UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gina M. Skidds,

Claimant

v. Civil No. 05-cv-383-SM

Opinion No. 2006 DNH 060

Jo Anne B. Barnhart, Commissioner,

Social Security Administration

Defendant

O R D E R

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,

Gina Skidds, moves to reverse the Commissioner’s decision denying

her application for Social Security Disability Insurance Benefits

under Title II of the Social Security Act, 42 U.S.C. § 423 (the

“Act”) and Supplemental Security Income Benefits under Title XVI

of the Act, 42 U.S.C. §§ 1381-1383c. The Commissioner objects

and moves for an order affirming her decision. For the reasons

set forth below, the matter is remanded for further proceedings. 

Factual Background

I. Procedural History.

In the summer of 2003, claimant filed applications for

disability insurance benefits and supplemental security income

benefits under Titles II and XVI of the Act, alleging that she

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had been unable to work since May 31, 2003, due to disc disease

of the lumbar spine, chronic lumbar strain, hip and shoulder

bursitis, and anemia. Her applications were denied and she

requested an administrative hearing. 

On November 18, 2004, claimant and her attorney appeared

before an Administrative Law Judge (“ALJ”), who considered

claimant’s applications de novo. On February 23, 2005, the ALJ

issued his decision, concluding that claimant retained the

residual functional capacity to perform substantially all of the

full range of sedentary work. Accordingly, he determined that

she was not disabled, as that term is defined in the Act, at any

time prior to the date of his decision. 

Claimant then sought review of the ALJ’s decision by the

Appeals Council and, in support of that request, submitted

additional evidence that had not been available at the time of

her administrative hearing: a “Physical Residual Functional

Capacity Questionnaire” prepared by Dr. Michael O’Connell, M.D.,

a physician from whom claimant had recently begun receiving

treatment. Administrative Record (“Admin. Rec.”) at 379-83. On

September 19, 2005, however, the Appeals Council denied her

request for review, thereby rendering the ALJ’s decision a final

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decision of the Commissioner, subject to judicial review. 

Claimant then filed an action in this court, asserting that the

ALJ’s decision was not supported by substantial evidence and

seeking a judicial determination that she is disabled within the

meaning of the Act. Subsequently, she filed a “Motion for Order

Reversing Decision of the Commissioner” (document no. 7). The

Commissioner objected and filed a “Motion for Order Affirming the

Decision of the Commissioner” (document no. 8). Those motions

are pending. 

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court’s record (document no. 9), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate. 

Standard of Review

I. Properly Supported Findings by the ALJ are

Entitled to Deference. 

Pursuant to 42 U.S.C. § 405(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

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1 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938). It is something less than the weight of the evidence,

and the possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v. Federal

Maritime Comm’n., 383 U.S. 607, 620 (1966).

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Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings of the Commissioner are

conclusive if supported by substantial evidence.1 See 42 U.S.C.

§§ 405(g), 1383(c)(3); Irlanda Ortiz v. Secretary of Health &

Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Moreover,

provided the ALJ’s findings are supported by substantial

evidence, the court must sustain those findings even when there

may also be substantial evidence supporting the adverse position. 

See Tsarelka v. Secretary of Health & Human Services, 842 F.2d

529, 535 (1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a different

conclusion, so long as it is supported by substantial

evidence.”). See also Rodriguez v. Secretary of Health & Human

Services, 647 F.2d 218, 222-23 (1st Cir. 1981). 

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services, 747 F.2d 37, 40 (1st Cir. 1984)

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(citing Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982)). It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence. 

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner], not the courts.” Irlanda Ortiz, 955 F.2d at 769

(citation omitted). Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v. Secretary of Health & Human Services, 829 F.2d 192,

195 (1st Cir. 1987) (citing Da Rosa v. Secretary of Health &

Human Services, 803 F.2d 24, 26 (1st Cir. 1986)). 

II. The Parties’ Respective Burdens. 

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The Act

places a heavy initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v. Yuckert, 482

U.S. 137, 146-47 (1987); Santiago v. Secretary of Health & Human

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Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that burden,

the claimant must prove that her impairment prevents her from

performing her former type of work. See Gray v. Heckler, 760

F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v. Secretary of

Health & Human Services, 690 F.2d 5, 7 (1st Cir. 1982)). 

Nevertheless, the claimant is not required to establish a doubtfree claim. The initial burden is satisfied by the usual civil

standard: a “preponderance of the evidence.” See Paone v.

Schweiker, 530 F. Supp. 808, 810-11 (D. Mass. 1982). 

Provided the claimant has shown an inability to perform her

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that she can

perform. See Vazquez v. Secretary of Health & Human Services,

683 F.2d 1, 2 (1st Cir. 1982). If the Commissioner shows the

existence of other jobs that the claimant can perform, then the

overall burden to demonstrate disability remains with the

claimant. See Hernandez v. Weinberger, 493 F.2d 1120, 1123 (1st

Cir. 1974); Benko v. Schweiker, 551 F. Supp. 698, 701 (D.N.H.

1982). 

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

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medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);

Goodermote, 690 F.2d at 6. When determining whether a claimant

is disabled, the ALJ is also required to make the following five

inquiries: 

(1) whether the claimant is engaged in substantial

gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or equals a listed

impairment;

(4) whether the impairment prevents the claimant from

performing past relevant work; and

(5) whether the impairment prevents the claimant from

doing any other work.

20 C.F.R. § 404.1520. See also 20 C.F.R. § 416.920. Ultimately,

a claimant is disabled only if her: 

physical or mental impairment or impairments are of

such severity that [she] is not only unable to do [her]

previous work but cannot, considering [her] age,

education, and work experience, engage in any other

kind of substantial gainful work which exists in the

national economy, regardless of whether such work

exists in the immediate area in which [she] lives, or

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whether a specific job vacancy exists for [her], or

whether [she] would be hired if [she] applied for work. 

42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm her

decision. 

Discussion

I. Background - The ALJ’s Findings.

In concluding that Ms. Skidds was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory fivestep sequential evaluation process described in 20 C.F.R. §§

404.1520 and 416.920. Accordingly, he first determined that she

had not been engaged in substantial gainful employment since her

alleged onset date of May 31, 2003. Next, he concluded that

claimant suffers from “disc disease of the lumbar spine; chronic

lumbar strain; hip and shoulder bursitis; and dysmenorrhea,

impairments that are ‘severe’ within the meaning of the

Regulations.” Admin. Rec. at 23. Nevertheless, the ALJ

determined that those impairments, regardless of whether they

were considered alone or in combination, did not meet or

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2 “RFC is what an individual can still do despite his or her

functional limitations. RFC is an administrative assessment of

the extent to which an individual’s medically determinable

impairment(s), including any related symptoms, such as pain, may

cause physical or mental limitations or restrictions that may

affect his or her capacity to do work-related physical and mental

activities. Ordinarily, RFC is the individual’s maximum

remaining ability to do sustained work activities in an ordinary

work setting on a regular and continuing basis, and the RFC

assessment must include a discussion of the individual’s

abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,

Policy Interpretation Ruling Titles II and XVI: Assessing

Residual Functional Capacity in Initial Claims, 1996 WL 374184 at

*2 (July 2, 1996) (citation omitted). 

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medically equal any of the impairments listed in Part 404,

Subpart P, Appendix 1. Id. 

The ALJ next concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

substantially all of the requirements of sedentary work.2 He

also determined that, notwithstanding claimant’s complaints of

pain and fatigue, her capacity for sedentary work was

“substantially intact and has not been compromised by any nonexertional limitations.” Admin. Rec. at 28. At step four of the

analysis, the ALJ concluded that, in light of claimant’s ability

to perform only sedentary work, she was incapable of returning to

any of her prior jobs. Admin. Rec. at 26. 

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Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform. Relying upon

the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P,

App. 2, tables 1-3, (also known as the “Grid”), he concluded

that, given claimant’s ability to perform substantially all of

the requirements of sedentary work, and considering her age,

education, and work experience, she “retains the capacity to

adjust to work that exists in significant numbers in the national

economy.” Admin. Rec. at 27. Consequently, the ALJ concluded

that claimant was not “disabled,” as that term is defined in the

Act, at any time through the date of his decision. 

In support of her motion to reverse the decision of the

Commissioner, claimant advances three arguments. First, she

asserts that the ALJ failed to consider her non-exertional

limitations (pain and fatigue) and, therefore, erred by relying

on the Grid rather than securing the opinion of a vocational

expert. Next, she says the ALJ failed to adequately explain the

basis for his decision to discount the credibility of claimant’s

assertions of disabling pain. And, finally, she claims the

Appeals Council erred in failing to discuss newly submitted

evidence that was presented to it, but not the ALJ (i.e., the new

Residual Functional Capacity Questionnaire completed by Dr.

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O’Connell). In the alternative, she says because the new

evidence is material and there was good cause for her failure to

present it to the ALJ, the court should remand this matter

pursuant to sentence six of 42 U.S.C. § 405(g). Because the last

of claimant’s three arguments has merit, the court need not

address her other claims. 

II. New and Material Evidence. 

In the physical residual functional capacity questionnaire

that he completed on behalf of claimant, Dr. O’Connell opines,

among other things, that: 

1. Claimant’s pain and other symptoms would be

severe enough to interfere with her attention

and concentration “frequently” during a

typical work day; 

2. Claimant is capable of sitting for only about

10-15 minutes and standing for about 10

minutes before needing to change positions

and/or walk around; 

3. During the course of a typical work day,

claimant could stand/walk for a total of less

than two hours, and sit for a total of

approximately two hours; 

4. Claimant would need to take unscheduled

breaks approximately each hour, lasting about

10 minutes, before she could return to work; 

5. As a result of her impairments, claimant

would likely miss work more than four days

each month; and

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6. Claimant’s impairments have existed since her

alleged onset date of May 31, 2003. 

Admin. Rec. 379-83. Based upon those opinions of her treating

physician (which were never presented to the ALJ), claimant

asserts that this matter should be remanded, so the ALJ may

reconsider his adverse decision in light of a more complete and

comprehensive record. 

In this circuit, there are two circumstances under which a

social security matter may be remanded based upon new evidence,

absent the consent of the Commissioner. The first is when new

evidence is presented to the Appeals Council and the council

refuses to grant review based upon an “egregiously mistaken

ground.” Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001). But,

when the Appeals Council gives no detailed reason for its refusal

to grant review, that decision is “effectively unreviewable.” 

Id. at 6. In this case, while the Appeals Council acknowledged

the new evidence presented by claimant, it gave no detailed

reason(s) for its refusal to grant review. Admin. Rec. at 9-12. 

Consequently, the court cannot conclude that its administrative

decision “rests on an explicit mistake of law or other egregious

error.” Mills, 244 F.3d at 5. 

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Alternatively, the court may remand a matter pursuant to

sentence six of 42 U.S.C. § 405(g). To be entitled to a remand

under that statutory provision, however, a claimant must

demonstrate 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.” Id. See also

Evangelista v. Secretary of Health & human Services, 826 F.2d

136, 139-43 (1st Cir. 1987). Evidence is “new” if it was “not in

existence or available to the claimant at the time of the

administrative proceeding.” Sullivan v. Finkelstein, 496 U.S.

617, 626 (1990). It is “material” if the ALJ might reasonably

have rendered a different decision if it had been presented to

him. Evangelista, 826 F.2d at 140. See also Woolf v. Shalala,

3 F.3d 1210, 1215 (8th Cir. 1993) (“To be material, new evidence

must be non-cumulative, relevant, and probative of the claimant’s

condition for the time period for which benefits were denied, and

there must be a reasonable likelihood that it would have changed

the [Commissioner’s] determination.”) (citations omitted); Rufino

v. Apfel, 2 F. Supp. 2d 479, 484-85 (S.D.N.Y. 1998) (“the Second

Circuit has identified a three-prong test that a [claimant] must

meet to satisfy these criteria: (1) the evidence is new and not

merely cumulative, (2) the evidence is material, meaning it is

both relevant to [claimant’s] condition during the time period

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covered by the decision and it could have affected the decision

had it been presented earlier, and (3) there is good cause for

not having presented this new evidence earlier.”) (citation

omitted and internal punctuation omitted). 

The evidence at issue in this case - the Physical Residual

Functional Capacity Questionnaire prepared by Dr. O’Connell -

meets each of the requirements of section 405(g). First, it is

undeniably “new”; it was not prepared until April 28, 2005, more

than two months after the ALJ issued his decision. It is also

“material” insofar as it directly bears on the dispositive issue

in this case: whether claimant retains the RFC for sedentary

work, as well as the related question concerning the nature and

extent of her alleged non-exertional limitations. And, finally,

there is plainly “good cause” for claimant’s failure to present

the report to the ALJ - she did not begin treatment with Dr.

O’Connell until after the ALJ issued his decision and Dr.

O’Connell’s report was not prepared until approximately two

months after that. See e.g., Cannon v. Bowen, 858 F.2d 1541,

1546 (11th Cir. 1988) (“The evidence in this case satisfies all

three requirements. It is clearly new, noncumulative evidence

because it includes an opinion of total disability from a

treating physician and a vocational expert. No similar evidence

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is introduced in the administrative record. [Claimant’s]

treating physician during this recent hospitalization speculated

that his physical limitations related back to May 1985, the date

of the alleged onset of disability. Such evidence, if not

discredited by the [Commissioner], is material and could change

the administrative result. Finally, there is good cause for

failing to present the evidence because it did not exist at the

time of the administrative hearing or the district court

proceedings. Thus, [claimant’s] motion to remand is granted and

the [Commissioner] should consider [claimant’s] new evidence when

it reconsiders his case.”) (citation omitted); Baran v. Bowen,

710 F. Supp. 53, 56 (S.D.N.Y. 1989) (“Because the reports were

written after the administrative hearing took place, there is

good cause for failure to incorporate them in the earlier

proceeding.”). 

In light of the foregoing, the court concludes that remand

under sentence six of 42 U.S.C. § 405(g) is appropriate. The

newly presented evidence reflects directly on claimant’s ability

to engage in substantial gainful activity and, if not effectively

refuted or legitimately discounted by the Commissioner, suggests

that she is totally disabled. Accordingly, principles of

fairness counsel in favor of affording claimant the opportunity

to present this evidence to the Commissioner so she might render

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her decision based upon a more complete and thorough

understanding of claimant’s impairments and their effect on her

ability to perform work-related activities. 

Conclusion

Having carefully reviewed the administrative record and the

arguments advanced by both the Commissioner and claimant, the

court concludes that it is appropriate to remand this matter for

further consideration. While the ALJ plainly cannot be faulted

for having rendered his decision without the benefit of evidence

that was never presented to him, claimant has demonstrated that

the report prepared by Dr. O’Connell is both new and material. 

She has also shown good cause for failing to present it in a more

timely manner. 

For the foregoing reasons, claimant’s motion to reverse the

decision of the Commissioner (document no. 7) is granted to the

extent she seeks a remand for further proceedings. The

Commissioner’s motion to affirm her decision (document no. 8) is

denied. 

Pursuant to Sentence Six of 42 U.S.C. § 405(g), this matter

is hereby remanded for further proceedings consistent with this

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order. The Clerk of Court shall administratively close the case

but, for purposes of the Equal Access to Justice Act, 28 U.S.C.

§ 2412, the court shall retain jurisdiction over this proceeding. 

Accordingly, the parties shall keep the court apprised of further

developments. 

SO ORDERED.

____________________________

Steven J. McAuliffe

United States District Judge

May 24, 2006

cc: Maureen A. Howard, Esq.

David L. Broderick, Esq.

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