ROSA v. COLVIN

Filing 14

ORDER denying 6 Plaintiff's Motion for Summary Judgment and granting 11 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 4/11/2016. (lwp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOSE D. ROSA,

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) Civil Action No. 15-87-E
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Plaintiff,
v.

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER
AND NOW, this 11th day of April, 2016, upon consideration of the parties=
cross-motions for summary judgment, the Court, upon review of the Commissioner of Social
Security=s final decision, denying Plaintiff=s claim for disability insurance benefits under
Subchapter II of the Social Security Act, 42 U.S.C. ' 401, et seq., and denying Plaintiff=s claim
for supplemental security income benefits under Subchapter XVI of the Social Security Act, 42
U.S.C. ' 1381, et seq., finds that the Commissioner=s findings are supported by substantial
evidence and, accordingly, affirms.

See 42 U.S.C. ' 405(g); Jesurum v. Secretary of U.S. Dep’t

of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995); Williams v. Sullivan, 970 F.2d
1178, 1182 (3d Cir. 1992), cert. denied sub nom., 507 U.S. 924 (1993); Brown v. Bowen, 845
F.2d 1211, 1213 (3d Cir. 1988); see also Berry v. Sullivan, 738 F. Supp. 942, 944 (W.D. Pa.
1990) (if supported by substantial evidence, the Commissioner=s decision must be affirmed, as a
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federal court may neither reweigh the evidence, nor reverse, merely because it would have
decided the claim differently) (citing Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).1

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Plaintiff argues that the decision by the Administrative Law Judge (“ALJ”) is erroneous
because: (1) Plaintiff reached age 50 while his appeal was pending before the Appeals Council
and, based on the findings in ALJ’s decision, Plaintiff should have been considered disabled at
that time; and (2) the medical records submitted to the Appeals Council, after the ALJ made his
decision, show that Plaintiff is disabled. The Court disagrees and finds no merit in Plaintiff’s
arguments.
First, Plaintiff contends, essentially, that the Appeals Council should have reviewed and
modified the ALJ’s decision because, although the ALJ decided Plaintiff’s claim while he was
considered a “younger individual” under the Medical-Vocational Guidelines, Plaintiff turned age
50 while his appeal was pending before the Appeals Council, which placed him in the more
restrictive category of “closely approaching advanced age.” Plaintiff further asserts that, had
his claim been evaluated once he fell within this second category, he would have been declared
“disabled.”
It should first be noted that the Commissioner of Social Security (“Commissioner”) has
promulgated the Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (the
“Grids”), to assist in determining whether a claimant is disabled. The Grids reflect the analysis
of various considerations, including the claimant’s physical abilities, age, education, and work
experience, and direct a finding of “disabled” or “not disabled” based on the combination of
these factors. However, where a claimant has both non-exertional, as well as exertional,
limitations, an ALJ cannot rely solely on the Grids to make his or her disability finding. See
Sykes v. Apfel, 228 F.3d 259, 266 (3d Cir. 2000).
In this case, the ALJ explained how the Grids are used in the evaluation process, stating
that “[i]f the claimant can perform all or substantially all of the exertional demands at a given
level of exertion, [the Grids] direct a conclusion of either “disabled” or “not disabled” depending
upon the claimant’s specific vocational profile.” (R. 21 (citing SSR 83-11, 1983 WL 31252)).
The ALJ explained that, moreover, “[w]hen the claimant cannot perform substantially all of the
exertional demands of work at a given level of exertion and/or has nonexertional limitations, [the
Grids] are used as a framework for decisionmaking unless there is a rule that directs a conclusion
of ‘disabled’ without considering the additional exertional and/or nonexertional limitations.”
(R. 21 (citing SSR 83-12, 1983 WL 31253; SSR 83-14, 1983 WL 31254)).
In this regard, although the ALJ found Plaintiff to be a “younger person” pursuant to 20
CFR §§ 404.1563 and 416.963, and though he noted that “[i]f the claimant had the residual
functional capacity to perform the full range of sedentary work, a finding of ‘not disabled’ would
be directed by [the Grids],” he also found that Plaintiff’s “ability to perform all or substantially
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all of the requirements of this level of work has been impeded by additional limitations.” (R.
21). Therefore, because the ALJ found that Plaintiff had additional non-exertional limitations,
he did not rely solely on the Grids. Instead, the ALJ questioned a vocational expert (“VE”) in
order to “determine the extent to which these limitations erode the unskilled sedentary
occupational base,” and he relied upon that testimony in making his ultimate determination. (R.
21-22). Specifically, at the administrative hearing, the ALJ instructed the VE to consider
Plaintiff’s age, education, work experience and residual functional capacity (“RFC”). The VE
testified that, given all of these factors, Plaintiff could perform jobs that exist in significant
numbers in the national economy, such as telephone quotation clerk, call out operator, and
document preparer. (R. 22, 51). The ALJ consequently found that Plaintiff was not disabled.
(R. 22).
Plaintiff claims, however, that because he turned 50 years of age while his appeal was
pending before the Appeals Council, the Appeals Council should have reviewed his case and,
had it done so, would have ruled differently than the ALJ. In his decision, the ALJ noted that
under Rule 201.19 (which applies to “younger individuals” aged 45-49), if Plaintiff had the RFC
to perform the full range of sedentary work, a finding of “not disabled” would be directed.
(R. 21). By extension, Plaintiff infers that, if his case was evaluated with him as a 50-year-old
individual, the ALJ would consider him as falling under Rule 201.10 (which applies to
individuals “closely approaching advanced age”), and would necessarily find him to be
“disabled” without further need to resort to a determination by a VE. Nevertheless, to be
considered under Rule 201.10, the ALJ would have to find that Plaintiff does not have any
“transferable” job skills. In his decision, however, the ALJ expressly declined to make that
finding, instead noting that, here, “[t]ransferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a framework supports
a finding that the claimant is ‘not disabled,’ whether or not the claimant has transferable job
skills.” (R. 21 (emphasis added)). Therefore, because the ALJ would have to make a finding
that Plaintiff has no transferable job skills—which he has not done—it is not clear that, if
Plaintiff’s case were to be evaluated considering him as a 50-year-old, Plaintiff would
necessarily be considered “disabled.”
Furthermore, the Court’s role at this juncture is to review the decision of the ALJ, not the
Appeals Council’s denial of Plaintiff’s request for review. In fact, a plaintiff “who was
unsuccessful in the administrative process may seek judicial review once there is a final decision
by the Commissioner of Social Security.” Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.
2001). If, as here, “the Appeals Council denies the request for review, the ALJ’s decision is the
Commissioner’s final decision.” Id. (emphasis added). Moreover, it is well established that
evidence that was not before the ALJ cannot be considered by a district court in its determination
of whether or not the ALJ’s decision was supported by substantial evidence, even if it was
submitted to the Appeals Council. See id. at 594; Chandler v. Comm’r of Soc. Sec., 667 F.3d
356, 360 (3d Cir. 2011). Thus, quite simply, the fact that Plaintiff is now 50 years of age was
obviously not before the ALJ when he made his decision back in 2013. The Court, therefore,
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cannot find that the ALJ’s decision is erroneous, based on the record before him at the time, and
Plaintiff’s argument is therefore without merit.
In a similar vein, Plaintiff’s second argument is that the Appeals Council erred in failing
to consider additional evidence which Plaintiff forwarded to the Council with his appeal, but
which he did not present to the ALJ. Here again, this Court’s role is to make a determination as
to whether the ALJ’s decision is supported by substantial evidence, not whether the Appeals
Council erred in denying Plaintiff’s request for review. See Matthews v. Apfel, 239 F.3d at
594. In making such determination, the Court cannot rely on additional documentation which
was not submitted to the ALJ. The Court does, however, have the authority to remand a case
on the basis of new evidence under sentence six of 42 U.S.C. § 405(g), which provides, in
relevant part:
[The court] may at any time order additional evidence to be taken before
the Commissioner of Social Security, but only upon a showing that there
is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.
Although Plaintiff has not specifically asked this Court for a remand based on new
evidence, even if he had, the Court would deny the request because Plaintiff has failed to meet
his burden to prove that such a remand is warranted. In order to remand a case based on new
evidence which has not been presented to the ALJ, the Court must determine that certain criteria
have been met. First, the evidence must be “new” and “not merely cumulative of what is
already in the record.” Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir.
1984). Second, the evidence must be “material,” which means that “it 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.” Id. Third, the plaintiff “must
demonstrate good cause for not having incorporated the new evidence into the administrative
record.” Id.
Plaintiff contends generally that the “post-ALJ determination medical records submitted
to the Appeals Council as permitted should have been recognized as corroboration of the
longitudinal decline in Plaintiff’s multiple impairments.” (Doc. No. 7, at 7). In his brief,
however, Plaintiff cites specifically only to certain additional medical records from Matthew
Testrake, D.P.M. (R. 168-81). Because those records are from office visits after the date the
ALJ issued his decision, the Court can assume that the evidence is new and not merely
cumulative of what is in the record. However, other than notations that Plaintiff’s foot pain has
been a problem for a “year” or “years” and that the onset has been apparently “gradual,” there is
no indication that the information in those records relates back to the relevant time period under
consideration. On its face, the documentation, which consists of office visit notes, addresses
Plaintiff’s current status at the time of those appointments. The records are therefore not
material, since they do not relate to the relevant time period in this case. If anything, they may
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Therefore, IT IS HEREBY ORDERED that Plaintiff=s Motion for Summary
Judgment (Doc. No. 6) is DENIED and Defendant=s Motion for Summary Judgment (Doc.
No. 11) is GRANTED.
s/Alan N. Bloch
United States District Judge
ecf: Counsel of record
possibly indicate a subsequent deterioration of a previously non-disabling condition, since as
Plaintiff himself points out, they note his “course progression” as “worsening.” See Szubak,
745 F.2d at 833 (“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 [a] previously non-disabling condition.”); Rainey
v. Astrue, 2012 WL 3779167, at *8 (W.D. Pa. Aug. 31, 2012); Harkins v. Astrue, 2011 WL
778403, at *1 n.1 (W.D. Pa. Mar. 1, 2011). Additionally, the documentation does not even
arguably contradict the ALJ’s decision, nor would it change the outcome of the ALJ’s decision,
which already limits Plaintiff to sedentary work.
Moreover, even if the Court were to find the documentation to be material, Plaintiff has
made no attempt to show good cause for failing to seek to incorporate this evidence into the
administrative record prior to the time the ALJ made his decision. The only reason why
Plaintiff did not submit the documentation to the ALJ appears to be that these records did not
exist at the time the ALJ reached his decision. Nevertheless, at the administrative hearing, the
ALJ offered to keep the record open for a period of time so that Plaintiff could submit additional
evidence. (R. 52). Plaintiff indicated he would need an additional “ten days at most,” to
which condition the ALJ agreed. (R. 52). During that time, Plaintiff submitted additional
documentation to the ALJ, but there is no indication that Plaintiff attempted to notify the ALJ of
any pending appointments to which these particular records refer, nor is there any indication that
Plaintiff asked for more time in which to submit additional evidence. (R. 12). Instead, after
the ALJ had reached his decision, Plaintiff appears to have simply submitted additional
documentation to the Appeals Council. Therefore, even if the Court were to assume that this
documentation is material, because Plaintiff has not shown good cause for failing to incorporate
this documentation into the record before the ALJ, a new evidence remand is not warranted.
In sum, under these circumstances, the Court finds that substantial evidence supports the
ALJ’s determination, based on the evidence before him, that Plaintiff retained the ability to
perform work consistent with his RFC finding. The fact that Plaintiff turned age 50 while his
appeal was pending before the Appeals Council does not show that he should have been
considered disabled at the time of the ALJ’s decision, nor has Plaintiff shown that a new
evidence remand is warranted in this case. Accordingly, the Court affirms.
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