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Plourde v. Saul

United States District Court, D. New Hampshire

September 30, 2019

Scott Plourde
v.
Andrew Saul, [1] Commissioner, Social Security Administration

          Alexandra M. Jackson, Esq. Karen B. Fitzmaurice, Esq. Jessica Tucker, Esq.

          ORDER

          Paul J. Barbadoro, United States District Judge

         Scott Plourde has appealed an unfavorable decision from an Administrative Law Judge (“ALJ”) on his applications for Supplemental Security Income (“SSI”). Plourde’s appeal is still pending, but in the meantime, he has filed a motion to remand this matter to the Commissioner of the Social Security Administration (“SSA”), pursuant to sentence six of 42 U.S.C. § 405(g). The Commissioner objects. For the reasons that follow, I deny Plourde’s motion to remand.

         Plourde filed applications for SSI in 2012 and 2015, and those applications were subsequently consolidated into a single claim. In that claim, Plourde asserted that he was disabled by multiple impairments including broken vertebrae and migraine headaches. Plourde received a hearing before an ALJ on his SSI claim in July of 2016, and he received an unfavorable decision that is dated January 22, 2017. Among other things, the ALJ determined that Plourde did not have any physical impairments that met or equaled the severity of any of the impairments that the SSA regulations deem to be per se disabling. In other words, the ALJ determined that Plourde had failed to satisfy step three of the sequential evaluation process that the SSA uses to evaluate claims for benefits.[2]

         In his motion to remand, Plourde avers that he filed a new application for Social Security benefits in April of 2018 and received a hearing on that application in August of 2019. According to an affidavit from Bradford Hillman, the attorney who represented Plourde at his 2019 hearing, the SSA retained a medical expert, Dr. Joseph Gaeta, who testified that:

He [Plourde] has multiple orthopedic and spinal issues dating back to the onset date and even before then;
from November of 2016 until the end of 2017, because of the nature of the issue [Plourde] would have met a Listing at that time which would be 1.04 for his neck because of the severity, and the problems, and the surgery involved, and the recuperation needed;
1.04(a); [and]
during the same time period as the spinal issue, I think [Plourde] would have met a migraine listing also during that period of time, within that period, okay, that would be an epilepsy listing.

Cl.’s Mot. for Remand, Hillman Aff. (doc. no. 18-1) ¶ 6.[3] This is the full extent of the evidence that Plourde presents in support of his motion.

         In that motion, Plourde asks me to remand this matter to the Commissioner for a new hearing at which Dr. Gaeta could provide the testimony quoted above.

         According to sentence six of the judicial review provision of the Social Security Act,

[t]he 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. § 405(g). Where, as here, a claimant moves for a sentence-six remand, he bears the burden of establishing “that the . . . evidence [at issue] is both ‘new’ and ‘material, ’ as those terms are used in the statute [and] that there was a legally adequate reason . . . for neglecting to present” that evidence at a previous hearing. Evangelista v. Sec’y of HHS,826 F.2d 136, 139 (1st Cir. 1987). While the Commissioner concedes that the evidence at issue here is new, for the purposes of 42 U.S.C. ยง 405(g), he argues that it is not material and that Plourde has failed to show good cause for failing to ...


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