GLANCY v. COLVIN

Filing 19

OPINION and ORDER denying 11 Motion for Summary Judgment; granting 17 Motion for Summary Judgment. Signed by Judge Donetta W. Ambrose on 8/7/17. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
WILLIAM GLANCY
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 16-118

AMBROSE, Senior District Judge

OPINION
Pending before the court are Cross-Motions for Summary Judgment. (ECF Nos. 11 and
17). Both parties have filed Briefs in Support of their Motions. (ECF Nos. 12 and 18). After
careful consideration of the submissions of the parties, and based on my Opinion set forth
below, I am denying Plaintiff’s Motion for Summary Judgment (ECF No. 11) and granting
Defendant’s Motion for Summary Judgment. (ECF No. 17).
I.

BACKGROUND
Plaintiff brought this action for review of the final decision of the Commissioner of Social

Security (ACommissioner@) denying his applications for disability insurance benefits (DIB”) and
supplemental security income (“SSI”) pursuant to the Social Security Act (AAct@). Plaintiff filed
his applications alleging he had been disabled since December 26, 2012. (ECF No. 7-6, pp. 2,
4, 11, 18). Administrative Law Judge (“ALJ”), Wayne Stanley, held a hearing on September 16,
2014. (ECF No. 7-3). On December 5, 2014, the ALJ found that Plaintiff was not disabled
under the Act. (ECF No. 7-2, pp. 20-32).
After exhausting all administrative remedies, Plaintiff filed the instant action with this
court. The parties have filed Cross-Motions for Summary Judgment. (ECF No. 11 and 17). The
issues are now ripe for review.
1

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

II.

LEGAL ANALYSIS
A.

Standard of Review

The standard of review in social security cases is whether substantial evidence exists in
the record to support the Commissioner=s decision. Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.
1989). Substantial evidence has been defined as Amore 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).
Additionally, 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). A
district court cannot conduct a de novo review of the Commissioner=s decision or re-weigh the
evidence of record. Palmer v. Apfel, 995 F.Supp. 549, 552 (E.D. Pa. 1998). Where the ALJ's
findings of fact are supported by substantial evidence, a court is bound by those findings, even if
the court would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999). To determine whether a finding is supported by substantial evidence, however,
the district court must review the record as a whole. See, 5 U.S.C. '706.
To be eligible for social security benefits, the plaintiff must demonstrate that he cannot
engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. '423(d)(1)(A); Brewster v. Heckler,
786 F.2d 581, 583 (3d Cir. 1986).
The Commissioner has provided the ALJ with a five-step sequential analysis to use
when evaluating the disabled status of each claimant. 20 C.F.R. '404.1520(a). The ALJ must
determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if the claimant has a severe impairment,
whether it meets or equals the criteria listed in 20 C.F.R., pt. 404, subpt. P., appx. 1; (4) if the
impairment does not satisfy one of the impairment listings, whether the claimant=s impairments

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prevent him from performing his past relevant work; and (5) if the claimant is incapable of
performing his past relevant work, whether he can perform any other work which exists in the
national economy, in light of his age, education, work experience and residual functional
capacity. 20 C.F.R. '404.1520. The claimant carries the initial burden of demonstrating by
medical evidence that he is unable to return to his previous employment (steps 1-4).
Dobrowolsky, 606 F.2d at 406. Once the claimant meets this burden, the burden of proof shifts
to the Commissioner to show that the claimant can engage in alternative substantial gainful
activity (step 5). Id.
A district court, after reviewing the entire record may affirm, modify, or reverse the
decision with or without remand to the Commissioner for rehearing. Podedworny v. Harris, 745
F.2d 210, 221 (3d Cir. 1984).
B.

Post Decision Evidence

Plaintiff’s only argument is that the case should be remanded pursuant to sentence six of
42 U.S.C. §405(g) such that the case can be reconsidered with post decision evidence
submitted to the Appeals Council. (ECF No. 12, pp. 14-21). As I mentioned previously, the
instant review of the ALJ’s decision is not de novo.2 If a 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. Matthews v. Apfel, 239 F.3d 589, 591-593 (3d Cir. 2001) (Sentence Six review), citing,
Szubak v. Sec'y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). In Szubak v. Secretary of Health and
Human Services, the Third Circuit explained the following:
2

An ALJ’s findings of fact are conclusive if supported by substantial evidence. Mathews v. Eldridge, 424
U.S. 319, 339, 96 S.Ct. 893, 905 n. 21 (1976); Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001),
citing, Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991) (“[E]vidence that was not before the ALJ
cannot be used to argue that the ALJ's decision was not supported by substantial evidence.”). My review
of an ALJ’s decision is limited to the evidence that was before him. Id.; 42 U.S.C. §405(g). Therefore,
pursuant to Sentence Four of §405(g), I cannot look at the post-decision evidence (ECF No. 6-8, pp. 5163) that was not first submitted to the ALJ when reviewing his decision.

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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 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 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.
745 F.2d 831, 833 (3d Cir. 1984) (citations omitted). All three requirements must be satisfied to
justify remand. Id., citing Szubak, 745 F.2d at 833.
In this case, Plaintiff submitted, for the first time to the Appeals Council, inter alia,
Exhibits 11F (Meadville Medical Center dated August 22, 2013 through September 6, 2013) and
12F (Stairways Behavior Health dated August 26, 2013 through November 17, 2014). (ECF No.
7-2, p. 6).

Plaintiff argues that the information contained in Exhibit 11F and 12F is new,

material and there is good cause as to why he did not submit it prior to the decision. (ECF No.
12, pp. 15-21). After a review of the evidence I disagree.
Evidence is “new” if 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) (emphasis
added). In his brief, Plaintiff acknowledges that the evidence is indicative of his condition during
the relevant time (prior to December 5, 2014, the date of the ALJ’s opinion). (ECF No. 12, pp.
15-16). In so doing, Plaintiff’s counsel acknowledges that said information was available at that
time, but that she had just not secured the same. (ECF No. 12, p. 16-17). Since the evidence
was available, it is not new. Sullivan, 496 U.S. at 626.
Additionally, the only reason given by Plaintiff’s counsel as to why she had not submitted
the evidence before the ALJ’s determination was that she had not yet obtained the records.
(ECF No. 12, pp. 16-17). While I acknowledge that Plaintiff’s counsel had requested that the
record remain open such that she could obtain and submit the documents, the ALJ reasonably
kept the record open for 80 days through December 5, 2014 (the date of the decision). (ECF

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No. 7-2, pp. 20-32). At no time prior thereto did Plaintiff’s counsel submit the records, nor did
Plaintiff’s counsel request a subpoena to compel production or seek the ALJ’s help in securing
the documents. Thus, I find that Plaintiff has failed to show good cause for not submitting the
evidence to the ALJ prior to his December 5, 2014 decision.3
Consequently, remand under Sentence Six is not warranted.
An appropriate order shall follow.

3

I need not reach a conclusion on whether the information is material because Plaintiff has failed to show
that the evidence was not new and good cause was not shown. Matthews, 239 F.3d at 591-593, citing
Szubak, 745 F.2d at 833.

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

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Plaintiff,
-vsNANCY A. BERRYHILL,4
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 16-118

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 7th day of August, 2017, it is ordered that Plaintiff=s Motion for
Summary Judgment (ECF No. 11) is denied and Defendant=s Motion for Summary Judgment
(ECF No. 17) is granted.
BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

4

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

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