United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
GUSTAVE DIAMOND UNITED STATES DISTRICT JUDGE
AND NOW, this 31st day of March, 2015, upon due consideration of the parties' cross-motions for summary judgment relating to plaintiffs request for review of the decision of the Commissioner of Social Security ("Commissioner") denying plaintiffs applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act"), IT IS ORDERED that the Commissioner's motion for summary judgment (Document No, 20) be, and the same hereby is, granted and plaintiffs motion for summary judgment (Document No. 15) be, and the same hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an obligation to weigh all of the facts and evidence of record and may reject or discount any evidence if the ALJ explains the reasons for doing so. Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). Importantly, where the ALJ's findings of fact are supported by substantial evidence, a reviewing court is bound by those findings, even if it would have decided the factual inquiry differently. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). These well-established principles preclude a reversal or remand of the ALJ's decision here because the record contains substantial evidence to support the ALJ's findings and conclusions.
Plaintiff protectively filed her pending applications for DIB and SSI on June 22, 2010, alleging a disability onset date of November 25, 2008, due to, inter alia, pain in her back, neck, shoulders and knees. Plaintiffs applications were denied initially. At plaintiffs request an ALJ held a hearing on August 15, 2011, at which plaintiff, represented by counsel, appeared and testified. On January 20, 2012, the ALJ issued a decision finding that plaintiff is not disabled. On August 1, 2013, the Appeals Council denied review making the ALJ's decision the final decision of the Commissioner.
Plaintiff was 42 years old at the time of the ALJ's decision and is classified as a younger person under the regulations. 20C.F.R. §§404.1563(c) and 416.963(c). Plaintiff has a tenth grade education which is classified as limited. 20 C.F.R. §§404.1564(b)(3) and 416.964(b)(3). She has no past relevant work experience and has not engaged in any substantial gainful activity since her alleged onset date.
After reviewing plaintiffs medical records and hearing testimony from plaintiff and a vocational expert, the ALJ concluded that plaintiff is not disabled within the meaning of the Act. The ALJ initially found that plaintiff suffers from a number of severe physical impairments, including, inter alia, status post right ACL tear; degenerative disc disease of the cervical/thoracic/lumbar spine; muscle spasm; and, migraine headaches. In addition, the ALJ determined that plaintiff suffered from "memory loss." (R. 199). However, the ALJ determined that plaintiffs impairments, alone or in combination, do not meet or medically equal the criteria of any of the impairments listed at Appendix 1 of 20 C.F.R., Part 404, Subpart P.
The ALJ also found that plaintiff retains the residual functional capacity to perform sedentary work with numerous restrictions to accommodate the limiting effects of her physical and mental impairments. A vocational expert identified numerous categories of jobs which plaintiff can perform based upon her age, education, work experience and residual functional capacity, including order clerk, charge account clerk and production inspector. Relying on the vocational expert's testimony, the ALJ found that plaintiff is capable of making an adjustment to work which exists in significant numbers in the national economy. Accordingly, the ALJ determined that plaintiff is not disabled.
The Act defines "disability" as the inability to engage in substantial gainful activity by reason of a physical or mental impairment which can be expected to last for a continuous period of at least twelve months. 42 U.S.C. §§423(d)(l)(A) and 1382c(a)(3)(A). The impairment or impairments must be so severe that the claimant "is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy ...." 42 U.S.C. §§423(d)(l)(B) and 1382c(a)(3)(B).
The Commissioner has promulgated regulations incorporating a five-step sequential evaluation process for determining whether a claimant is under a disability. 20 C.F.R. §§404.1520 and 416.920; Newell v. Commissioner of Social Security, 347 F.3d 541, 545 (3d Cir. 2003). If the claimant is found disabled or not disabled at any step, the claim need not be reviewed further. Id.; see Barnhart v. Thomas, 124 S.Ct. 376 (2003).
Here, plaintiff raises three challenges to the ALJ's finding of not disabled: (1) new and material evidence warrants a remand for additional consideration; (2) in assessing plaintiffs residual functional capacity, the ALJ erred in giving any weight to the opinion of Dr. J. Michael Moses, plaintiffs treating orthopedic surgeon; and, (3) the ALJ failed to develop the record in regard to plaintiffs mental impairments by not ordering a consultative examination. Upon review, the court is satisfied that the ALJ properly evaluated the evidence and that all of the ALJ's findings are supported by substantial evidence.
Plaintiffs first argument is that a remand is necessary in this case so that the ALJ may consider additional records that were submitted for the first time to the Appeals Council. This additional evidence consists of 49 exhibits, designated as Exhibits 33 F - 81 F, containing over 700 pages of medical records that were not presented to the ALJ. (R. 767-1491). Although these exhibits were submitted to the Appeals Council, the Appeals Council found that "this information does not provide a basis for changing" the ALJ's decision, and denied plaintiffs request for review. Plaintiff now argues that this case should be remanded for consideration of this evidence. Upon review, this court finds that a remand is not warranted in this case.
Generally, when a claimant proffers evidence in the district court that previously was not presented to the ALJ, the district court's determination of whether to remand to the Commissioner is governed by Sentence 6 of §405(g) of the Act. See Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). Sentence 6 permits remand "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." See also Szubak v. Secretary of Health & Human Services, 745 F.2d 831, 833 (3d Cir. 1984). "[A] claimant must satisfy all three requirements of Sentence 6 (new, material and good cause) in order to justify a remand." Matthews at 594; Szubak at 833.
Here, plaintiff can meet none of the requirements. In order to support a sentence 6 remand, "the evidence must first be 'new' and not merely cumulative of what already is in the record." Szubak, 745 F.2d at 833. "Evidence is new if it was not and could not have been presented at the prior administrative proceeding." DeMoss v. Heckler, 706 F.Supp. 303, 308 (D.Del. 1988). In this case, 33 of the 49 "new exhibits' contain records from the period prior to plaintiffs hearing on August 15, 2011, 2 cover the period during which the ALJ held the record open for the submission of any additional evidence, and, with the exception of a one-page treatment note dated February 6, 2012, contained in Exhibit 8IF, the remaining 14 exhibits cover the period between the hearing and the ALJ's decision on January 20, 2012. In addition, many of these records also are cumulative of evidence that was submitted to the ALJ. Accordingly, because all of this evidence clearly was in existence prior to the ALJ's decision and could have been presented below, and much of it is cumulative in any event, a remand for consideration of this evidence would not be appropriate in this case. See Edwards v. Astrue, 525 F.Supp.2d 710, 712-13 (E.D.Pa. 2007) ("Where the allegedly new and material evidence was in existence before the ALJ's decision, remanding a case pursuant to sentence six would 'eliminate plaintiff s responsibility to present her case for disability before the [Commissioner]' and fail to serve the principle that new evidence remands 'should be narrowly circumscribed to facilitate the speedy disposition of meritorious claims"')(citations omitted).
Secondly, plaintiff cannot show that any of the exhibits are material, i.e., that there is a reasonable probability that the evidence would have changed the outcome of the disability determination. Szubak, 745 F.2d at 833. In this regard, plaintiff has offered nothing but mere speculation that any of the exhibits would have altered the ALJ's decision, and the court notes that the Appeals Council specifically observed that the information does not provide a basis for changing the ALJ's determination. However, even if any of the information arguably could be deemed material, as already noted, ...