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McGann v. Colvin

United States District Court, W.D. Virginia, Lynchburg Division

February 11, 2015

SHANNON P. McGANN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT S. BALLOU, Magistrate Judge.

Plaintiff Shannon P. McGann ("McGann") filed this action challenging the final decision of the Commissioner of Social Security ("Commissioner") finding her not disabled and therefore ineligible for disability insurance benefits ("DIB") under the Social Security Act ("Act"). 42 U.S.C. §§ 401-433. Specifically, McGann alleges that the Administrative Law Judge ("ALJ") erred by not giving greater weight to her treating physician's opinion, finding major depressive disorder as her only severe impairment, and lacking substantial evidence to support her credibility determination. McGann also contends that she has presented new and material evidence that warrants remand. I conclude McGann's subsequent favorable decision revealed additional evidence that merits further review. As such, I RECOMMEND GRANTING IN PART McGann's Motion for Summary Judgment (Dkt. No. 13), and DENYING the Commissioner's Motion for Summary Judgment. Dkt. No. 22.


This Court limits its review to a determination of whether substantial evidence exists to support the Commissioner's conclusion that McGann failed to demonstrate that she was disabled under the Act.[1] Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (internal citations omitted). The final decision of the Commissioner will be affirmed where substantial evidence supports the decision. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).


McGann protectively filed for DIB on July 21, 2010, claiming that her disability began on April 16, 2010. R. 185. The Commissioner denied her application at the initial and reconsideration levels of administrative review. R. 81-86, 88-91. On April 12, 2012, ALJ R. Neely Owen held a hearing to consider McGann's disability claim. R. 30-52. McGann was represented by a non-attorney representative at the hearing, which included testimony from McGann and vocational expert Dr. Gerald Wells. R. 30-52.

On April 26, 2012, the ALJ entered her decision analyzing McGann's claim under the familiar five-step process[2] and denying McGann's claim for benefits. R. 8-28. The ALJ found that McGann suffered from the severe impairment of major depressive disorder. R. 13-14. The ALJ found that this impairment did not meet or medically equal a listed impairment. R. 14-16. The ALJ concluded that McGann retained the RFC to perform a full range of work at all exertional levels, [3] except that she has

moderate limitations in the areas of understanding/remembering/carrying out detailed instructions, maintaining attention/concentration for extended periods, performing activities within a schedule, sustaining an ordinary routine without special supervision, completing a normal workday/workweek without interruptions from psychologically-based symptoms, interacting appropriately with the general public, and maintaining socially appropriate behavior/adhering to basic standards of neatness and cleanliness. The claimant is able to engage in repetitive, competitive, unskilled, and nonstressful tasks that do not necessitate direct contact with the public or excessive contacts with coworkers.

R. 16. The ALJ determined that McGann could not return to her past relevant work, but that McGann could work at jobs that exist in significant numbers in the national economy, such as office helper, mailroom clerk, and telephone information clerk. R. 21-22. Thus, the ALJ held that McGann was not disabled. R. 22.

McGann appealed the ALJ's decision, and submitted additional records and a legal brief to the Appeals Council. R. 5-6, 1001-57. On July 3, 2013, the Appeals Council denied McGann's request for review (R. 1-7), and this appeal followed. Dkt. No. 3. On October 10, 2013, the Commissioner subsequently awarded benefits to McGann that backdated to April 27, 2012, the day after the ALJ's decision. Dkt. No. 25-1.


McGann raises for the first time in this court that she received a favorable decision awarding her disability benefits. McGann argues that this decision and its underlying evidence warrant remand of this case for reconsideration by the ALJ under sentence four or six of 42 U.S.C. § 405(g). As an exhibit attached to her Motion for Summary Judgment, McGann submitted the Social Security Administration's ("SSA") subsequent approval of her application. Dkt. No. 14-3. Two days prior to the hearing before this court, McGann moved to include the SSA's Disability Determination Explanation dated October 10, 2013, which sets forth the basis for the subsequent favorable decision. Dkt. No. 25. The court granted the motion and accepted the Disability Determination Explanation as part of the record. Dkt. No. 26.

"A claimant seeking a remand on the basis of new evidence... must show that the evidence is new and material and must establish good cause for failing to present the evidence earlier." Wilkins v. Sec'y, Dep't of Health and Human Servs., 953 F.2d 93, 96 n.3 (4th Cir. 1991). Evidence is new if it is not duplicative or cumulative; it is material if there is a reasonable possibility it would have changed the outcome of the Commissioner's decision. Id. at 96. Additional evidence will be considered "only where it relates to the period on or before the date of the [ALJ's] hearing decision." Id . (citing 20 C.F.R. § 416.1470(b)). McGann has the burden of demonstrating that a remand is appropriate given any new and material evidence. Meadows v. Astrue, CIVA 5:08-CV-01129, 2010 WL 1380117, at *3 (S.D. W.Va. Mar. 31, 2010).

Courts in this district have on several occasions addressed whether a subsequent favorable disability decision constitutes sufficient grounds for a remand. Compare Phillips v. Astrue, Case. No. 7:12cv194, 2013 WL 485949, at *3-4 (W.D. Va. Feb. 5, 2013) (finding remand based simply upon a subsequent finding of disabled to be an incorrect application of the law); with Hayes v. Astrue, 488 F.Supp.2d 560, 565 (W.D. Va. 2007) (holding that a subsequent favorable finding of disability may itself constitute new and material evidence warranting remand where the record does not reflect whether the new favorable decision relied upon additional evidence). The Fourth Circuit has stated in an unpublished opinion that "a subsequent favorable decision itself, as opposed to the evidence supporting the subsequent decision, does not ...

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