The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER VACATING THE DECISION
OF THE COMMISSIONER
AND REMANDING FOR
On September 5, 2006, plaintiff Mayda J. Patton applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83f (2006), respectively. (Administrative Record, pp. 12, 101-107).*fn1
These filings have a protective date of August 23, 2006. (JSMF ¶ 1). Her claims were denied initially and upon reconsideration. Id. An administrative law judge (ALJ) held an evidentiary hearing on February 26, 2009. Id. Ms. Patton appeared pro se. Id. The ALJ issued a written decision on April 2, 2009, adverse to Ms. Patton, concluding she was not disabled (the "ALJ Decision"). Id.; see also ALJ Decision, AR, pp. 12-20. The Appeals Council denied Ms. Patton's request for review. Id. The decision of the ALJ became the final decision of the Commissioner. Id. Ms. Patton timely filed her complaint in district court. (Docket 1).
The court issued a briefing schedule requiring the parties to file a JSMF. (Docket 11). If there were any disputed facts, the parties were required to attach a separate joint statement of disputed facts. Id. The parties filed their JSMF.*fn2 The parties also filed a joint statement of disputed material facts. (Docket 19). Ms. Patton then filed a motion for order reversing the decision of the Commissioner or for remand for new hearing. (Docket 20). Following briefing, the motion is ripe for resolution.
For the reasons stated below, plaintiff's motion is granted in part and denied in part and the matter is remanded to the Commissioner for a new hearing consistent with this order.
FACTUAL AND PROCEDURAL HISTORY The parties' JSMF is incorporated by reference. Further recitation of salient facts is included in the discussion section of this order.
The Commissioner's findings must be upheld if supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the Commissioner's decision to determine if an error of law was committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
"Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation marks omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the Commissioner's decision. Choate, 457 F.3d at 869 (quoting Ellis v.Barnhart, 392 F.3d 988, 993 (8th Cir. 2005)). The review of a decision to deny disability benefits is "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision . . . [the court must also] take into account whatever in the record fairly detracts from that decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this court would have decided the case differently, it cannot reverse the Commissioner's decision if that decision is supported by good reason and is based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A reviewing court may not reverse the Commissioner's decision " 'merely because substantial evidence would have supported an opposite decision.' " Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).
As part of the submission in support of Ms. Patton's motion to reverse the decision of the Commissioner, she attached one hundred pages of medical records which she asserts the ALJ failed to request and, thus, failed to consider prior to issuing the decision. See Dockets 21, pp. 22-23, and 21-1, pp. 1-100. It is troubling to the court that Ms. Patton did not make reference to these medical records in the JSMF. Certainly, these medical records, which Ms. Patton now calls "undeveloped relevant evidence," (Docket 21 at p. 22) were available to Ms. Patton and her attorney during the time the parties were developing the JSMF and joint statement of disputed facts as contemplated by the briefing schedule. (Docket 11). Equally troubling is the Commissioner's memorandum on this issue. (Docket 28, pp. 22-25).
"Sentence six of 42 U.S.C. § 405(g) authorizes [the court] to remand a case to the Commissioner where 'new and material evidence is adduced that was for good cause not presented during the administrative proceedings.' " Krogmeier v. Barnhart, 294 F.3d 1019, 1024-25 (8th Cir. 2002) (citing Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000)). "The court . . . may at any time order additional evidence to be taken before the Commissioner . . . , 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). "Material evidence is 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." Krogmeier, 294 F.3d at 1025 (internal citation and quotation marks omitted).
The Commissioner acknowledges he has a duty to develop the record of medical sources for at least the twelve months preceding the month in which Ms. Patton filed her application. (Docket 28, p. 23) (citing 20 C.F.R. §§ 404.1512(d), (d)(2), and 416.912(d), (d)(2)). "Our responsibility. Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application . . . . We will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports." 20 C.F.R. §§ 404.1512(d) and 416.912(d)(2). The Commissioner also ...