IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GENEVA KING,

Plaintiff,

vs. Civil Action 2:11-CV-339

Judge Graham

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

OPINION and ORDER

This action seeks review of the administrative decision denying

plaintiff’s application for supplemental security income. On August 1,

2012, the United States Magistrate Judge recommended that the matter be

remanded to the Commissioner of Social Security, pursuant to Sentence 6

of 42 U.S.C. § 405(g), for consideration of new and material evidence. 

Report and Recommendation, Doc. No. 21. This matter is now before the

Court on the Commissioner’s objection to that recommendation. Objection,

Doc. No. 22. The Court will consider the matter de novo. See 28 U.S.C.

§636(b); Fed. R. Civ. P. 72(b).

In her Report and Recommendation, the Magistrate Judge concluded

that the administrative law judge had not erred in rejecting the opinions

of two consultative examiners. The Magistrate Judge also concluded,

however, that evidence not available to plaintiff at the time the

administrative law judge issued his decision was new and that plaintiff

had good cause for not incorporating the evidence into proceedings before

the administrative law judge. The Magistrate Judge also found the new

evidence to be material to plaintiff’s application for benefits:

. . . [M]any of the records relate to plaintiff’s

affective disorder and anxiety disorder which the

administrative law judge included among plaintiff’s

severe impairments. Furthermore, the February 2010

MRI of plaintiff’s right shoulder, A.R. 148-57, may

provide some documentation of plaintiff’s

complaints of right shoulder pain, which the

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administrative law judge acknowledged but did not

include among plaintiff’s severe impairments. See

A.R. 16. Thus, the new evidence is material

because there is a reasonable probability that the

Commissioner would have reached a different result

had the records been before the administrative law

judge.

Report and Recommendation, pp. 13-14. The Commissioner objects to the

recommendation that the case be remanded pursuant to Sentence 6, taking

the position that none of the new evidence submitted by plaintiff is

material to the resolution of plaintiff’s claimed disability.

The Social Security Act permits a court to 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), Sentence 6. Evidence is “material” only if there is

“a reasonable probability that the [Commissioner] would have reached a

different disposition of the disability claim if presented with the new

evidence.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir.

2010), quoting Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). In

arguing that the new evidence presented by plaintiff is not material, the

Commissioner first contends that none of the new evidence relates to the

period addressed by the administrative law judge, i.e., prior to

September 15, 2009. To the contrary, the February 2010 MRI of

plaintiff’s right shoulder, A.R. 342-45, at least, would appear to relate

to the finding by the consultative examiner, Robert M. Hess, M.D., that

plaintiff’s range of motion of the right shoulder was slightly reduced,

A.R. 210, and who opined that plaintiff could never reach with her right

hand. A.R. 218. Because the administrative law judge did not include

a right shoulder impairment among plaintiff’s severe impairments, this

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new evidence raises a reasonable probability that the Commissioner would

have reached a different disposition of plaintiff’s disability claim if

presented with this new evidence. 

In addressing much of the other new evidence, the Commissioner

engages in a substantive evaluation of that evidence and concludes that

the new evidence would not militate in favor of a finding of disability. 

However, in the view of this Court, the sort of evaluation undertaken by

the Commissioner in his Objection is better left for the Commissioner

during the course of administrative proceedings and not in proceedings

before this Court. It is, after all, the Commissioner who is charged

with determining in the first instance whether a claimant is in fact

disabled. For purposes of a Sentence 6 remand, a plaintiff need only

establish a reasonable probability that the Commissioner would have

reached a different result, not the certainty of a grant of benefits. 

Plaintiff has made such a showing in this case.

In short, the Court concludes that the Commissioner’s Objection,

Doc. No. 22, is DENIED. The Report and Recommendation, Doc. No. 21, is

ADOPTED AND AFFIRMED. The action is REMANDED to the Commissioner of

Social Security, pursuant to Sentence 6 of 42 U.S.C. § 405(g), for

consideration of new evidence.

Date: September 7, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

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