United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
social security disability appeal was referred to die
Honorable Joel C. Hoppe, United States Magistrate Judge,
pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed
findings of fact and a recommended disposition. The
magistrate judge filed a report and recommendation on July
10, 2017, recommending that plaintiffs motion for summary
judgment be granted, the Commissioner's motion for
summary judgment be denied and this case be remanded to the
Commissioner for further administrative proceedings. In a.
thorough and well-reasoned report, the magistrate judge
concluded that the consultative examination arranged by
Trussell and performed after the Administrative Law
Judge (ALJ) issued his decision, which evidence was
incorporated into the record before the Appeals Council, is
new, material, and related to the period on or before the
date of the ALJ's decision. 20 C.F.R. §§
404.970(a)(5), 416.1470(a)(5). The magistrate judge held that
"neither the ALJ nor the Appeals Council made factual
findings that adequately addressed some of the functional
deficiencies identified in Dr. Hill's [consultative]
examination findings." Report & Recommendation, ECF
No. 18, at 17. Indeed, some of Dr. Hill's conclusions
conflict wim die ALJ's residual functional capacity
determination and "the task of weighing this conflicting
evidence in the first instance is beyond the scope of this
Court's review." Id. at 18. Thus, the
magistrate judge recommends this case be remanded to allow
the Commissioner to "fulfill her role as factfinder by
weighing the new evidence contained in Dr. Hill's report
so as to enable this Court to engage in meaningful judicial
review." Id. at 19.
this recommendation, Trussell has filed objections to the
magistrate judge's report. Trussell does not dispute that
remand is necessary in this case-indeed, he acknowledges it
is the remedy he asked for-but he argues that the final order
of remand should direct the Commissioner to make reasonable
efforts to locate a 2003 psychological examination that was
ordered by the Commissioner in connection with a prior
application and "produce the evidence in that file or
assure Mr. Trussell, for the record, that there are good
reasons why the evidence cannot be obtained." PL's
Obj., ECF No. 19, at 3. As Trussell recounts in his summary
judgment brief, he made numerous requests of the Social
Security Administration to obtain this 2003 consultative
examination by Meredith Greene, Ph.D. PL's Br., ECF No.
14, at 5-8. Trussell goes on to state: "After trying
unsuccessfully for more than a year to get the Commissioner
to secure-through prior records held by the Commissioner or a
consultative examination-detailed information about the
nature, etiology, longevity and severity of Mr.
Trussell's medical conditions, Mr. Trussell then borrowed
the money necessary to obtain that evaluation, himself."
Id. at 8.
problem, according to Trussell, is if the Commissioner
concludes on remand that Dr. Hill's recent consultative
examination justifies a finding of disability, "there
would then remain the question of when Mr. Trussell's
disability may have commenced. The 2003 Consultative
Examination may provide key evidence as to the nature and
severity of Mr. Trussell's disability which would
pre-date Dr. Hill's findings and provide a link to Mr.
Trussell's alleged onset date of disability as of
October, 2012." PL's Obj., ECF No. 19, at 2. In any
event, Trussell argues, the fact that the Commissioner offers
no explanation for why Trussell's request to obtain this
2003 consultative examination was not honored is "simply
not consistent with the tenets of the Social Security
Act." Id. at 3.
the ALJ's opinion nor the magistrate judge's report
references Trussell's requests to obtain this 2003
consultative examination that was allegedly conducted in
connection with a prior application for benefits. And the
court is unclear as to how this 2003 examination might be
relevant to Trussell's current DIB/SSI application.
Nevertheless, the court will order the Commissioner on remand
to evaluate Trussell's request for review of the 2003
consultative examination to the extent it is relevant to his
current application for benefits.
appropriate Order will be entered.
 The ALJ declined Trussell's
request for a consultative examination, finding the record
before him adequate to assess Trussell's claim. The
magistrate judge found no error in the ALJ's decision in
that regard. Report & Recommendation, ECF No. 18, at
16-17. Nevertheless, a consultative examination was performed
subsequent to the ALJ's decision and was made part of the
record before the Appeals Council. Thus, it is part of the
record before the court on judicial review.
 The Appeals Council considered Dr.
Hill's consultative examination report and incorporated
it into the record but found that the evidence did not
provide a basis for changing the ALJ's decision, without
further explanation. As the magistrate judge correctly
recognizes, this lack of explanation for the denial of review
is the Appeals Council's prerogative, see Meyer v.
Astrue. 662 F.3d 700, 705 (4th Cir. 2011), but it leaves
the court in the dark as to how the Appeals Council treated
the new ...