UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dean Poirier

v. Civil No. 14-cv-242-LM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration

O R D E R

Dean Poirier applied for, and was denied, both Social

Security disability insurance benefits, see

, and

supplemental security income, see

. He has

appealed the Acting Commissioner’s decision to deny his

applications. Before the court is Poirier’s motion to remand

his case to the Acting Commissioner, under sentence six of

(g). The Acting Commissioner objects. For the

reasons that follow, Poirier’s motion for a sentence-six remand

is denied.

I. Background

On May 16, 2013, Poirier appeared for a hearing on his

claims before a Social Security Administrative Law Judge

(“ALJ”). He brought with him his ex-wife and son, who he

intended to have testify on his behalf. He was not represented by counsel. In an affidavit, Poirier describes what happened

just before his hearing:

We all waited in the Social Security waiting room. When it was time for my hearing, a woman called and said it was my turn and motioned towards the door of the hearing room.

I tried to go into the hearing room with my ex- wife and son. The woman told me that they could not go in.

After she told me that they could not go in, I explained to her that my ex-wife and son were present to testify about my disability. She told me again that they could not go in.

Cl.’s Mot. to Remand, Poirier Aff. (doc. 10-1) ¶¶ 5-7. He then

describes the following conversation between himself and the

ALJ, which occurred off the record:

When I entered the hearing room, ALJ [Matthew] Levin asked me if I had representation. . . .

I told him that, “My ex-wife and my oldest son were here to testify on my behalf, but the lady at the desk told me they could not come in.”

The ALJ then said “No.” By that, I understood that he meant that they could not come into the hearing room.

Id. ¶¶ 8-10.

The ALJ began the hearing by questioning Poirier. After he

finished with that, the ALJ turned to the vocational expert, but

did not ask Poirier about the witnesses he had previously

mentioned to the ALJ off the record. See Administrative

2 Transcript (hereinafter “Tr.”) 47. After the ALJ finished

questioning the vocational expert, he asked Poirier: “Do you

have any questions for the vocational expert or anything else

you want to tell me?” Tr. 52. Poirier offered some further

testimony, but did not ask to introduce testimony from his ex-

wife or son. See Tr. 52-53.

In his decision, the ALJ discussed Poirier’s testimony

about the symptoms of his impairments, but found that his

“statements concerning the intensity, persistence and limiting

effects of these symptoms [were] not entirely credible for the

reasons explained in this decision.” Tr. 17. Those reasons

included lack of support from: (1) the objective medical

findings; (2) Poirier’s treatment records; and (3) his

activities of daily living. See Tr. 17-19. The ALJ did not

identify a lack of corroboration from lay witnesses as a reason

for declining to find Poirier’s statements to be less than fully

credible.

Based upon the foregoing, Poirier asks the court to remand

his case to the Acting Commissioner for the purpose of holding a

new hearing at which testimony would be taken from his ex-wife

and son. Poirier also asks the court to direct the Acting

Commissioner to assign his case to a different ALJ on remand,

because certain comments by the ALJ (not reported above) and

3 some of his body language demonstrated bias against him on the

part of the ALJ.

II. Relevant Law

The statute on which Poirier bases his request for remand

provides, in pertinent part, that “[t]he court . . . may at any

time 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.”

(g).

III. Discussion

A. Remand

Poirier begins his motion for a remand in the following

way:

Pursuant to Sentence 6 of

(g) . . . Dean A. Poirier moves this Court to enter an order remanding the final decision of the Social Security Commissioner . . . because the Administrative Law Judge . . . committed legal error by failing to develop the record adequately when he did not allow the testimony of lay witnesses in support of Mr. Poirier.

Cl.’s Mot. for Remand (doc. no. 10) 1. In the passage quoted

above, Poirier seeks a sentence-six “pre-judgment remand.” See

Seavey v. Barnhart,

(describing sentence six as

pertaining to remand ordered before the court rules on the

4 validity of the Commissioner’s decision). But his basis for

remand, a legal error by the ALJ, is stated in terms that

pertain to a sentence-four “post-judgment remand.” See

(describing sentence four as pertaining to remand ordered after

the court determines that the Commissioner has committed a legal

error) (citing Faucher v. Sec’y of Health & Human Servs.,

(6th Cir. 1994) (describing in detail the

differences between sentence-four and sentence-six remands)).

Similarly, in Poirier’s memorandum of law, he asks for a

sentence-six remand, but also argues that because the ALJ

committed a prejudicial error of law by failing to develop the

record, his decision should be reversed, and the case remanded.

See Cl.’s Mem. of Law (doc. no. 10-4) 3-7.

In her objection to Poirier’s motion for remand, the Acting

Commissioner addresses only the issue of a sentence-six remand.

The court follows suit, and declines to rule on the adequacy of

the ALJ’s development of the record until that issue is properly

raised and argued in the context of a motion to reverse the

ALJ’s decision. That said, the parties engage on all three of

the requirements for a sentence-six remand stated in

(g), i.e., newness, materiality, and good cause. The court

considers each in turn.

5 1. Newness

With regard to what makes evidence new, the Supreme Court

has explained that a sentence-six remand may be warranted

“because new evidence has come to light that was not available

to the claimant at the time of the administrative proceeding.”

Melkonyan v. Sullivan,

(1991). In other words,

“[t]o be considered ‘new,’ the evidence must have been

unavailable during the administrative proceedings.” Moore v.

Astrue, No. 11-cv-11936-DJC,

, at *16 (D. Mass.

Mar. 2, 2013) (citing Miller ex rel. K.M. v. Astrue, Civil No.

2009-12018-RBC,

, at *15 (D. Mass. June 16,

2011); Ortiz Rosado ex rel. Rosado Guitierrez v. Barnhart,

, 67 n.1 (D. Mass. 2004)).1

The problem with Poirier’s newness argument is that the

evidence he seeks to add to the record by means of a sentence-

1 In his memorandum of law, Poirier relies upon a newness standard that does not expressly state the requirement that to be new, evidence must have been unavailable to the claimant at the time of his hearing. See Evangelista v. Sec’y of Health & Human Servs.,

(1st Cir. 1987). In Evangelista, upon which claimant relies for his newness argument, the doctor who wrote the report at issue “first appeared on the scene . . . subsequent not only to the Secretary’s final decision, but some nine months after suit had been instituted in the district court.”

. Thus, the opinion in that case does not support the proposition that sentence-six new evidence can include evidence that was in existence and was available to a clamant at the time of his hearing.

6 six remand was available during the administrative proceeding.

That is, in fact, precisely Poirier’s point; he argues that he

was prevented from introducing the testimony of witnesses who

were waiting just outside the hearing room. The facts of this

case might support a sentence-four post-judgment remand, a

matter on which the court offers no opinion, but because that

evidence was in existence and was available to him at the time

of his hearing, the evidence he seeks to place before the ALJ is

not new within the meaning of sentence six of

(g). Thus, Poirier is not entitled to a sentence-six remand.

2. Materiality

Even assuming that the testimony Poirier wanted to

introduce is new evidence under § 405(g), it is not material.

For the purposes of sentence six, evidence is material if it

“might have changed the outcome of the prior proceeding.”

Melkonyan,

(citing Sullivan v. Finkelstein,

(1990)); see also Evangelista v. Sec’y of Health &

Human Servs.,

(1st Cir. 1987) (“remand is

indicated only if, were the proposed new evidence to be

considered, the [Acting Commissioner]’s decision ‘might

reasonably have been different’”) (quoting Falu v. Sec’y of

Health & Human Servs.,

(1st Cir. 1983)).

7 Here, there is no reasonable possibility that the ALJ’s

decision would have been any different if he had heard testimony

from Poirier’s ex-wife or son. Their testimony would have been

relevant as corroboration of Poirier’s statements concerning

pain and other symptoms of his impairments. See Lopez v. Sec’y

of Health & Human Servs.,

(2d Cir. 1984)

(“Certainly, the corroborative testimony . . . would have been

valuable in assessing the credibility of appellant’s

testimony.”). And, indeed, if the ALJ’s credibility assessment

had been based upon a lack of corroborative testimony, then the

testimony of Poirier’s ex-wife and son might well have been

material. But, the ALJ discounted Poirier’s statements for

being inconsistent with the objective medical records, Poirier’s

treatment history, and his activities of daily living. Thus,

there is virtually no likelihood that the ALJ would have made a

different credibility assessment, or a different decision, if he

had heard corroborative testimony from Poirier’s ex-wife and

son. Therefore, their testimony is not material. See

Melkonyan,

. That, in turn, is a second reason

why Poirier is not entitled to a sentence-six remand.

3. Good Cause

“The ‘good cause’ element of sentence six only comes into

play when a claimant presents evidence not in existence or

8 available to him at the time of the ALJ hearing that might have

changed the outcome.” Courtemanche v. Astrue, No. CA 10-427M,

, at *13 (D.R.I. July 14, 2011) (citing Seavey,

), report & recommendation adopted by

. Because Poirier has not established the first two

requirements for a sentence-six remand, the court has no need to

address the good-cause standard, which has been characterized as

“stringent,” Black v. Astrue, No. 1:10-cv-175-JAW,

, at *7 (D. Me. Mar. 29, 2011) (citing Evangelista,

), report & recommendation accepted by

.

4. Summary

Poirier has failed to show that the evidence he seeks to

place before the ALJ by means of a sentence-six remand is either

new or material. Accordingly, his motion for a remand is

denied. The court’s ruling on Poirier’s request for a sentence-

six pre-judgment remand, however, does nothing to preclude

Poirier from arguing, in a motion to reverse the Acting

Commissioner’s decision, that the ALJ committed a legal error by

failing to properly develop the record. Because a court issuing

a sentence-six remand “does not affirm, modify, or reverse the

[Acting Commissioner]’s decision [and] does not rule in any way

as to the correctness of the administrative determination,”

9 Melkonyan,

, it must necessarily be the case that

a court that declines to issue a sentence-six remand also does

not rule on the correctness of the administrative determination.

Therefore, the correctness of the ALJ’s decision remains

resolved and, thus, is a question for another day.

B. Different ALJ

Because the court has determined that a sentence-six remand

is not warranted in this case, there is no need to address

claimant’s argument that his claim should be assigned to a

different ALJ on remand.

IV. Conclusion

For the reasons detailed above, Poirier’s motion for a

sentence-six remand, document no. 10, is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

February 25, 2015

cc: Dennett B. Mortell, Esq. Robert J. Rabuck, Esq.

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