United States District Court, N.D. Illinois, Eastern Division
KATHLEEN M. HORSKY Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Defendant.
MEMORANDUM ORDER AND OPINION
B. ZAGEL UNITED STATES DISTRICT JUDGE
Kathleen M. Horsky asks this Court to remand her case to the
Social Security Administration based on new evidence about
one of her treating doctors, Dr. Bina Oommen. For the reasons
discussed below, the Court grants this remand pursuant to
sentence six of 42 U.S.C. § 405(g).
OF THE CASE
seeks judicial review of a final decision of the Commissioner
of Social Security which found that she was not entitled to a
period of disability or disability insurance benefits under
Title II of the Social Security Act. See 42 U.S.C.
§§ 416(i), 423.
filed an application for a period of disability and
disability insurance benefits on April 25, 2011. In her
application, she alleged that she became disabled on June 23,
2006. Her application was denied and she sought a hearing
before an Administrative Law Judge (ALJ). A hearing was held
on July 19, 2012 where Horksy, a medical expert, and a
vocational expert testified.
November 19, 2012, an ALJ found that Horsky was not disabled
and could perform a significant number of jobs in the
national economy. In making this determination the ALJ relied
in part on the opinion and observations of Dr. Bina Oommen.
Plaintiff requested review of the ALJ's decision, but the
Appeals Council denied review, making the ALJ decision the
final decision of the Commissioner.
filed a Motion for Summary Judgment on August 20, 2014,
seeking a remand to a new ALJ, alleging various errors made
by the ALJ. After the Commissioner responded to that motion,
Horsky cited a new reason for remand in her reply brief - the
existence of new evidence. In open court on September 15,
2016, Horksy's attorney requested that the Court remand
the case in light of new evidence, and the attorney for the
Commissioner agreed that such a remand was appropriate. I now
grant Horsky's oral motion for remand and stay the motion
for summary judgment pending a reconsideration of
Horsky's case by the ALJ in light of this new evidence.
light of the existence of new evidence brought forward after
Horsky's initial filing for summary judgment, I review
Horsky's motion for remand sought pursuant to the sixth
sentence of 42 U.S.C. § 405(g), which provides:
[The Court] 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 42 U.S.C.
is material “if there is a reasonable possibility that
it would have changed the outcome of the Secretary's
determination.” Sears v. Bowen, 840 F.2d 394,
400 (7th Cir. 1988). Evidence is new if it was “not in
existence or available to the claimant at the time of the
administrative proceeding.” Sullivan v.
Finkelstein, 496 U.S. 617, 626 (1990).
argues that a remand should be ordered in light of new
evidence about Dr. Oommen. After Horsky's case arrived in
this Court, the State of Illinois, Department of Financial
and Professional Regulation filed a Complaint against Dr.
Oommen. In that Complaint, the Department of Financial and
Professional Regulation has asked that Dr. Oommen's
physician's license be revoked, suspended, placed on
probation, or otherwise disciplined. I agree that a remand is
appropriate in light of this Complaint.
Department's Complaint is material because the ALJ
considered Dr. Oommen's observations when evaluating
Horsky's case. Dr. Oommen reported that Horksy appeared
to be over-exaggerating her symptoms. He said he had a
concern that Horsky's symptoms were for secondary gain or
to acquire social security benefits. He accused Horsky of
trying to “buddy up” with him. He concluded that
she had reversible issues and could handle a number of jobs
in the workforce. Dr. Oommen cleared Horsky to work at a
low-impact job for 35-40 hours a week. When the ALJ