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Case 1:12-cv-00273-GJQ-HWB Doc #21 Filed 09/19/13 Page 1 of 4 Page ID#922











Case No. 1:12-CV-00273



Plaintiff has filed Objections to Magistrate Judge Hugh W. Brenneman’s Report and

Recommendation (R&R), issued on June 3, 2013, which recommends that the Court deny Plaintiff’s

request for a remand under sentence six of 42 U.S.C. § 405(g) and affirm the Commissioner’s

decision denying Plaintiff disability insurance benefits. Pursuant to 28 U.S.C. § 636(b)(1), this

Court is required to review de novo those portions of the R&R to which specific objections have

been made. The Court may accept, reject, or modify any or all of the magistrate judge’s findings

or recommendations. Id. After reviewing the R&R, Plaintiff’s Objections, and the pertinent

portions of the administrative record, the Court will overrule Plaintiff’s Objections and adopt the

R&R as the opinion of the Court.

In his R&R, the magistrate judge concluded that a sentence-six remand was unwarranted

because Plaintiff failed to show “good cause” for failing to present the new evidence to the

administrative law judge (ALJ). (R&R at 11.) The magistrate judge also recommended that the

Court reject Plaintiff’s substantive argument that there was not substantial evidence to deny

Case 1:12-cv-00273-GJQ-HWB Doc #21 Filed 09/19/13 Page 2 of 4 Page ID#923

disability benefits. Plaintiff objects only to the magistrate judge’s conclusion regarding the

sentence-six remand, arguing that he has shown good cause for his failure to present the new

evidence to the ALJ and that the new evidence is material.

The evidence at issue is a letter from Plaintiff’s family physician, Dr. David J. Smith, dated

May 24, 2010, nearly two months after the ALJ’s decision denying benefits. (AR 729.) The letter

states Dr. Smith’s belief that Plaintiff was unable to “manage his building operation and to perform

the heavy work that his occupation demanded,” or “to perform at a level that would maintain his

business on a successful footing.” (Id.) Dr. Smith states that he believed Plaintiff’s “business was

finished” after he suffered a stroke, and that he recommended that Plaintiff seek disability benefits

at that point. (Id.) Dr. Smith does not cite any medical records in support of his opinion.

A sentence-six remand is warranted only upon a showing that new evidence 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). The magistrate found that Plaintiff had not shown good cause

because he provided no evidence to support his assertion that Dr. Smith was unavailable to provide

an opinion before the administrative hearing. In response, Plaintiff’s Objection states that he

attempted to contact Dr. Smith numerous times, but that these efforts were unsuccessful because Dr.

Smith was no longer practicing and was unwilling to help. (Dkt. no. 18.) In support, Plaintiff has

attached a letter his attorney wrote to Dr. Eric Smith, Dr. David Smith’s son, requesting assistance.


Plaintiff’s argument is unavailing. Plaintiff claims that he was unable to get a letter from Dr.

Smith because he was no longer practicing; however, the letter that Dr. Smith eventually provided

is written on letterhead that lists him as President of a medical practice. (AR 729.) Moreover, the

only evidence that Plaintiff has provided regarding his efforts to contact Dr. Smith is a letter that his


Case 1:12-cv-00273-GJQ-HWB Doc #21 Filed 09/19/13 Page 3 of 4 Page ID#924

attorney wrote to Dr. Smith’s son, Dr. Eric Smith, who is a member of the same medical practice.

(Dkt. no. 19, attachment 1.) In that letter, Plaintiff asks for assistance from Dr. Eric Smith. (Id.)

The letter does not mention Dr. David Smith, or Plaintiff’s inability to contact him. (Id.) Because

Plaintiff has failed to provide evidence to support his assertion that he was unable to get the letter

from Dr. Smith before Plaintiff’s hearing, the Court concurs with the magistrate’s conclusion that

Plaintiff has not shown good cause.

Even if Plaintiff could demonstrate good cause, he cannot show that the evidence is material.

Dr. Smith’s letter expressed his opinion that Plaintiff could no longer manage his business or

perform the heavy work that it entailed. (AR 729.) Because he did not provide any support for his

opinion through medical records, however, it would not be entitled to deference. Sizemore v. Sec’y

of Health & Human Servs., 865 F.2d 709, 711-12 (6th Cir. 1988) (finding that a doctor’s opinion

was not entitled to deference because it was not supported by any laboratory test or diagnostic

procedure). Moreover, the statements in the letter are consistent with evidence presented by a

vocational expert, who testified that Plaintiff could not perform the same work that he had in the

past. (AR 32.) Because the letter would simply confirm evidence that was before the ALJ, it is not

material. See Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 726 (6th Cir. 2012) (finding that

new evidence was not “material” because it was consistent with previously presented evidence). The

fact that Dr. Smith believed Plaintiff should seek disability coverage does not change this analysis.

See Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004) (“Conclusory statements

from a physician that the claimant is disabled are not entitled to deference.”)



Case 1:12-cv-00273-GJQ-HWB Doc #21 Filed 09/19/13 Page 4 of 4 Page ID#925

IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation

issued June 3, 2013 (docket no. 18), is ADOPTED as the Opinion of the Court, and the decision of

the Commissioner denying benefits to Plaintiff is AFFIRMED.

/s/ Gordon J. Quist



A separate judgment will issue.

This case is concluded.

Dated: September 19, 2013