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Montelebre v. Colvin

United States District Court, N.D. Illinois, Western Division

February 27, 2015

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


IAIN D. JOHNSTON, Magistrate Judge.

Plaintiff Daniel Montelebre brings this action under 42 U.S.C. § 405(g), seeking remand of the decision denying him disability insurance benefits. His main argument is that due to apparent administrative oversight the administrative law judge ("ALJ") never reviewed almost a year's worth of medical records relating to plaintiff's ongoing arm pain. Based on this argument, the case is remanded.


Plaintiff's claim for being disabled rests primarily on his arm problems, particularly his right elbow. He has been diagnosed with bilateral epicondylitis, sometimes referred to as tennis elbow. In 2003, plaintiff injured his elbows in a work-related incident and has suffered pain ever since. In 2004, Dr. Hall performed two surgeries on the right elbow, but they did not stop the pain, which includes radiating pain, tenderness, weakness, numbness, and tingling. Dkt. #8 at 1, 34. Plaintiff claims that the pain has gotten worse over time. At the time of the ALJ hearing, plaintiff was taking various drugs including morphine to address this pain.

This case arises out of plaintiff's second attempt to get disability insurance benefits. He previously filed a claim that was denied by a different ALJ on April 29, 2011. R. 13. Plaintiff appealed that decision to the Appeals Council, which denied his request. However, plaintiff never appealed the decision to the district court. The parties provide little information about this first attempt to obtain benefits. It is not known whether plaintiff was represented by counsel, and the parties have not supplied the Court with a copy of the earlier ALJ's opinion. The specific reasons for the earlier ruling are thus not known.

Plaintiff filed his second application on May 11, 2011. R. 13. A hearing was held before a new ALJ on January 11, 2013. R. 59. On January 25, 2013, this ALJ found plaintiff was not disabled. The ALJ first noted that plaintiff was barred by the doctrine of res judicata from asserting an onset date before April 30, 2011, the day after the first ALJ's decision. R. 13. As a result, the ALJ's opinion assessed whether plaintiff was disabled during an 11-month window, from April 30, 2011 until March, 31, 2012, plaintiff's last date insured.

The ALJ found that plaintiff had severe impairments of bilateral epicondylitis, chronic pain syndrome, depression, anxiety, and a history of substance. R. 15. The ALJ found that these impairments did not meet a listings requirement.[1] The ALJ next analyzed plaintiff's residual functional capacity and found that he had the capacity to perform light work with the exception that he can only lift ten pounds occasionally and five pounds frequently with his right dominant arm, that he is limited to no more than frequent handling and fingering with his right hand, and that he has the capacity to perform simple instructions. R. 17-18.

The central part of the opinion is the evaluation of plaintiff's pain symptoms in accordance with the factors in SSR 96-7p. The ALJ found that plaintiff's testimony about his pain was less than credible based on several reasons: (1) plaintiff was able to work for a time after his two surgeries and only stopped after being laid off due to lack of work; (2) although plaintiff was taking stronger pain medication more recently, there was no evidence that it was prescribed with "any change or objective worsening" of plaintiff's condition; (3) plaintiff made inconsistent statement regarding alcohol and marijuana use; (4) there was no medical evidence to corroborate plaintiff's claim that his pain had worsened over the last few years; and (5) various medical examinations in early 2010 and into the middle of 2011 suggested that plaintiff's arm limitations were only mild. R. 19-21.

The ALJ gave "great weight" to the opinion of Dr. Ashok Jilhewar, the independent medical expert. R. 22. Dr. Jilhewar testified, among other things, that "there was not sufficient medical evidence to support the claimant's allegations of pain and other symptoms." Id. The ALJ gave "little weight" to the opinion of Dr. Hall, plaintiff's treating physician, who opined in 2010 that plaintiff was permanently disabled for both upper extremities. Id. In discounting Dr. Hall's opinion, the ALJ first pointed out that his opinion was "encompassed in the claimant's previous unfavorable determination, " presumably referring to the doctrine of res judicata mentioned earlier in the opinion. However, the ALJ went on to evaluate Dr. Hall's opinion, finding that Dr. Hall's examination findings, such as a negative Tinel sign, did not support the plaintiff's "subjective reports of pain." Id.


Plaintiff asserts two grounds for a remand. First, he argues that a remand is warranted under Sentence Six of § 405(g) because there is supposedly new and material evidence. This evidence consists of 28 pages of medical records from the Crusader Community Health Clinic that plaintiff visited on seven occasions from November 2011 to December 2012. During these visits, he was seen by Dr. Michael Vaewhongs. These records, which are not included in the administrative record, have been attached by plaintiff as an exhibit to his opening brief. See Dkt. # 8 at 14-42. Second, plaintiff argues that a remand is justified separately under Sentence Four because the ALJ failed to give controlling weight to plaintiff's treating physician and did not account for plaintiff's narcissistic personality disorder.

Plaintiff's first argument rests on a simple and undisputed set of facts. On November 20, 2012, plaintiff electronically submitted to the SSA his healthcare records from the Crusader Clinic.[2] This submission was made more than a month before the hearing. For some unknown reason, these records do not appear to have ever made it to the ALJ. Neither the ALJ nor the testifying medical expert mentioned these records at the hearing. The ALJ in his opinion likewise never referred to them. They were not on the exhibit list, and are not in the certified administrative record submitted to this Court. The government does not dispute these facts.

Although the parties disagree on whether the missing records justify a remand, they both proceed on the assumption that this question can be properly analyzed under the criteria for a Sentence Six remand for new evidence. Sentence Six allows the district court to remand without ruling on the merits, and such remands are interlocutory and cannot be appealed. DeGrazio v. Colvin, 558 Fed.Appx. 649, 651-52 (7th Cir. 2014). A Sentence Six remand is allowed in two circumstances: "when (1) the Commissioner requests a remand before filing her answer and demonstrates good cause, or (2) there is evidence that is new and material, plus a showing of good cause' for the failure to incorporate such evidence into the record in a prior proceeding." Id. at 652 (quoting 42 U.S.C. § 405(g)); Jens v. Barnhart, 347 F.3d 209, 214 (7th Cir. 2003).

This Court finds that neither circumstance fits here. The first one does not apply for the simple reason that the Commissioner is not requesting a remand. Plaintiff is the party who first raised the argument under Sentence Six, and the government in its response brief has opposed the request. See Acevedo v. Barnhart, 474 F.Supp.2d 1001, 1004 (E.D. Wisc. 2007) ("I have found no case where a sentence six remand due to an incomplete record was granted on the plaintiff's motion alone, and plaintiff cites none. To the contrary, the cases on this issue all appear to involve motions by the Commissioner.") (footnote omitted). As for the second circumstance, it does not apply because the evidence is not new. The Crusader records were in existence and ...

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