Jacobs v. Berryhill

Filing 11

MEMORANDUM (Order to follow as separate docket entry)For the reasons discussed above, the Court concludes Plaintiffs appeal is properly denied. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 9/27/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANDREA M. JACOBS,

:
:CIVIL ACTION NO. 3:17-cv-271
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
NANCY A. BERRYHILL,
:
Acting Commissioner of
:
Social Security,
:
:
Defendant.
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Plaintiff’s appeal from the
Commissioner’s denial of Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act and Supplemental Security
Income (“SSI”) under Title XVI.

(Doc. 1.)

Plaintiff filed

applications for benefits on June 3, 2013, alleging a disability
onset date of March 19, 2013, which she later amended to January
12, 2012.

(R. 97.)

After she appealed the initial denial of the

claims, a hearing was held on May 1, 2015, and Administrative Law
Judge (“ALJ”) Patrick S. Cutter issued his Decision on May 28,
2015, concluding that Plaintiff had not been under a disability
during the relevant time period.

(R. 97, 106-07.)

Plaintiff

requested review of the ALJ’s decision which the Appeals Council
denied on October 13, 2016.

(R. 1-7, 91-93.)

In doing so, the

ALJ’s decision became the decision of the Acting Commissioner.1

1

The Notice of Appeals Council Action stated that additional
evidence was considered and did not provide a basis for changing

(R. 1.)
Plaintiff filed this action on February 14, 2017.

(Doc. 1.)

She asserts in her supporting brief that the Acting Commissioner’s
determination is error for the following reasons: 1) the ALJ failed
to accord proper weight to Plaintiff’s testimony regarding the
intensity, persistence, and limiting effects of her symptoms,
particularly the constant nature of her pain and her need to often
elevate her feet; 2) the ALJ failed to accord proper weight to
Plaintiff’s treating providers; 3) the ALJ failed to consider posthearing medical evidence from Umar Aydogan, M.D., dated May 12,
2015; and 4) the Appeals Council failed to consider post-hearing
medical evidence including Dr. Aydogan’s May 12, 2015, evaluation
and subsequent treatment notes.

(Doc. 8-1 at 3.)

After careful

review of the record and the parties’ filings, the Court concludes
this appeal is properly denied.
I. Background
Plaintiff was born on August 8, 1984, and was twenty-seven
years old on the alleged disability onset date.

(R. 105.)

She has

a high school education and past relevant work as a receptionist,

the ALJ’s decision. (R. 2.) The Notice specifically identified
evidence dated May 8, 2015, through May 11, 2015, from Milton S.
Hershey Medical Center which is a copy of Exhibit 12F (R. 663-68)
and evidence dated from June 30, 2015, through October 8, 2015.
(R. 2.) The Notice explained that the June 30th through October 8th
evidence was new information relevant to a later time in that the
ALJ issued his decision on May 28, 2015, and if the claimant wanted
consideration of whether she was disabled after May 28, 2015, she
needed to apply again. (Id.)
2

dispatcher, waiter, and cashier II.
A.

(Id.)

Medical Evidence
As it is Plaintiff’s burden to prove disability, the Court

focuses on the evidence of record cited by Plaintiff in support of
her arguments.
Plaintiff avers that her testimony and medical records show
that she was diagnosed with toxic mold exposure in 2010.
at 2.)

(Doc. 8-1

As a result, she was treated with “massive doses of an oral

steroid, Prednisone” which “has caused crippling dysfunction to her
bone structure.”

(Id.)

In support of her assertion, Plaintiff cites four record pages
which were before the ALJ–-R. 527, 529, 533, 545.
see also Doc. 10 at 2.)

(Doc. 8-1 at 2;

Chronologically, the first of these is

from Orthopedic Institute of Pennsylvania where Plaintiff was
treated on May 20, 2013, by Kathryn Mueller, PA-C, for pain in her
left ankle.

(R. 529.)

Plaintiff reported that she had a history

of avascular necrosis secondary to long term steroid use because of
a previous medical condition.

(Id.)

She reported that she had

been having problems with her ankle and felt like she had broken it
over the weekend and she was having pain and swelling in that area.
(Id.)

Ms. Mueller noted that Plaintiff had bilateral total knee

replacements related to the avascular necrosis.

(Id.)

Physical

examination showed that Plaintiff had pain deep in the ankle joint
in the mid section, she had no medial or lateral tenderness, and
3

the Achilles was intact.

(Id.)

X-rays showed an abnormality in

the dome of the talus and some flattening as well as what appeared
to be some avascular or osteonecrosis.

(Id.)

Ms. Mueller

determined that MRI was advisable to better delineate the problem.
(Id.)

She provided Vicodin for what was described as “a fair

amount of especially night pain” and she was given a “short Vectra
boot.”

(Id.)

Ms. Mueller noted that the plan of treatment was

reviewed by Dr. Frankeny.

(Id.)

MRI of the left ankle was done at Orthopedic Institute of
Pennsylvania (“OIP”) on May 23, 2013. (R. 533.)

The radiology

report indicated that there was a small ankle joint effusion,
evidence of prior avascular necrosis involving the medial one half
of the talar dome, a very small focus of T2 prolongation along the
anterior edge of the focus of AVN, advanced chondrosis overlying
the focus of AVN in the talar dome, a small os trigonum, and a
small subchondral cyst in the anterior aspect of the calcaneus
flanking the calcaneal cuboid joint.

(Id.)

On June 10, 2013, Plaintiff saw Michael Werner, M.D., of the
Orthopedic Institute who noted that Plaintiff had severe AVN to her
left talus.

(R. 527.)

He recorded that Plaintiff had a history of

severe AVN to bilateral knees necessitating a total knee
replacement for steroid induced osteonecrosis from previous
aspergillosis lung infection but she was off steroids at the time.
(Id.)

Dr. Werner noted that the pain in Plaintiff’s ankles was

4

worse left than right and it had been going on for years but had
been worse the previous several months.

(Id.)

She rated the pain

as 9/10 over the preceding two years with sharp pain around her
ankle that radiated to the anterior arch.

(Id.)

Dr. Werner’s

physical examination showed that there was good range of motion and
strength to the ankle, noting that “[i]t appears the more she is on
it the deep ache happens.”

(Id.)

He noted that the ligaments were

stable, external rotation test was negative, there was no
synovitis, pulses and sensation were intact, and she had similar
problems in the right ankle but much milder.
diagnosed AVN of the left ankle.

(Id.)

(Id.)

Dr. Werner

His proposed plan began

with the statement “[n]o easy answers here.”

(Id.)

He believed

that fusion was a good option but Plaintiff was adamantly against
it.

(Id.)

Dr. Werner explained that Plaintiff was not a candidate

for a total ankle replacement and she was willing to proceed with
osteocartilaginous allograft but he would first send her to an
endocrinologist for further evaluation.

(Id.)

He commented that

Plaintiff had not worked in two years and the goal of surgery
“apparently is not to get her back to work but to get her more
comfortable.”

(Id.)

Dr. Werner performed surgery on July 12, 2013.

(R. 545.)

Following the “[l]eft medial malleolar osteotomy, ankle arthrotomy,
synovectomy, curettage and bone grafting with allograft
osteocartilaginous plugs talus, 11 mm and 7 mm plugs,” Dr. Werner
5

noted there were no complications and Plaintiff went to post-op in
stable condition.

(Id.)

Additional medical evidence central to the Court’s analysis
will be set out in the relevant discussion below.
B.

Testimony
Plaintiff points to her May 1, 2015, hearing testimony that

she continued to have severe pain and discomfort in her knees and
ankles (most particularly in her left ankle), her pain caused
marked restrictions in her external activities as well as problems
with prolonged sitting, walking, or standing, and the only relief
she experienced was when she was lying down.

(Doc. 8-1 at 2

(citing R. 118, 119, 129).)
C.

ALJ Decision
In his May 28, 2015, Decision, ALJ Cutter determined that

Plaintiff had the severe impairments of left ankle arthritis,
status post medial malleolus osteotomy and costocartilage plugs,
right ankle pain, status post bilateral knee replacements, and a
history of asthma and bronchopulmonary aspergillosis.

(R. 99.)

He

concluded that her impairments, considered alone and in
combination, did not meet or equal a listed impairment.

(R. 100.)

ALJ Cutter found that Plaintiff had the residual functional
capacity (“RFC”) for light work with limitations: she could stand
occasionally and walk occasionally; she could sit frequently; she
was not able to climb, kneel, crouch, or crawl; she was able to

6

balance and stoop occasionally; ans she was unable to tolerate any
exposure to dust, fumes, gases, temperature extremes, or humidity.
(R. 100.)

With this RFC, he concluded Plaintiff could not do her

past relevant work but she was able to perform jobs which were
available in significant numbers in the national economy.
06.)

(R. 105-

Therefore, ALJ Cutter found that Plaintiff had not been under

a disability as defined in the Social Security Act from January 10,
2012, through the date of the decision, May 28, 2015.

(R. 106-07.)

Other relevant portions of the ALJ’s Decision will be
referenced in the Discussion section of this Memorandum.
II. Disability Determination Process
The Commissioner is required to use a five-step analysis to
determine whether a claimant is disabled.2

It is necessary for the

2

“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment 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 12 months . . . .” 42 U.S.C.
§ 423(d)(1)(A). The Act further provides that an individual is
disabled
only if his physical or mental impairment or
impairments are 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, regardless of whether such
work exists in the immediate area in which he
lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
7

Commissioner to ascertain: 1) whether the applicant is engaged in a
substantial activity; 2) whether the applicant is severely
impaired; 3) whether the impairment matches or is equal to the
requirements of one of the listed impairments, whereby he qualifies
for benefits without further inquiry; 4) whether the claimant can
perform his past work; 5) whether the claimant’s impairment
together with his age, education, and past work experiences
preclude him from doing any other sort of work.

20 C.F.R. §§

404.1520(b)-(g), 416.920(b)-(g); see Sullivan v. Zebley, 493 U.S.
521, 110 S. Ct. 885, 888-89 (1990).
If the impairments do not meet or equal a listed impairment,
the ALJ makes a finding about the claimant’s residual functional
capacity based on all the relevant medical evidence and other
evidence in the case record.

20 C.F.R. § 404.1520(e); 416.920(e).

The residual functional capacity assessment is then used at the
fourth and fifth steps of the evaluation process.

Id.

The disability determination involves shifting burdens of
proof.

The initial burden rests with the claimant to demonstrate

that he or she is unable to engage in his or her past relevant
work.

If the claimant satisfies this burden, then the Commissioner

must show that jobs exist in the national economy that a person
with the claimant’s abilities, age, education, and work experience
can perform.

Mason v. Shalala, 993 F.2d 1058, 1064 (3d Cir. 1993).

As set out above, the instant decision was decided at step

8

five of the sequential evaluation process when the ALJ found that
Plaintiff could perform jobs that existed in significant numbers in
the national economy.

(R. 105-06.)
III. Standard of Review

This Court’s review of the Commissioner’s final decision is
limited to determining whether there is substantial evidence to
support the Commissioner’s decision.

42 U.S.C. § 405(g); Hartranft

v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).
means “more than a mere scintilla.

Substantial 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); see

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

The Third

Circuit Court of Appeals further explained this standard in Kent v.
Schweiker, 710 F.2d 110 (3d Cir. 1983).
This oft-cited language is not . . . a
talismanic or self-executing formula for
adjudication; rather, our decisions make
clear that determination of the existence vel
non of substantial evidence is not merely a
quantitative exercise. 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)–-or if
it really constitutes not evidence but mere
conclusion. See [Cotter, 642 F.2d] at 706
(“‘Substantial evidence’ can only be
considered as supporting evidence in
relationship to all the other evidence in the
record.”) (footnote omitted). The search for
9

substantial evidence is thus a qualitative
exercise without which our review of social
security disability cases ceases to be merely
deferential and becomes instead a sham.
Kent, 710 F.2d at 114.
This guidance makes clear it is necessary for the ALJ to
analyze all probative evidence and set out the reasons for his
decision.

Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 119-20 (3d

Cir. 2000) (citations omitted).

If he has not done so and has not

sufficiently explained the weight given to all probative exhibits,
“to say that [the] decision is supported by substantial evidence
approaches an abdication of the court’s duty to scrutinize the
record as a whole to determine whether the conclusions reached are
rational.”
1979).

Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.

In Cotter, the Circuit Court clarified that the ALJ must

not only state the evidence considered which supports the result
but also indicate what evidence was rejected: “Since it is apparent
that the ALJ cannot reject evidence for no reason or the wrong
reason, an explanation from the ALJ of the reason why probative
evidence has been rejected is required so that a reviewing court
can determine whether the reasons for rejection were improper.”
Cotter, 642 F.2d at 706-07.

However, the ALJ need not undertake an

exhaustive discussion of all the evidence.

See, e.g., Knepp v.

Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
A reviewing court may not set aside the Commissioner’s final
decision if it is supported by substantial evidence, even if the
10

court would have reached different factual conclusions.

Hartranft,

181 F.3d at 360 (citing Monsour Medical Center v. Heckler, 806 F.2d
1185, 1190-91 (3d Cir. 1986); 42 U.S.C. § 405(g) (“[t]he findings
of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . .”).

“However,

even if the Secretary’s factual findings are supported by
substantial evidence, [a court] may review whether the Secretary,
in making his findings, applied the correct legal standards to the
facts presented.”

Friedberg v. Schweiker, 721 F.2d 445, 447 (3d

Cir. 1983) (internal quotation omitted).

Where a claimed error

would not affect the outcome of a case, remand is not required.
Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).

Finally,

an ALJ’s decision can only be reviewed by a court based on the
evidence that was before the ALJ at the time he or she made his or
her decision.

Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001).
IV. Discussion

Plaintiff asserts that the Acting Commissioner’s determination
is error for the following reasons: 1) the ALJ failed to accord
proper weight to Plaintiff’s testimony regarding the intensity,
persistence, and limiting effects of her symptoms, particularly the
constant nature of her pain and her need to often elevate her feet;
2) the ALJ failed to accord proper weight to Plaintiff’s treating
providers; 3) the ALJ failed to consider post-hearing medical
evidence from Umar Aydogan, M.D., dated May 12, 2015; and 4) the
11

Appeals Council failed to consider post-hearing medical evidence
including Dr. Aydogan’s May 12, 2015, evaluation and subsequent
treatment notes.
A.

(Doc. 8-1 at 3.)

Credibility
Plaintiff’s assertion that the ALJ failed to accord proper

weight to her testimony regarding the intensity, persistence, and
limiting effects of her symptoms, particularly the constant nature
of her pain and her need to often elevate her feet is a claim that
ALJ Cutter erred in his credibility determination.

(See Doc. 8-1

at 4.)
The The Third Circuit Court of Appeals has made clear that a
reviewing court is to defer to the ALJ’s assessment of credibility.
See, e.g., Zirnsak v. Colvin, 777 F.3d 607, 612 (3d Cir. 2014).
Zirsak cited Diaz v. Comm’r, 577 F.3d 500, 506 (3d Cir. 2009), for
the proposition that “[i]n determining whether there is substantial
evidence to support and administrative law judge’s decision, we owe
deference to his evaluation of the evidence [and] assessment of the
credibility of witnesses.”

777 F.3d at 612.

Zirsak also made

clear that “the ALJ must specifically identify and explain what
evidence he found not credible and why he found it not credible.”
Id. (citing Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994)).
Here ALJ Cutter provided specific reasons for finding
Plaintiff not fully credible.

(R. 104.)

Plaintiff points to only

one instance in which the ALJ mischaracterized her testimony: he

12

stated that “[s]he testified that she elevates her leg while
sleeping and for thirty minutes during the day” where she said she
had to prop her legs up throughout the day.
R. 101, 129).)

(Doc. 8-1 at 4 (citing

At the hearing, Plaintiff testified that “every

night while I’m sleeping I have it elevated.

And I, during the

day, will often lay down and prop it up for at least a half-hour.”
(R. 118.)

She later said she needed to prop her legs up

“throughout the day.”

(R. 129.)

Although the ALJ’s statement

regarding elevation of Plaintiff’s left leg is not accurate
reflection of her testimony, this one instance of
mischaracterization does not show harmful error as is Plaintiff’s
burden.

The statement that “a fair reading of the record will

conclusorily show that Ms. Jacob’s testimony was entirely
consistent with the medical records,” (Doc. 8-1 at 5) is wholly
inadequate to satisfy her burden of showing error on the basis
alleged.

Therefore, the Court concludes Plaintiff has not shown

that this claimed error is cause for remand.
B.

Treating Provider Evidence
Plaintiff next asserts the ALJ erred by failing

to accord proper weight to her treating providers.
5.)

(Doc. 8-1 at

Although Plaintiff states that “throughout the medical

records, [her] treating physicians continually note she received
little or no relief from her 2013 ankle surgery, that she is in
constant pain, and that her right ankle also bothers her on a day

13

to day basis” (id.), she cites only her own testimony in support of
the assertion (id. (citing R. 124, 125, 126)), and ALJ Cutter’s
inclusion in his summary that document “her complaints of pain,
worsening symptoms, recommendations to see specialists, and an
increased number of recommendations for testing” (id. (citing R.
101, 102, 103)).

Plaintiff conclusorily states that the ALJ

committed reversible error by giving limited weight to Plaintiff’s
treating providers, she does not cite a single opinion from a
treating provider nor does she cite specific records which were
improperly given limited weight.

(See Doc. 8-1 at 5-6.)

Therefore, once again, Plaintiff has not come close to meeting her
burden of showing error on the basis claimed.
C.

Post-Hearing Medical Evidence
Plaintiff’s third claimed error is that the ALJ did not

consider evidence from Umar Aydogan, M.D., dated May 12, 2015.
(Doc. 8-1 at 6.)

Defendant responds that Plaintiff’s failure to

submit evidence in not indicative of the ALJ’s duty to develop the
record.

(Doc. 9 at 15.)

The Court concludes Plaintiff has not

shown that the claimed error is cause for remand.
Plaintiff asserts that the ALJ was informed at the hearing on
May 1, 2015, that the May 12th evaluation was to take place.
8-1 at 6.)

(Doc.

While it is true that Plaintiff mentioned at the

hearing that she had an orthopedic evaluation scheduled for May 8th,
she made the statement in the context of a discussion of whether

14

anyone was monitoring whether she was continuing to lose bone
density.

(See R. 126-27.)

She confirmed that the orthopedist to

whom she had been referred was going to do diagnostic tests to see
if there was “more loss of bone density.”

(R. 127.)

At the

hearing, ALJ Cutter specifically asked Plaintiff’s attorney “Is
there anything outstanding that we need to add after the hearing is
over” and the attorney responded that there was only an April 20th
office note.

(R. 115.)

ALJ Cutter confirmed that he had received

that note as well as other recent submissions.

(R. 115-16.)

ALJ

Cutter also asked counsel whether there were any other issues he
wanted to bring to the ALJ’s attention and counsel replied there
were no other issues.

(R. 116.)

When asked at the end of the

hearing whether there were any closing comments, counsel asked only
that the ALJ consider an amended onset date.

(R. 137-38.)

The

List of Exhibits attached to the May 28, 2015, Decision shows that
the May 8th office notes were not received by ALJ Cutter before he
issued his Decision.

(See R. 108-11.)

Because an ALJ’s decision can only be reviewed by a court
based on the evidence that was before the ALJ at the time he made
his decision, error can only be based on what was before the ALJ at
that time.

Matthews, 239 F.3d at 593.

Thus, error in this

situation depends on whether ALJ Cutter committed reversible error
by not pursuing the record from a scheduled orthopedic bone density
evaluation which was mentioned in passing at the hearing.

15

Though an ALJ has a duty to develop the record, in the
circumstances presented here no evidence suggests that the ALJ ran
afoul of that duty.

As noted by Defendants, “[t]he Act and

controlling regulations make clear that while an ALJ has a duty to
develop the record, the burden is always on Plaintiff to present
evidence of her disability.”

(Doc. 9 at 16-17 (citing 42 U.S.C. §

423(d)(5)(A); 20 C.F.R. §§ 404.1512(a), 416.912(a)).)
plaintiff’s responsibility to

It is the

to provide medical and other

evidence upon which the commissioner can base a decision.
e.g., Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

See,

The ALJ has

the duty to develop the record sufficiently to make a determination
of disability, Ventura v. Shalala, 55 F.3d 900 (3d Cir. 1995); 20
C.F.R. § 416.912(d), but the duty does not come into play where the
record contains adequate evidence to make a determination.

While

an ALJ must undertake this duty “with special care” in situations
where the claimant is unrepresented, Dobrowoslky, 743 F.3d at 1008,
district courts have concluded that “[w]hen an applicant for social
security benefits is represented by counsel the administrative law
judge is entitled to assume that the applicant is making his
strongest case for benefits.”

Yoder v. Colvin, No. 13–107, 2001 WL

2770045, *3 (W.D. Pa. June 18, 2014) (citing Lofland v. Astrue, No.
12-624, 2013 WL 3929795, at *17 (D. Del. July 24, 2013)).
Here Plaintiff has been represented by counsel at all
pertinent times.

Counsel did not seek to keep the record open at

16

the hearing and specifically confirmed that, with receipt of the
April 20th office note and other submissions, there was “nothing
outstanding that we need to add after the hearing is over” (R.
115).

Plaintiff cannot now blame the ALJ for not pursuing records

which were not in existence at the time of the hearing and he was
not alerted would be forthcoming.

Therefore, Plaintiff has not

shown that claimed errors based on the ALJ’s failure to consider
May 2015, notes from Dr. Aydogan and failure to develop the record
are cause for remand.
D. Appeals Council Error
Finally, Plaintiff contends the Appeals Council erred in
failing to consider post-hearing medical evidence including Dr.
Aydogan’s May 12, 2015, evaluation and subsequent treatment notes.
(Doc. 8-1 at 7-8.)

Defendant responds that the Appeals Council’s

decision is not reviewable in that 42 U.S.C. § 405(g) only permits
review of final agency decisions and, because the Appeals Council
denied Plaintiff’s request for review, the ALJ’s decision became
the final agency decision subject to review.

(Doc. 9 at 19 (citing

Califano v. Sanders, 430 U.S. 99, 108 (1977); 20 C.F.R. §§
404.900(a)(4)-(5),.955, .981; 416.1400(a)(4)-(5), .1455, .1481;
Sims v. Apfel, 530 U.S. 103, 107 (2000)).

Defendant also responds

that Plaintiff cannot rely on the additional evidence submitted to
the Appeals Council because the evidence does not meet necessary
requirements.

(Doc. 9 at 21.)

In his reply brief, Plaintiff does

17

not dispute that the Appeals’ Council’s decision is not reviewable
in the circumstances presented here but maintains that the Court
may remand for consideration of new and material evidence.
10 at 4-5.)

(Doc.

The Court concludes Plaintiff has not satisfied her

burden of showing that the claimed error is cause for remand.
For remand to be based on evidence that was not before the
ALJ, the plaintiff must show that the evidence was new and
material, and there was just cause for not submitting it to the
ALJ.

42 U.S.C. § 405(g); Matthews, 239 F.3d at 593.

As reviewed

in Szubak v. Sec’y of Health and Human Services, 745 F.2d 831, 833
(3d Cir. 1984), to support a “new evidence” remand, the “new”
element means that the evidence must not merely be cumulative of
what is already in the record; and the “material” element means
that it must be relevant and probative and there is “a reasonable
possibility that the new evidence would have changed the outcome of
the Secretary’s determination.”

Id.; see also Newhouse v. Heckler,

753 F.2d 283, 287 (3d Cir. 1985).

Szubak also pointed out the

“implicit materiality requirement” 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.”

745 F.2d at 833 (citation omitted).

Applying this standard, records from August and September 2015
referenced by Plaintiff (Doc. 8-1 at 8; Doc. 10 at 4) are not

18

material because they are outside the relevant time period which
ended on the date of the ALJ’s decision, May 28, 2015.

Regarding

the May 2015 evaluation, Plaintiff states that Dr. Aydogan noted
the severity of her condition and provided “affirmative medical
corroboration of [her] stated limitations and restrictions.”
8-1 at 7.) She provides the following excerpt from the record:

(Doc.

The patient is a 30-year-old female.
She has a history of osteonecrosis in
multiple joints, secondary to long-term
steroid use for allergic bronchopulmonary
aspergillosis. She has had bilateral knee
replacements by Dr. Frankeny with OIP. She
has also had surgery already on her left
ankle by Dr. Warner a[t] OIP of the
osteonecrosis. She is here today because
over the last 6 months or so, she has had
progressive and increasing pain in that left
ankle. She says that typically she wears a
CAM boot for support. She has had a couple
of episodes over the last few months,
secondary to increasing pain of locking and
buckling as well. She feels like she is
losing some of the dorsiflexion in her foot
and has had some weakness, which she is not
sure if it is related to strength or pain
related. She says she was recently seen over
at Holy Spirit Hospital in early April, had
some x-rays taken and was told at that time
that she had some significant progression of
her osteonecrosis in her ankle and needed to
be seen by orthopedics and that is the reason
she is hear [sic] today. She denied any
numbness or tingling. She denies any
injuries to that ankle. She has not had any
significant swelling. Pain is there all of
the time, but worse with standing, stairs,
any kind of weight bearing and uneven
surfaces are significantly bad for her. It
does improve, but does not go away entirely
when she is lying down.

19

(Doc. 8-1 at 7-8 (quoting R. 674).)3

As noted in her reply brief

(Doc. 10 at 4), Dr. Aydogan diagnosed left talar necrosis with
breakdown and collapse as supported by x-rays reviewed at the May
8, 2015, office visit.

(See R. 664.)

The citation from Dr. Aydogan’s office note is Plaintiff’s
subjective history found in the note.

(See R. 663.)

It does not

meet the new and material standard, particularly in that this
history was provided to Dr. Aydogan just one week after Plaintiff
testified at the ALJ hearing.

(See R. 112-38.)

The diagnosis and

x-rays are objective evidence and may be material and new.
However, whether the evidence is sufficient to warrant remand
involves additional inquiry as to the reasonable possibility of a
different outcome and whether Plaintiff had good cause for failing
to submit the evidence to the ALJ.
Plaintiff recognizes that she needs to show that “new evidence
raises a ‘reasonable possibility’ of reversal sufficient to
undermine confidence in the prior decision.”

(Doc. 8-1 at 7

(quoting Newhouse v. Heckler, 753 F.2d 283, 287 (3d Cir. 1985)).)
Plaintiff states that she “was lacking in medical insurance and
therefore unable to obtain treatment earlier, and that the ALJ
expressed concern that the Plaintiff’s subjective complaints were
not backed up by objective medical testing, these records were

3

The Court Transcript Index goes from page 1 to page 668.
(See Doc. 5-1 at 1-3.) The quoted material is found in the record
at page 663. (See R. 5-13 at 663.)
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critical to an accurate determination of disability.”
4.)

(Doc. 10 at

However, with this statement alone, Plaintiff does not show

that evidence from the May 8, 2015, visit creates “a reasonable
possibility that the new evidence would have changed the outcome of
the Secretary’s determination.”

Szubak, 745 F.2d at 833.

While

Plaintiff’s lack of insurance no doubt impacted the extent of
record evidence concerning her impairments, reference (without
citation) to the ALJ’s concern about the lack of objective medical
testing does not indicate a “reasonable possibility” that the May
8th testing would have changed the ALJ’s determination when he
specifically recognized that April 3, 2015, x-rays showed
“questionable increasing defect of the talar dome compared to her
past imaging.”

(R. 103.)

Thus, while May x-rays are confirmative

(R. 665, 667), previous imaging had suggested deterioration (R.
655) which was recognized by ALJ Cutter (R. 103).

Similarly,

reports of recent deterioration and increasing pain over the six
months preceding the May evaluation (see R. 663) do not support a
reasonably possibility that the outcome would have changed in that
six months does not satisfy the statutory longitudinal requirement.
See 42 U.S.C. § 423(d)(1)(A).
As noted by Defendant, the relevant question in the “good
cause” inquiry is whether Plaintiff could have submitted the
evidence before the ALJ rendered his decision.

(Doc. 9 at 23

(citing Morales v. Colvin, No. 13-229-J, 2015 WL 1507844, at *3

21

(W.D. Pa. Mar. 31, 2015); Edwards v. Astrue, 525 F. Supp. 2d 710,
712-13 (E.D. Pa. 2007)).)

Here it appears Plaintiff’s counsel

faxed the records from May 8, 2015, to ALJ Cutter on May 28, 2015,
the date he issued his decision.

(Doc. 10-3; R. 107.)

Although

Plaintiff states the records should have been considered by the ALJ
in determining her disability (Doc. 10 at 3), she presents no
evidence that ALJ Cutter received them before he issued his
decision.

Clearly Plaintiff’s counsel believed the evidence to be

important and could have requested that the record be kept open
pending receipt of the records from May 8, 2015.

Importantly, no

evidence suggests that Plaintiff’s counsel sought to have the
record remain open during the hearing or alerted the ALJ after the
hearing that additional evidence would be forthcoming.

As

discussed above, Plaintiff’s mere mention of a scheduled
appointment at the hearing was not sufficient to alert the ALJ that
Plaintiff’s counsel’s assurance that nothing needed to be added to
the record after the hearing was not accurate.
27.)

(See R. 115, 126-

In these circumstances, Plaintiff has not presented good

cause for failing to present the evidence to ALJ Cutter before he
issued his Decision.

Therefore, the Court concludes Plaintiff has

not satisfied her burden of showing that remand for consideration
of new evidence is warranted.
V. Conclusion
For the reasons discussed above, the Court concludes

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Plaintiff’s appeal is properly denied.

An appropriate Order is

filed simultaneously with this Memorandum.
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: September 27, 2017

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