GONZALEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION fld. Signed by Judge Esther Salas on 12/29/15. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

AUGUSTIN GONZALEZ,
Plaintiff,
v.

Civil Action No. 14-6441 (ES)
OPINION

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

SALAS, DISTRICT JUDGE
I.

INTRODUCTION
Before the Court is an appeal filed by Augustin Gonzalez seeking review of the

Administrative Law Judge’s decision denying his applications for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income (“SSI”) under Title II and Title XVI of the Social
Security Act (“SSA”), respectively. This motion has been decided upon the written submissions
of the parties pursuant to Federal Rule of Civil Procedure 78(b). The Court has subject matter
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reason set forth herein, the
Court VACATES the ALJ’s decision and REMANDS for further administrative proceedings
consistent with this Opinion.
II.

FACTUAL AND PROCEDURAL BACKGROUND
On November 16, 2010, Plaintiff filed a Title II claim for DIB and a Title XVI application

for SSI claiming disability as of December 8, 2008, based on his depression, hepatitis, lumbar

discogenic disease, diabetes, and obesity. (D.E. No. 5-2, Administrative Record (“Tr.”) at 25, 27).
The claim was initially denied on February 25, 2011, and denied again upon reconsideration on
October 13, 2011. (Id. at 21). Following the first two denials, Plaintiff requested a hearing before
an ALJ for de novo review. (Id.). His case was heard before ALJ Richard L. De Steno on
November 20, 2012. (Id.).
Following the negative determination, Plaintiff filed a timely appeal of the decision to the
Appeals Council, which denied the request for review on August 25, 2014. (Id. at 4). Plaintiff
made a timely appeal of the Appeals Council’s opinion on October 17, 2014, filing his Complaint
with this Court. (D.E. No. 1). Defendant filed an answer on December 9, 2014. (D.E. No. 4).
Plaintiff filed a moving brief on March 23, 2015. (See D.E. No. 13, Memorandum of Law on
Behalf of the Plaintiff (“Pl. Mov. Br.”)). Defendant filed a brief in opposition on March 23, 2015.
(D.E. No. 14, Defendant’s Brief Pursuant to Local Civil Rule 9.1 (“Def. Opp. Br.”)). Plaintiff
submitted a Reply Brief on March 30, 2015. (D.E. No. 15, Plaintiff’s Reply Brief (“Pl. Rep. Br.”)).
The case is ripe for determination.
III.

LEGAL STANDARD
A. Standard of Awarding Benefits
Pursuant to the SSA, to receive DIB or SSI under Titles II and XVI, a plaintiff must show

that he is disabled as defined by the Act. See 42 U.S.C. §§ 423 (Title II), 1382 (Title XVI).
Additionally, claimants seeking DIB must satisfy the insured status requirements set forth in 42
U.S.C. § 423(c), while those seeking SSI must fall within the income and resource limits set forth
in 42 U.S.C. §§ 1382a and 1382b.
An individual is deemed disabled by demonstrating that he is unable to “engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment

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which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A) (regarding DIB),
1382c(a)(3)(A) (regarding SSI). Thus, the plaintiff’s physical or mental impairments must be “of
such severity that he 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)(2)(A). Impairments that affect a plaintiff’s “ability
to meet the strength demands of jobs” with respect to “sitting, standing, walking, lifting, carrying,
pushing, and pulling” are considered exertional limitations. 20 C.F.R. § 404.1569a; see also Sykes
v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). All other impairments are considered non-exertional.
Id. Decisions regarding disability are made individually based on evidence produced at a hearing.
Id. at 262 (citing Heckler v. Campbell, 461 U.S. 458, 467 (1983)). Congress has defined a physical
or mental impairment as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
The SSA proscribes a five-step sequential evaluation to determine whether a plaintiff is
disabled. 20 C.F.R. § 416.920. The evaluation will continue through each step unless it can be
determined at any point that the plaintiff is, or is not, disabled. 20 C.F.R. § 416.920(a)(4). The
claimant bears the burden of proof for the first four steps of the analysis. Poulous v. Comm’r of
Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007). The burden shifts to the Commissioner for the fifth step.
Id.
At step one, the plaintiff’s work activity is assessed, and he must demonstrate that he is not
engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). A plaintiff is engaging in
substantial gainful activity if he is doing significant physical or mental activities that are usually

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done for pay or profit. 20 C.F.R. §§ 416.972(a), (b). If the plaintiff is engaged in substantial
gainful activity, he will be found not disabled and the analysis will stop, regardless of the plaintiff’s
medical condition, age, education, or work experience. 20 C.F.R. § 416.920(b). If the plaintiff is
not engaging in substantial gainful activity, the analysis proceeds to the second step.
At step two, the plaintiff must show that he has a medically determinable “severe”
impairment or a combination of impairments that is “severe.” 20 C.F.R. § 416.920(a)(4)(ii). An
impairment is severe when it significantly limits a plaintiff’s physical or mental ability to perform
basic work activities. 20 C.F.R. § 416.920(c). An impairment is not severe when medical evidence
shows only a slight abnormality or minimal effect on an individual’s ability to work. See Leonardo
v. Comm’r of Soc. Sec., No. 10-1498, 2010 WL 4747173, at *4 (D.N.J. Nov. 16, 2010) (citation
omitted). If a plaintiff does not have a medically determinable severe impairment, he is not
disabled. 20 C.F.R. §§ 416.920(a)(4)(ii), (c). If the plaintiff has a severe impairment, the analysis
proceeds to the third step.
At step three, the ALJ must determine, based on the medical evidence, whether the
plaintiff’s impairment matches or is equivalent to an impairment listed in the Social Security
Regulations’ “Listings of Impairments” found in 20 C.F.R. § 404, Subpart P, Appendix 1. 1 See
20 C.F.R. § 416.920(a)(4)(iii). As the Third Circuit made clear in Burnett v. Commissioner of
Social Security, an ALJ has a “duty to investigate the facts and develop the arguments both for and
against granting benefits.” 220 F.3d 112, 120 n.2 (3d Cir. 2000) (internal quotation marks
omitted); see also id. at 119 (explaining that an ALJ must set forth the reasons for his decision.”).
An ALJ must “fully develop the record and explain his findings at step three.” Id. at 120.

1

This listing of impairments in Appendix 1 “describes, for each of the major body systems, impairments
that [are] severe enough to prevent an individual from doing any gainful activity, regardless of his or her
age, education, or work experience.” 20 C.F.R. § 404.1525(a).

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Furthermore, “[t]here is no way to review the ALJ’s decision [where] no reasons were given for
[the ALJ’s] conclusion that [the claimant’s] impairments in combination did not meet or equal an
Appendix 1 listing.” Torres v. Comm’r of Soc. Sec., 279 F. App’x 149, 152 (3d Cir. 2008).
When the plaintiff does not suffer from a listed impairment or an equivalent, the analysis
proceeds to step four. At step four, the ALJ must determine whether the plaintiff’s residual
functional capacity (“RFC”) enables him to perform his past relevant work.

20 C.F.R. §

416.920(a)(4)(iv). This step involves three sub-steps: (1) the ALJ must make specific findings of
facts as to the plaintiff’s RFC; (2) the ALJ must make findings regarding the physical and mental
demands of the plaintiff’s past relevant work; and (3) the ALJ must compare the RFC to the past
relevant work to determine whether the plaintiff has the capability to perform the past relevant
work. Burnett, 220 F.3d at 120. The SSA classifies RFC and past work by physical exertion
requirements ranging from “sedentary” to “very heavy” work. See id.; 20 C.F.R. § 404.1567. If
the plaintiff can perform his past work, the ALJ will find that he is not disabled. 20 C.F.R. §
416.920(f). If the plaintiff lacks the RFC to perform any work he has done in the past, the analysis
proceeds to the fifth and last step.
At step five, the Commissioner must show that, based on the plaintiff’s RFC and other
vocational factors, there is a significant amount of other work in the national economy that the
plaintiff can perform. 20 C.F.R. § 416.920(a)(4)(v). During this final step, the burden lies with
the government to show that the plaintiff is not disabled by demonstrating that there is other
substantial, gainful work that the plaintiff could perform, given her age, education, work
experience, and RFC. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005); Sykes, 228
F.3d at 263. If the Commissioner cannot show that there are other jobs for the plaintiff in the
national economy, then the plaintiff is disabled. 20 C.F.R. § 416.920(g)(1).

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B. Standard of Review
District court review of the Commissioner’s final decision is limited to ascertaining
whether the decision is supported by substantial evidence. 42 U.S.C. §§ 405(g) and 1383(c)(3);
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence is more than a “mere
scintilla” of evidence. It “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
If the Commissioner’s determination is supported by substantial evidence, the Court may
not set aside the decision, even if the Court “would have decided the factual inquiry differently.”
Fargnoli v. Masanari, 247 F.3d 34, 38 (3d Cir. 2001) (citing Hartranft, 181 F.3d at 360). Thus,
this Court is limited in its review in that it cannot “weigh the evidence or substitute its conclusions
for those of the fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).
IV.

ALJ De Steno’s Decision
ALJ De Steno found Gonzalez not disabled under the Social Security Act. (Tr. at 30). He

arrived at this conclusion after conducting the five-step evaluation process required by 20 C.F.R.
§§ 404.1520(a)(4) and 416.920(a)(4). (Id. at 23-26).
At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity
since the alleged onset date of December 8, 2008. (Id. at 23). At step two, the ALJ determined
that Plaintiff suffered from severe impairments involving diabetes and obesity. (Id.). The ALJ
observed that these impairments caused significant limitations in Plaintiff’s ability to perform one
or more basic work activities. (Id.). Further, the ALJ noted the existence of depression, lumbar
discogenic disease, and hepatitis C in Plaintiff’s medical records, but found these impairments to
be non-severe. (Id. at 24).

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At step three, the ALJ concluded that Gonzalez did not have an impairment or combination
of impairments that met or medically equaled any of the Listings. (Id. at 25-26). As to Gonzalez’s
physical impairments, the ALJ addressed Listing 9.00 (diabetes), and found that Plaintiff failed to
meet the criteria for this Listing. (Id.). The ALJ also considered Plaintiff’s obesity in accordance
with Social Security Ruling 02-1p.
At step four, the ALJ determined Gonzalez’s RFC. The ALJ found that Gonzalez had the
RFC for:
lifting and carrying objects weighing up to 50 pounds; frequently lifting and
carrying objects weighing up to 25 pounds; standing, walking, and sitting up to six
hours in an eight-hour day; pushing and pulling arm and leg controls; and the full
range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c). The
claimant has not had any external limitations.
(Id. at 26). In making this determination, the ALJ indicated that he “considered all symptoms and
the extent to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence.” (Id.). The ALJ noted that Plaintiff’s impairments could
reasonably be expected to cause some limited degree of his alleged symptoms, but found that
Gonzalez’s statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible, as they were inconsistent with the RFC assessment. (Tr. at
28). Based on this RFC, the ALJ found that Plaintiff was unable to perform any past relevant
work. (Id. at 29). 2
At step five, the ALJ found that there were a significant number of jobs in the national
economy that Plaintiff could perform. (Id.). Based upon his analysis of the entire record, the ALJ
determined that Plaintiff had a RFC for the full range of medium work, and considering his age,

2

Gonzalez’s past relevant work was as a general laborer, where he lifted and carried 100-150 pounds. (Id.).

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education, and work experience, concluded that Gonzalez was not “disabled” under sections 216(i)
and 223(d) of the Social Security Act. (Id. at 30).
V.

DISCUSSION
On appeal, Plaintiff argues that ALJ De Steno’s decision is not supported by substantial

evidence because (1) the ALJ relied upon evidence that was not in the record at the time of the
hearing, (Pl. Mov. Br. at 10); (2) the ALJ improperly rejected the evidence of consultative
psychologist Dr. Kim Arrington, (id. at 12); (3) the ALJ did not accord proper weight to the treating
physician, (id. at 13); and (4) new and material evidence warrants a remand, (id. at 15). The Court
addresses each of Plaintiff’s arguments below.
A. The ALJ’s Consideration of Evidence in the Supplemental Transcript
First, Plaintiff argues that the ALJ committed reversible error by relying on evidence from
the state agency psychologist that was allegedly not present in the record before the ALJ at the
time of the hearing. (Id. at 10). Plaintiff alleges this was a violation of 42 U.S.C. § 405(b)(1).
Section 405(b)(1) requires that an ALJ’s decision must be made “on the basis of evidence
adduced at the hearing.” Pursuant to § 405(b)(1), the ALJ may consider evidence received after
the initial oral hearing, but before the rendering of a final decision. Wallace v. Bowen, 869 F.2d
187, 193 (3d Cir. 1989). In such cases, however, “the ALJ must afford the claimant not only an
opportunity to comment and present evidence but also an opportunity to cross-examine the authors
of any post-hearing reports when such cross-examination is necessary to the full presentation of
the case, and must reopen the hearing for that purpose if requested.” Id.
Here, the Disability Determination Explanation forms (“DDE forms”) completed by the
State Agency psychologist were omitted from the certified transcript that was submitted to this
Court on November 25, 2014, and were submitted as a supplemental transcript on December 19,

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2014. (D.E. No. 8, Supplemental Transcript (“Supp. Tr.”)). As Plaintiff points out in his reply
brief, (D.E. No. 15), these DDE forms were not marked as exhibits or otherwise provided with
official identifiers such as those provided to each item of evidence in the initial administrative
transcript. 3 Indeed, while the ALJ’s administrative opinion generally cites to evidence in the
record by reference to an exhibit number, (see, e.g., Tr. at 24, 25, 27), the ALJ cites evidence in
the supplemental transcript only by name or description of the document in question, (see Tr. at
25). Taken together, this suggests to the Court that the DDE forms were not formally introduced
into the administrative record by the time of the oral hearing held before the ALJ on November
20, 2012.
As such, in order to consider the DDE forms, the ALJ was required to afford Plaintiff an
additional “opportunity to comment” on the post-hearing evidence, and “to cross-examine the
authors of any post-hearing reports when such cross-examination is necessary to the full
presentation of the case, and [the ALJ] must reopen the hearing for that purpose if requested.” See
Wallace, 869 F.2d at 193. While it may be the case that the findings contained in the DDE forms
nevertheless support the ALJ’s ultimate conclusion of non-disability, Plaintiff was not afforded an
opportunity to make his case to the contrary. Accordingly, the Court will remand the case back to
the ALJ to afford Plaintiff an opportunity to challenge the contents of the DDE forms. 4

3

For example, each item of evidence included in the initial administrative transcript is labelled Exhibit
Number 1A through 10F. (See D.E. No. 5-1, Court Transcript Index). No such label is provided for
individual items of evidence in the supplemental administrative transcript. (See D.E. No. 8-1. Supplemental
Court Transcript Index).
4
The Court notes that the late submission and absence of exhibit numbers on the DDE forms could also be
due to clerical errors on the part of Defendant in compiling the record. If this is the case, on remand, the
ALJ is instructed to show that the DDE forms were in fact part of the administrative record at the time of
the November 20, 2012 oral hearing.

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B. Whether the ALJ Properly Weighed the Consultative Psychologist’s Opinion
Plaintiff next argues that the ALJ erred by failing to credit the opinion of the Social Security
consultative psychologist Dr. Kim Arrington, who gave Plaintiff a Global Assessment of Function
(“GAF”) score of forty-five. 5 (Pl. Mov. Br. at 12).
As courts in this circuit have noted, a one-time GAF score does not represent a disability
or an inability to work. See, e.g., Gilroy v. Astrue, 351 F. App’x, 714, 716 (3d Cir. 2009) (finding
that one-time GAF score of forty-five does not require finding of disability); Ortiz v. Astrue, No.
10-03538, 2011 WL 5190450, at *15 (D.N.J. Oct. 28, 2011) (holding that “forty-five to fifty GAF
score is not determinative of whether [the claimant] is disabled”). Further, an ALJ may reject
subjective complaints where he “consider[s] the subjective pain and specif[ies] his reasons for
rejecting these claims and support[s] his conclusion with medical evidence in the record.” Matullo
v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).
Here, the ALJ rejected Dr. Arrington’s opinion, stating it was “based entirely on subjective
complaints” which were not supported by other evidence in the record. (Tr. at 25). For example,
Plaintiff reported to Dr. Arrington that he had been experiencing depression and anxiety-related
symptoms for the past year. (Id. at 280). However, the record shows that Plaintiff first reported
symptoms of depression to a treating physician, Dr. Ortiz, on October 4, 2010. (Id. at 181).
Moreover, on Gonzalez’s follow up appointment on November 15, 2010, Gonzalez reported that

5

A GAF score is a “numerical summary of a clinician’s judgment of the individual’s overall level of
functioning, taking into account social, psychological, and occupational functioning.” Diagnostic and
Statistical Manual of Mental Disorders 32 (4th ed. 2000). A GAF score of forty-one to fifty indicates that
in the opinion of the evaluator the patient has: Serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job). Id.

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his medication was helping with the depression, and Dr. Ortiz noted that Gonzalez was alert and
oriented, and reported no finding of depression or anxiety. (Id. at 179).
In addition, a District Office Representative noted in the Field Office Disability Report that
Plaintiff had no limitations in understanding, concentrating, and coherency during a December 2,
2010 interview. (Id. at 129). As previously stated, the ALJ is only to afford controlling weight to
a physician’s opinion when the medical evidence is not inconsistent with other substantial evidence
in the record. See Griffies v. Astrue, 855 F.Supp. 2d 257, 270 (D. Del. 2012). In this instance, a
one-time GAF score provided by a non-examining physician cannot outweigh the substantial
inconsistent evidence in Plaintiff’s medical records during the pertinent time period. See Gilroy,
351 F. App’x, at 716. Based on the above analysis, the Court finds that the ALJ’s decision to
afford little weight to Dr. Arrington’s GAF score was supported by substantial evidence.
C. Whether the ALJ Gave Appropriate Deference to the Treating Physician’s Opinion
Plaintiff also argues that the ALJ improperly rejected the opinion of Plaintiff’s treating
physician, Dr. Montilus, with respect to Plaintiff’s lower back pain and psychiatric disorders. (Pl.
Mov. Br. at 13-14). An ALJ is to afford binding weight to a plaintiff’s treating physician’s opinion
only when it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and [the opinions are] not inconsistent with . . . other substantial evidence.” Griffies,
855 F.Supp. 2d at 270 (quoting Fargnoli, 247 F.3d at 41). The more a medical source presents
relevant evidence to support an opinion, the more weight that opinion will be afforded. 20 C.F.R.
§§ 404.1527(d)(3), 416.927(d)(3). In contrast, form reports in which a physician’s only obligation
is to check a box or fill in a blank are weak evidence at best. Mason v. Shalala, 994 F.2d 1058,
1065 (3d Cir. 1993).

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Here, Dr. Montilus stated that Gonzalez was limited to lifting and carrying less than ten
pounds frequently, ten pounds occasionally, and twenty pounds rarely; sitting for thirty minutes at
a time; and standing ten minutes at a time. Dr. Montilus also opined that claimant was unsuitable
for any structured work environment. (Tr. at 451-55). The ALJ did not accord significant weight
to Dr. Montilus’s assessment, stating “it is a scratch sheet of no probative evidentiary value and
its assertion of extreme functional limitations is not explained by reference to objective medical
evidence.” (Id. at 29). Further, the ALJ found that Dr. Montilus’s RFC was inconsistent with the
medical evidence. (Id. at 24). The ALJ noted that:
While a February 2011 consultative examination revealed a decreased range of
motion upon forward flexion of the lumbar spine, secondary to body habitus, he
had no other physical limitations that would preclude work related activity. He
walked with a normal unassisted gait and he had a full range of motion in the
bilateral upper extremities and bilateral lower extremities . . . consequently records
. . . indicated that a musculoskeletal examination was normal on repeat
examination.
(Id. at 24). Accordingly, Dr. Montilus’s opinion was appropriately afforded less weight under 20
C.F.R. § 416.927. See Mason, 994 F.2d at 1065. Thus, the ALJ properly rejected Dr. Montilus’s
opinion.
D. Whether the ALJ Should Consider Plaintiff’s Additional Evidence
Finally, Plaintiff argues that this case must be remanded under 42 U.S.C. § 405(g) to
consider psychiatric reports which Plaintiff submitted after the ALJ had rendered his
administrative decision. (Pl. Mov. Br. at 15). A district court may remand the case specifically to
consider new and material evidence when it is supported by a demonstration of good cause for not
having submitted the evidence before the ALJ’s decision. See Matthews v. Apfel, 239 F.3d 589,
591-93 (3d Cir. 2001). As the Third Circuit has explained,
[Section] 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
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record. Second, the evidence must be “material;” it must be relevant and probative.
Beyond that, the materiality standard requires that there be a reasonable possibility
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 the subsequent deterioration of the previously nondisabling condition. Finally the claimant must demonstrate good cause for not
having incorporated the new evidence into the administrative record.
Szubak v. Sec’y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). Evidence is “new” only when it was
“not in existence or available to the claimant at the time of the administrative proceeding.”
Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990); see also Rodriguez v. Astrue, No. 12-5573, 2013
WL 1908895, at *5 (E.D. Pa. Apr. 17, 2013) report and recommendation adopted, No. 12-5573,
2013 WL 1908983 (E.D. Pa. May 8, 2013) (“If new evidence was available at the time of the ALJ’s
proceeding, remand is unavailable because it encourages disability claimants to present all relevant
evidence at the initial hearing.”).
Evidence is “material” when there is a “reasonable possibility that the new evidence would
have changed the outcome of the Secretary’s determination.” Szubak, 745 F.2d at 833. Moreover,
the good cause requirement comports with notions of public policy by preventing a claimant from
“withhold[ing] medical reports, or refrain[ing] from introducing all relevant evidence, with the
idea of obtaining another bite of the apple if the Secretary decides that the claimant is not disabled.”
Id. (internal quotation marks omitted).
After the December 2012 administrative decision had been rendered, Plaintiff submitted a
series of medical reports dated July 24, 2012 through November 20, 2012, which indicated that
Plaintiff was under psychiatric treatment at the University Hospital Mental Health Clinic at the
time Plaintiff’s disability application was being considered, and provided additional evidence of
Plaintiff’s mental impairments. (See D.E. No. 13-1). However, the records clearly indicate that
they were created prior to the ALJ’s December 2012 decision. (See id.). Although Plaintiff argues
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that he was unable to present the ALJ with the reports because “he was under active psychiatric
treatment at the University Hospital Mental Health Clinic at the time of the administrative
hearing,” Plaintiff also indicates that he was represented at the hearing and provides no reason why
the evidence was “unavailable” to his representative at that time. (See Pl. Mov. Br. at 15). Plaintiff
thus fails to sufficiently show that the evidence was “new” or that it was unavailable at the time of
the administrative hearing. Sullivan, 496 U.S. at 626. Accordingly, on remand the ALJ need not
consider this additional evidence presented by Plaintiff.
V.

CONCLUSION
For the foregoing reasons, the Court remands the case to ALJ De Steno for further

consideration consistent with this Opinion. An appropriate Order accompanies this Opinion.

s/Esther Salas
Esther Salas, U.S.D.J.

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