United States District Court, W.D. Pennsylvania
OPINION AND ORDER
DONETTA W. AMBROSE UNITED STATES SENIOR DISTRICT JUDGE
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.
Standard of Review
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
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).
The ALJ's Decision
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.
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
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).
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
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.
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
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