Primo v. Commissioner of Social Security

Background

Wesley Primo sought judicial review under Section 405(g) of the Social Security Act of the Commissioner of Social Security’s decision denying disability benefits. Magistrate Judge Pitman recommended denying the Commissioner’s motion for judgment on the pleadings and remanding the case for further proceedings because the administrative law judge (ALJ) had not adequately developed the record concerning Primo’s mental impairment. The report found that the ALJ’s decision regarding Primo’s physical impairments was supported by substantial evidence.

Primo objected to the recommended remand. He argued that the existing record showed he was entitled to benefits and that any remand should be limited to calculating benefits. Alternatively, he argued that a May 2019 report and functional-capacity questionnaire from his treating psychiatrist, Dr. Donn Wiedershine, were new and material evidence requiring a remand under sentence six of Section 405(g). Primo had represented himself before the ALJ and during the motion practice before Judge Pitman, but counsel represented him when he objected to the report.

Court’s Analysis

The court reviewed Primo’s specific objections independently. It rejected his request for a remand limited to calculating benefits because the record did not rule out the possibility that further evidence could support the Commissioner’s conclusion that Primo did not have a disabling mental impairment. The record included evidence that Primo could interact with others, leave home alone, use public transportation, socialize with family, and speak on the telephone. The court also noted that the ALJ had not resolved tensions between this evidence and Primo’s statements about difficulty dealing with people.

The court then considered whether the psychiatrist’s report supported a sentence-six remand. Sentence six permits a court to order the agency to consider additional evidence when the evidence is new, material, and was not previously submitted for good reason. The court found good cause because Primo had proceeded without a lawyer during the administrative proceedings and the ALJ had failed to obtain necessary information from his treating psychiatrist.

The court found the evidence relevant and potentially material. Dr. Wiedershine’s report described Primo’s symptoms, diagnoses, and history of depressive episodes, and stated that the symptoms existed during the relevant period beginning in August 2013. The court concluded that the report, together with treatment records and Primo’s testimony, could reasonably affect the agency’s decision about the severity of his mental impairment and his ability to interact with the public and perform his past work. The court also explained that the current materials did not require the ALJ to give the psychiatrist’s opinion controlling weight because the opinion relied on an undocumented patient history. On remand, the ALJ must determine what weight to give the opinion after considering the treatment relationship, supporting evidence, consistency with the record, specialization, and other relevant factors.

Disposition

Judge Laura Taylor Swain adopted Magistrate Judge Pitman’s report and recommendation in its entirety. The court denied the Commissioner’s motion for judgment on the pleadings and remanded the matter pursuant to sentence six of Section 405(g) for development and consideration of additional evidence concerning Primo’s claimed psychiatric disability, including his ability to interact with the public and his testimony about his symptoms.

The court retained jurisdiction. After obtaining and considering the additional evidence, the Commissioner must modify or affirm the findings or decision and file them with the court as required by sentence six. The clerk was directed to close the case pending that filing, and the parties were directed to request that the case be reopened when the filing is made. The order did not itself award disability benefits or finally decide Primo’s eligibility for them.