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Mowbray v. Saul

United States District Court, W.D. Pennsylvania

August 15, 2019

THOMAS CHARLES MOWBRAY Plaintiff,
v.
ANDREW M. SAUL, Defendant.

          OPINION AND ORDER

          DONETTA W. AMBROSE UNITED STATES SENIOR DISTRICT JUDGE

         Synopsis

         Plaintiff Thomas Charles Mowbray (“Mowbray”) filed an application for supplemental security income (“SSI”) in October of 2014 alleging disability based upon both physical and mental impairments. His application was denied. He was represented by counsel at a hearing before an Administrative Law Judge (“ALJ) during which both he and a vocational expert (“VE”) testified. (R. 33-66) Ultimately, the ALJ denied benefits and the Appeals Council denied Mowbray's request for review. (R. 1-7) Proceeding pro se, Mowbray filed this appeal. The parties have filed Cross-Motions for Summary Judgment. See ECF Docket Nos. 15, 16, 17. For the reasons set forth below, the ALJ's decision is affirmed.

         Opinion

          1. Standard of Review

         Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g) and 1383(c)(3)(7). Section 405(g) permits a district court to review the transcripts and records upon which a determination of the Commissioner is based, and the court will review the record as a whole. See 5 U.S.C. § 706. When reviewing a decision, the district court's role is limited to determining whether the record contains substantial evidence to support an ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). Determining whether substantial evidence exists is “not merely a quantitative exercise.” Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986) (citing Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)). “A single piece of evidence will not satisfy the substantiality test if the secretary ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence - particularly certain types of evidence (e.g., that offered by treating physicians).” Id. The Commissioner's findings of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. §405(g); Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979); Richardson, 402 U.S. at 390, 91 S.Ct. 1420.

         Importantly, a district court cannot conduct a de novo review of the Commissioner's decision, or re-weigh the evidence of record; the court can only judge the propriety of the decision with reference to the grounds invoked by the Commissioner when the decision was rendered. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998); S.E.C. v. Chenery Corp., 332 U.S. 194, 196-7, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Otherwise stated, “I may not weigh the evidence or substitute my own conclusion for that of the ALJ. I must defer to the ALJ's evaluation of evidence, assessment of the credibility of witnesses, and reconciliation of conflicting expert opinions. If the ALJ's findings of fact are supported by substantial evidence, I am bound by those findings, even if I would have decided the factual inquiry differently.” Brunson v. Astrue, 2011 WL 2036692, 2011 U.S. Dist. LEXIS 55457 (E.D. Pa. Apr. 14, 2011) (citations omitted).

         II. The ALJ's Decision

         As stated above, the ALJ denied Mowbray's claim for benefits. More specifically, at step one, the ALJ found that Mowbray has not engaged in substantial gainful activity since the alleged onset date. (R. 18) At step two, the ALJ concluded that Mowbray suffers from the following severe impairments: DJD of the knees; chronic head pain; obesity; major depressive disorder; bipolar disorder; generalized anxiety disorder; obsessive-compulsive disorder; ADHD; and alcohol dependence. (R. 18-19) At step three, the ALJ determined that Mowbray does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.19-21) Between steps three and four, the ALJ decided that Mowbray has the residual functional capacity (“RFC”) to perform light work with certain restrictions. (R. 21-25) At step four, the ALJ found that Mowbray is unable to perform past relevant work. (R. 225) At the fifth step of the analysis, the ALJ concluded that, considering Mowbray's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that he can perform. (R. 26-27)

         III. Discussion

         Mowbray presents several issues on appeal. He disputes the ALJ's findings under the third step of the analysis that he did not satisfy any of the Listings requirements. He also insists that the ALJ failed to properly consider all of the relevant evidence. Finally, Mowbray seeks to have this Court consider evidence which was not submitted to either the ALJ or the Appeals Council. For the reasons set forth below, I reject each contention.

         1. Additional Evidence

         Mowbray submits numerous extra-record exhibits for this Court's consideration. My review of the ALJ's decision is limited to evidence that was before him / her. Therefore, pursuant to Sentence Four of § 405(g), I cannot look at post-decision evidence that was not first submitted to the ALJ. 42 U.S.C. § 405(g).

         If a plaintiff proffers evidence that was not previously presented to the ALJ, then a district court may remand pursuant to Sentence Six of 42 U.S.C. § 405(g), but only when the evidence is new and material and supported by a demonstration of good cause for not having submitted the evidence before the decision of the ALJ. See Matthews v. Apfel, 239 F.3d 589, 591-93 (3d Cir. 2001) (Sentence Six review), citing, Szubak v. Sec'y. of Health and Human Services, 745 F.2d 831, 833 (3d Cir. 1984). In Szubak, the Third Circuit Court explained:

As amended in 1980, § 405(g) now requires that to support a “new evidence” remand, the evidence must first be “new” and not merely cumulative of what is already in the record. Second, the evidence must be “material;” it must be relevant and probative. Beyond that the materiality standard requires that there be a reasonable probability that the new evidence would have changed the outcome of the Secretary's determination. An implicit materiality requirement is that the new evidence relate to the time period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition. Finally, the claimant must demonstrate good cause for not having incorporated the new evidence into the administrative record.

Szubak v. Sec. of Health and Human Services, 745 F.2d 831, 833 (3d Cir. 1984) (citations omitted). All three requirements must be satisfied to justify a remand. Id. Here, Mowbray has not offered any argument as to how the exhibits he has proffered are new or material, or that good cause exists for not having incorporated them into the administrative record. Ordinarily, the failure to develop such an argument would be fatal to his position. However, given his status as a pro se litigant, I will take the time to examine the issues more closely.

         Evidence is “new” if it was “not in existence or available to the claimant at the time of the administrative proceeding.” See Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). After careful review of the proffered exhibits, I note that many of them existed at the time of the administrative proceeding. Mowbray protectively filed an application for SSI on October 27, 2014 and the ALJ did not hold the hearing until February 27, 2017. (R. 16) Exhibits G1, G2, G3, G4, G5, G9, G11, and G12 all consist of materials that were available prior to the date of the hearing. As such they were not “new” or otherwise “unavailable.”[1]

         The exhibits fail to pass the “materiality” test as well. The evidence must be “relevant and probative” and there must “be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination.” Szubak, 745 F.2d at 833. With respect to those exhibits which are arguably “new” or which were otherwise “unavailable, ” I find that they are neither relevant nor probative. The numerous newspaper articles were written after the ALJ issued his decision in this case. See G15, G16, G17. As such, they are not relevant to the time period at issue. Further, while they may be an indictment of the police department they do not speak to the issue of Mowbray's impairments or limitations arising therefrom. The December 20, 2017 letter from Dr. Burke regarding the status of Mowbray's knee also lacks relevance because it was authored after the ALJ issued his decision in this case. See G10. Moreover, the letter does not speak to any limitations stemming from Mowbray's degenerative arthritis of the knee. In fact, Dr. Burke comments that Mowbray's “prognosis is good.” See G10. The April 19, 2017 “After Visit Summary from UPMC Mercy” is not probative either. See G8. The Summary reveals only that Mowbray was diagnosed with an acute headache and was given a prescription for Flexeril to be taken as needed for ...


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