, the [Commissioner] has promulgated Social Security Ruling (SSR) 79-19 to “establish requirements necessary for a valid waiver of an individual’s right to appear, in person or through a representative, and present evidence or information at a hearing before the Office of Hearings and Appeals.” Prior to the publication of SSR 79-19, the only requirement for a valid waiver was that it be in writing. For administrative convenience, SSA Form HA 501, “Request for Hearing,” included a check-box where the claimant could indicate his decision. Although the form still is in use, in order to waive the right to appear, SSR 79-19 suggests that the claimant “sign a statement to that effect in accordance with the evidence requirements described below.” In the statement, a claimant acknowledges that he has been informed of the nature of the proceedings and of his right to counsel, to appear and testify at the hearing, to present evidence, to waive the right to appear, and to have the waiver withdrawn prior to the mailing of the decision.
In this case, Hollon initially submitted a “Request for Hearing” Form HA-501 in May of 2000, and she checked the box on this form indicating that she did not wish to appear at a hearing. (Request for Hearing Form HA-501, Admin. Record at 52.) Immediately adjacent to this check-box, however, Hollon was advised to “[c]omplete Waiver Form HA-4608,” (id.), and it is undisputed that Hollon did not execute this additional waiver form at the time. Without more, Hollon’s “mere marking of the check-box on the request for hearing form” might have been ambiguous, and might not have qualified as a valid waiver of her right to appear before the ALJ. See Stoner, 837 F.2d at 761.
But this was not the end of the matter. Rather, as recounted above, the ALJ wrote to Hollon on March 6, 2001, noting her apparent waiver of her right to appear at a hearing, and cautioning that “[a]fter reviewing the evidence in your case, I feel that it may be to your benefit to appear and testify at a hearing.” (ALJ’s 3/6/2001 Letter, Admin. Record at 277.) Accordingly, the ALJ requested that Hollon again indicate whether she wished to appear at a hearing. (See id.) In response, Hollon signed and returned this letter to the ALJ a few days later, after first placing a check mark next to the line stating, “I do not wish to appear and testify at a hearing and request that a decision be made based on the evidence of record.” (Id.)
Just as importantly, Hollon also signed and returned a separate waiver on Form HA-4608. (See Form HA-4608, Admin. Record at 278.) Through this form, signed the same day as her response to the ALJ, Hollon acknowledged: (i) that she had been advised of her right to appear before the ALJ; (ii) that, although this right had been explained to her, she did not wish to appear; (iii) that she was free to change her mind and request an appearance before the ALJ at any time before the ALJ mailed his decision; and (iv) that she had a right to be represented in the
Under these circumstances, we find no basis for questioning the validity of Hollon’s waiver. The Form HA-4608 that she signed in March of 2001 precisely tracks each of the requirements for a valid waiver as established in Social Security Ruling 79-19. See Stoner, 837 F.2d at 761. Although Hollon did not execute this form in May of 2000 when she first expressed her desire not to appear at a hearing, the form was timely completed and returned well before the ALJ proceeded on April 13, 2001 to decide Joseph’s claim without a hearing. Indeed, the ALJ seemingly went beyond the requirements of SSR 79-19 by writing directly to Hollon and expressly advising her that “it may be to your benefit to appear and testify at a hearing.” (ALJ’s 3/6/2001 Letter, Admin. Record at 277.) Despite this urging, Hollon confirmed her election not to appear, signing two additional statements to this effect. Under this record, we are at a loss to discern any additional measures that the ALJ might have employed to confirm Hollon’s knowing waiver of her right to appear at a hearing.
Nor can we accept Hollon’s suggestion that her failure to appear at a hearing should somehow have precluded the ALJ from discounting the “credibility” of her unsworn statements in the administrative record. Whether characterized in terms of credibility, weight, or persuasiveness, each item of evidence in the record must be evaluated by the ALJ in his fact-finding role to determine its bearing upon a claimant’s entitlement to benefits. In finding that certain of Hollon’s statements were “not fully credible,” (ALJ’s 4/13/2001 Decision at 7, Admin. Record at 19), the ALJ was engaged in nothing more than the usual fact-finder’s function of determining the extent to which a claimant’s own reports of his or her symptoms and limitations are consistent with or contradicted by the remainder of the record.
When she signed Form HA-4608 confirming her waiver of the right to appear before the ALJ, Hollon expressly acknowledged that her “personal appearance before an Administrative Law Judge would provide [her] with the opportunity to present . . . [her] testimony,” and that “this opportunity to be seen and heard could be helpful to the Administrative Law Judge in making a decision.” (Form HA-4608, Admin. Record at 278.) Similarly, the ALJ specifically advised Hollon in his March 6, 2001 letter that her appearance at a hearing “may be to your benefit.” (ALJ’s 3/6/2001 Letter, Admin. Record at 277.) Having nonetheless decided to waive her right to appear, Hollon cannot now complain that a foreseeable consequence of this election came to pass — namely, that the ALJ might give less than full weight to her statements regarding her son’s symptoms and limitations. Accordingly, we affirm the ruling in the court below that Hollon validly waived her right to appear before the ALJ.
C. The District Court Properly Found that the Commissioner’s Decision Is Supported by Substantial Evidence in the Record.
Hollon’s final contention on appeal is that the Commissioner’s decision to discontinue Joseph’s benefits is not supported by substantial evidence in the administrative record. This challenge warrants little discussion, as Hollon has made little effort to develop this argument in her brief on appeal, or to identify any specific aspects of the Commissioner’s determination that lack support in the record. Under these circumstances, we decline to formulate arguments on Hollon’s behalf, or to undertake an open-ended review of the entirety of the administrative record to determine (i) whether it might contain evidence that arguably is inconsistent with the Commissioner’s decision, and (ii) if so, whether the Commissioner sufficiently accounted for this evidence. Rather, we limit our consideration to the particular points that Hollon appears to raise in her brief on appeal.
Next, Hollon suggests that the ALJ failed to give proper deference to the opinions of Joseph’s treating physicians. As the Commissioner points out in response, however, Hollon has failed to cite any specific opinion that the ALJ purportedly disregarded or discounted, much less suggest how such an opinion might be impermissibly inconsistent with the ALJ’s findings.12 In the absence of any such focused challenge, we decline to broadly scrutinize any and all treating physician opinions in the record to ensure that they are properly accounted for in the ALJ’s decision.
More generally, to the extent that the records of Joseph’s treating physicians confirm that he continues to suffer from asthma, the ALJ recognized the existence of this severe impairment, (see ALJ’s 4/13/2001 Decision at 6, 7, Admin. Record at 18, 19), but found that this condition was no longer disabling within the meaning of the
III. CONCLUSION
For the reasons set forth above, we AFFIRM the challenged district court rulings in all respects.
GERALD E. ROSEN
UNITED STATES DISTRICT JUDGE
Notes
If Hollon had established otherwise, and had persuaded the district court (or this court) that specific, identifiable original evidence was indeed omitted from the reconstructed record, we are confident that a statutory remedy would have been available to rectify this omission. Section