material sent to the Council, “cervical and lumbar MRI's done in July 2014 [and]
March 2015” that contained objective findings concerning his alleged limitations.
Doc. #11, PAGEID#585. He attaches, however, the findings of two new MRI's
actually taken on March 9, 2015 and December 29, 2015, along with a neurological
consult from Hugh Moncrief, M.D. dated July 21, 2015. Docs. ##11-3, 11-4, and 11-
5. This new medical information was unavailable to him at the time of the
disability hearing. These submissions by Hernandez demonstrate that he has not
waived any challenge to the July 28, 2014, decision and that he believes that the
new medical evidence should be considered.

The Commissioner next argues in his objections that Plaintiff has failed to

satisfy the elements of a sentence six remand. In order for there to be such a

remand, Hernandez must establish that the evidence is “new,” “material” and

that “good cause” exists for the failure to present the evidence to the ALJ.
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)).

For the purposes of a 42 U.S.C. 8 405(g) remand, evidence is new
only if it was ‘not in existence or available to the claimant at the
time of the administrative proceeding.’ ... Such 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.’ ... A claimant
shows ‘good cause’ by demonstrating a reasonable justification for
the failure to acquire and present the evidence for inclusion in the
hearing before the ALJ. .. [T]he burden of showing that a remand is
appropriate is on the claimant.”


Servs., 17 F.3d 171, 175 (6th Cir. 1994). “[A] remand for additional evidence may
be granted only if the failure to include the evidence in the prior administrative
record was for good cause.” /d. at 172. “[T]he burden of showing that a [sentence
six] remand is appropriate is on the claimant.” Foster v. Halter, 279 F.3d 348, 357
(6th Cir. 2001). A sentence six remand, however, “does not rule in anyway on the
correctness of the administrative decision, neither affirming, modifying, or
reversing the decision of the [Commissioner].” Faucher, 17 F.3d at 174 (citing
Melkonyan v. Sullivan, 501 U.S. 89, 98, (1991)).

The Commissioner objects to a sentence six remand in this case arguing,
initially, that because Hernandez failed to request a remand for a new hearing, he
has waived this argument. Doc. # #13, PAGEID#620. As noted by the Magistrate
Judge, however, Hernandez “proceeds without the assistance of an attorney” and
his status “dictates a liberal construction of his submissions in his favor.” Wright-
Hines v. Comm'r of Soc. Sec., 597 F.3d 392, 396 n.1 (6th Cir. 2010) (“keeping in
mind the liberal standard accorded to pro se pleadings, we will address her
contention here.”). As a pro se Plaintiff, Hernandez made no specific request for a
remand. He did, however, challenge the assertion in the July 28, 2014, decision
that he worked part-time because he wanted to apply for disability benefits. Doc.
#6, PAGEID##113-114. Hernandez not only argued that part-time was all he was
capable of doing, he also provided to the Appeals Council medical records from
his treating physician that he could not work over 20 hours per week. Doc. #6,
PAGEID#75; Doc. #11, PAGEID#590. Additionally, Plaintiff references, in the

4


The medical evidence submitted by Plaintiff to the Appeals Council, with the
exception of six pages, Doc. #6, PAGEID##508-13, satisfied the “new” requirement
in that it was “not in existence or available” to Hernandez at the time of the
hearing. Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). As to the issue of “good
cause,” the Commissioner argues that these MRI's could have been ordered and
provided in time for the disability hearing. Plaintiff, however, established “good
cause” since he testified before the ALJ that he lacked the necessary funds and
health coverage and had only recently been accepted for Medicaid through Job
and Family Services, Doc. #6, PAGEID#124. With respect to whether the medical
evidence is “material,” the Commissioner contends that the two MRI's are simply
“cumulative” of Plaintiff's overall medical condition and would not alter the
Commissioner's decision. This argument, however, ignores the relationship
between the objective findings of the MRIs and Plaintiff's testimony of his physical
findings at his disability hearing.

At the disability hearing, Plaintiff testified that he had pain and numbness
along with inability to feel temperature and weakness in his right arm. The
December 29, 2014, spinal MRI, which was performed with a contrast media
known as gadolinium, identified a “thoracic cord syrinx.” The March 2015, lumbar
MRI stated that Hernandez had “syringiohydromyelia cervical thoracic” which is a
disorder which includes a syrinx that forms within the spinal cord. Because these
objective findings could serve to explain Plaintiff's right arm limitations, it is
evidence of “an underlying medically determinable physical impairment that

6


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ANTHONY HERNANDEZ,
Plaintiff, : Case No. 3:17-CV-00419
vs. : JUDGE WALTER H. RICE
NANCY A. BERRYHILL,
Acting Commissioner of the

Social Security Administration

Defendant.

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE (DOC. #12); OBJECTIONS OF
DEFENDANT NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION, TO SAID JUDICIAL FILING (DOC.
#13) ARE OVERRULED; COMMISSIONER’S NON-DISABILITY FINDING
VACATED AND NO FINDING MADE AS TO WHETHER PLAINTIFF WAS
UNDER A DISABILITY; CASE REMANDED TO SOCIAL SECURITY
ADMINISTRATION UNDER SENTENCE SIX OF 42 U.S.C. 8 405(g) FOR
FURTHER CONSIDERATION CONSISTENT WITH THE REPORT AND
RECOMMENDATIONS; CAPTIONED CAUSE IS TO BE
ADMINISTRATIVELY PROCESSED DURING THE PENDENCY OF THE
REMAND; TERMINATION ENTRY

On December 31, 2012, Plaintiff, Anthony Hernandez (“Hernandez”), pro se,
filed an application for Social Security disability benefits. Following a denial on
July 28, 2014, of said benefits by the administrative law judge (“ALJ”), Doc. #6,
PAGEID##80-90, Hernandez submitted results of two MRI's he had in December

2014, and March 2015, along with some additional materials, to the Appeals


could reasonably be expected to produce the claimant’s symptoms.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (citing 20 C.F.R. §
416.929(a)).

Accordingly, the Court ADOPTS the Report and Recommendations of the
Magistrate Judge, Doc. #12, and OVERRULES Defendant's Objections, Doc. #13, to
the Report and Recommendations. The Commissioner's non-disability finding is
vacated and no finding is made as to whether Plaintiff is under a disability. The
case is remanded to the Commissioner, pursuant to sentence six of 42 U.S.C. §
405(g), for further proceedings, consistent with of the Report and
Recommendations. Evaluation of the results of the MRIs taken December 29,
2014, and March 9, 2015, as well as other materials, Exhibits 21E, 12F and 13F,
submitted to the Appeals Council, are to be considered.

The captioned cause is hereby ordered administratively processed and thus
terminated upon the docket records of the United States District Court for the
Southern District of Ohio, Western Division, at Dayton, during the pendency of the

remand.

September 26, 2019 i a

WALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT

Copies to:
Counsel of record


Council. Doc. #6, PAGEID#75. Plaintiffs request for review was denied in July
2015, /d., PAGEID##70-71. Thereafter, Plaintiff filed suit pursuant to 42 U.S.C.

§ 405(g) in order to review the decision of Defendant, Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration (“Commissioner”), denying
him disability benefits.

On April 4, 2019, Magistrate Judge Sharon L. Ovington filed a Report and
Recommendations, Doc. #12, recommending that (1) the Commissioner’s non-
disability finding be vacated; (2) that no finding be made as to whether Hernandez
was under a disability within the meaning of the Social Security Act; (3) that the
case be remanded to the Social Security Administration under sentence six of 42
U.S.C. 8 405(g) for further consideration consistent with the Report; and (4) that
the case be administratively processed, but not terminated on the docket of this
Court. Doc. #12, PAGEID#616.

The Commissioner has filed objections to the Magistrate Judge’s filing,
Doc. #13, asserting that the “new evidence” consisting of two MRI's taken after
the July 28, 2014, did not “warrant a new hearing and new decision.” /d.,
PAGEID#618. Instead, the proper remedy, according to the Commissioner, is for
Hernandez to re-apply for benefits for the period after the ALJ’s July 28, 2014,
decision.

Based upon the reasoning and citations of authority set forth in the
Magistrate Judge’s Report and Recommendations, Doc. #12, as well as upon a
thorough de novo review of this Court's file, including the Administrative

2


Transcript, Doc. #6, and a thorough review of the applicable law, this Court
ADOPTS the Report and Recommendations and OVERRULES the Commissioner's
Objections, Doc. #13, to said judicial filing. The Court, in so doing, vacates the
decision of the Commissioner that Plaintiff was not disabled and, therefore, not
entitled to benefits under the Act, as not supported by substantial evidence, and
remands the matter, pursuant to sentence six of 42 U.S.C. § 405(g), to the
Commissioner for further proceedings consistent with the Report and
Recommendations. On remand, the Commissioner must consider the results of
the magnetic resonance imaging (“MRI”) taken on December 29, 2014, and March
9, 2015, as well as other materials, Exhibits 21E, 12F and 13F, submitted to the
Appeals Council but unavailable to the Commissioner’s Administrative Law Judge
(“ALJ”) at the time the ALJ issued his decision on July 28, 2014, that Hernandez
was not disabled. Doc. #6, PAGEID##80-94.

In reviewing the Commissioner's decision, the Magistrate Judge’s task is to
determine if that decision is supported by “substantial evidence.” 42 U.S.C. §
405(g). Under 28 U.S.C. § 636(b)(1)(C), this Court, upon objections being made to
the Magistrate Judge’s Report and Recommendations, is required to make a de
novo review of those recommendations of the report to which objection is made.
Additionally, pursuant to the sixth sentence of 42 U.S.C. § 405(g), “a [D]istrict
[Clourt, before making a final judgment, may order the [Commissioner] to
consider additional evidence because a party presents material evidence to the
[C]ourt that was not previously available.” Faucher v. Sec'y of Health & Human

8