SIMONE v. COMMISSIONER OF SOCIAL SECURITY

Filing 25

MEMORANDUM AND ORDER; Plaintiff's appeal is administratively terminated without prejudice; within thirty (30) days from the date of this Order, Plaintiff shall submit a supplemental brief. Plaintiff's supplemental brief should show that t here is good cause for his failure to incorporate his proffered new evidence, (ECF No. 16 at Al-Al3), into the record in the prior proceeding before the ALJ; Defendant is granted leave to file a response within fifteen (15) days from Plaintiff's submission of his supplemental brief; and the Clerk shall close this matter; etc. Signed by Judge Claire C. Cecchi on 11/28/2018. (sms)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HARRY T. SIMONE,

Civil Action No.: 17-7063 (CCC)

Plaintiff,
V.

MEMORANDOM AND ORDER

NANCY A. BERRYHILL,
Defendant.
CECCHI, District Judge.

Before the Court is Plaintiff Harry T. Simone’s appeal seeking review of a final
determination by Defendant Nancy A. Berryhill, as Acting Commissioner of Social Security,
denying his application for a period of disability and Disability Insurance Benefits (“DIB”)
pursuant to Title II of the Social Security Act (“SSA”). It appearing that:
1. Plaintiff, an adult male, was born on October 29, 1966. (Tr. at 141).’ Plaintiff attended a
computer trade school, (Id. at 39), and has previously worked as a computer programmer
and consultant, (id at 41-44). In February 2010, Plaintiff was incarcerated and ceased to
work. (Id at 39). Plaintiff testified that during his incarceration, the mattresses on which
he slept caused back pain, (Id. at 40), which lead to his disability beginning in June 2012,
(Id. at 45). Plaintiff also testified that his back pain prevented him from either standing or
sitting for extended periods of time. (Id at 46). Additionally, Plaintiff testified that during
approximately the same time that his back pain became severe, he began to experience foot

‘“Tr.” refers to the certified record of the administrative proceedings. (ECF No. 10).
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pain near the situs of an ankle fracture that he suffered in February 1989. (Id.). Further,
Plaintiff has described tendinitis in his left elbow. (Id. at 48).
2. On June 27, 2014, Plaintiff applied for disability benefits as a result of his ongoing back
and ankle pain. (Id. at 141-42). On September 22, 2014, Plaintiffs application was
initially denied. (Id. at 68). On November 21, 2014, the application was once again denied
on reconsideration.

(Id. at 76-77).

Plaintiff requested an AU

hearing, which was

conducted on December 12, 2016. (Id. at 31-59). On January 25, 2017, the AU issued his
opinion concluding that Plaintiff was not disabled within the meaning of Sections 216(1)
and 223(d) of the SSA. (Id. at 19-26). On November 18, 2015, after submitting additional
evidence, Plaintiff sought review by the Appeals Council. (Id. at 200-2 04). The Appeals
Council denied review on May 4, 2017. (Id. at 1-4). Plaintiff instituted this action seeking
review of the AU decision on September 13, 2017.
3. The Court has reviewed the AU decision. The AU found that Plaintiff most recently met
the insured status requirements of the SSA on June 30, 2015, that Plaintiff had not engaged
in substantial gainful activity since the alleged onset date of June 20, 2012. (Tr. at 21), and
that Plaintiff suffered from the following severe impairments: status post left ankle fracture
and degenerative changes of the lumbar spine with disk protrusions at L 1-5. (Id.).
4. The AU further found that Plaintiffs impairments were not, either individually or in
combination, the medical equivalent of any of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id. at 21-22). The AU then concluded that Plaintiff retained the
Residual Functional Capacity (“RfC”) to perform sedentary work, with the ability to
change position at intervals, through his most recent insured date. (Id. at 22-24).

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5. further, the AU concluded that Plaintiff was capable of performing his past relevant work
as a director of information technology because such work did not require the performance
of activities precluded by the Plaintiff’s RFC. (Id. at 24-25).
6. Accordingly, the AU concluded that Plaintiff was not disabled at any point between the
onset date and Plaintiffs most recent date insured. (Id. at 25-26).
7. Among other reasons, Plaintiff argues that the AU’s opinion should be vacated because
the Appeals Council failed to consider new medical evidence he had provided, and thereby
deprived him of his opportunity for proper administrative review. (ECF No. 16 at 3-8).
8. “No statutory authority (the source of the district court’s review) authorizes the court to
review the Appeals Council decision to deny review.” Matthews v. Apfel, 239 F.3d 589,

594 (3d Cir. 2001). However, given Plaintiff’s pro se status, the Court interprets his
argument as requesting that the Court should remand to the Commissioner for
consideration of new evidence.
9. A district court may remand to the Commissioner when it “learns of evidence not in
existence or available to the claimant at the time of the administrative proceeding,” Sullivan
v. finkeistein, 496 U.S. 617, 626 (1990), if such evidence “is material and.

.

.

there is good

cause for the failure to incorporate such evidence into the record in the prior proceeding,”
42 U.S.C.

§ 405(g).

10. Plaintiff has submitted additional evidence not before the AU. Among other things,
Plaintiff has presented the medical opinion of Scott Reisler, M.D., concluding that
Plaintiff’s pain limited his ability to participate in gainful employment and that such
limitations were expected to last longer than one year. (ECF No. 16 at A4-A5).

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11. Dr. Reisler’s opinion is at least arguably material. However, Plaintiff has not sufficiently
addressed whether there is good cause as to why such evidence, which dates from mid2015, was not furnished to the AU prior to the December 2016 hearing. Indeed, Plaintiff
offers no explanation for the absence of such materials from the record below. Instead,
Plaintiff avers that he is not required to show good cause for their absence because, at the
time that he requested review by the Appeals Council, “the rules for review allowed the
plaintiff to submit any additional evidence, without the requirement of good cause as to
why it was not submitted prior.” (ECF No. 16 at 3).
12. Presumably, Plaintiff refers to the regulations of 20 C.F.R.

§ 404.970, which govern review

of an AU decision by the Appeals Council. Such regulations were amended as of January
17, 2017 and now provide for a good cause requirement. Nevertheless, “it is the Social
Security Act and not the regulations that governs the standards for judicial review.”
Matthews, 239 F.3d at 594. Under the SSA, the Court may not remand for consideration
of new evidence without a showing of good cause. See Id. (“[T]he Act gives the district
court authority to remand the case to the Commissioner, but only if the claimant has shown
good cause why such new and material evidence was not presented to the AU.”).
13. Given Plaintiffs pro se status and the Court’s need for further clarification, the Court will
allow Plaintiff a further opportunity to show good cause why the new evidence was absent
from the record before the AU.
14. The Court will administratively terminate this action without prejudice pending submission
of Plaintiffs supplemental brief.
Accordingly,

IT IS on this 2-day of November 201$:

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ORDERED that Plaintiffs appeal is administratively terminated without prejudice; and it
is further
ORDERED that within thirty (30) days from the date of this Order, Plaintiff shall submit
a supplemental brief. Plaintiffs supplemental brief should show that there is good cause for his
failure to incorporate his proffered new evidence, (ECF No. 16 at AlAl 3), into the record in the
prior proceeding before the ALl; and it is further
ORDERED that Defendant is granted leave to file a response within fifteen (15) days from
Plaintiffs submission of his supplemental brief; and it is further
ORDERED that the Clerk of the Court shall close this matter.

(
CLAIRE C. CECCHI, U.S.D.J.

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