WEIMER v. ASTRUE et al

Filing 13

ORDER denying 10 Plaintiff's Motion for Summary Judgment; granting 11 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 1/2/2013. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD GLENN WEIMER,

Plaintiff,
vs.

Civil Action No. 11-434

MICHAEL J. AS TRUE ,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

o

R D E R

AND NOW, this 2nd day of January, 2013, 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., finds that the
Commissioner's findings are supported by substantial evidence and,
accordingly, affirms.

See 42 U.S.C. §405 (g)

U.S. Department of Health
1995)

i

&

i

Human Services, 48 F.3d 114, 117 (3d Cir.

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).
944

(W.D.

Pa.

1990)

See also Berry v. Sullivan, 738 F. Supp. 942,
(if

supported by substantial

evidence,

the

Commissioner's decision must be affirmed, as a federal court may neither
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reweigh the evidence, nor reverse, merely because it would have decided
the claim differently) (citingCotterv. Harris, 642 F.2d700, 705 (3d
Cir.1981)).1

As stated above, substantial record evidence supports the
decision of the Administrative Law Judge ("ALJ") that Plaintiff is not
disabled under the Social Security Act. The Court notes, however, that
Plaintiff appears to request that the Court consider documents attached
to his motion (Doc. No. 10) that were not considered by the ALJ in issuing
his October 17, 2008 opinion. The Court further notes that certain
records were submitted to the Appeals Council that were not considered
by the ALJ.
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. See
Matthews v. Apfel, 239 F.3d 589,594 (3d Cir. 2001). Accordingly, the
Court cannot rely on these documents in making its determination here.
However, a district court can remand a case on the basis of new evidence
under sentence six of 42 U.S.C. § 405(g).
Section 405(g) 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 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. To remand a case based on new evidence
which has not been presented to the ALJ, the Court must determine that
the following criteria have been met: First, the evidence must be new
and not merely cumulative of what is in the record. Second, the
evidence must be material. This 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 determination. Third,
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the plaintiff must demonstrate good cause for not having incorporated
the new evidence into the administrative record. See Matthews, 239
F.3d at 594; Szubak v. Secretary of Health & Human Services, 745 F.2d
831, 833 (3d Cir. 1984).
Because the majority of the records at issue do not appear to have
been included in the record before the ALJ, the Court will assume that
these records are new and not merely cumulative of what is in the record.
Nonetheless, even if this information is new, it is not material. Most
of these records do not even arguably contradict the ALJ's decision.
Indeed, nothing in the records attached to Plaintiff's motion would
change the outcome of the ALJ's determination. As to the records
submitted to the Appeals Council - - specifically, Dr. William Musser's
November 2, 2004 report; Dr. Dennis Kreinbrook's December 15, 2005
psychological report; Dr. Carlos Marrero's electromyography testing
report dated February 25, 2009; Dr. Marrero's December 24, 2009 report;
and Pennsylvania Department of Public Welfare Employability Assessment
Forms dated December 4, 2008, and September 15, 2004 - none of these
records relate to the relevant time period. 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 [aJ previously non-disabling
condition."); Rainey v. Astrue, 2012 WL 3779167, at *8 (W.D. Pa. Aug.
31, 2012) i Harkins v. Astrue, 2011 WL 778403, at *1 n.1 (W.D. Pa. Mar.
1,2011). See also Alstonv. Astrue, 2011WL4737605, at *3 (W.D. Pa.
Oct. 5, 2011) (" [M] edical evidence generated after the date last insured
is only relevant to the extent it is reasonably proximate in time or
relates back to the period at issue.") ; Tecza v. Astrue, 2009 WL 1651536,
at *9-10 (W.D. Pa. June 10, 2009) (collecting cases).
Dr. Musser's report and Dr. Kreinbrook's report significantly
predate the alleged onset date of April 14, 2006; indeed, Dr. Musser's
report was completed a year and a half before the alleged onset. More
importantly, though, both were considered in regard to Plaintiff's
previous application for Social Security benefits that was denied on
April 13, 2006, and the ALJ in this case did not re-open that record.
Accordingly, the Commissioner has already found that these records do
not establish a disabili ty as of April 13 2006, and that prior decision
is final and binding on the parties as to the issue of Plaintiff's
disability through that date. See 20 C.F.R. §§ 404.955, 957(c) (1) i
Tobak v. Apfel, 195 Fed. Appx. 183, 186 (3d Cir. 1999); McHenry v.
Secretary of Health & Human Services, 661 F. Supp. 552, 553 (W.D. Pa.
1987). Since these records from 2004 and 2005 were insufficient to
I

3

establish disability as of April of 2006, there is little if any basis
to find that they establish disability at a later date. Indeed, there
is no indication that the opinions contained in those reports were
intended to apply to a substantially later time period. Indeed, Dr.
Musser's report specifically indicates that Plaintiff's condition
should improve if he continues not to drink and as long as he is active
in physical therapy.
(R. 629). Moreover, many of the limitations
found by Dr. Musser and Dr. Kreinbrook, particularly the mental
limitations, are consistent with the residual functional capacity
determined by the ALJ.
Dr. Marrero's records, on the other hand, postdate the ALJ's
decision by more than four months, and postdate the Plaintiff's date
last insured, June 3D, 2007, by close to two years. In fact, his
December 24 report, in which he opines that Plaintiff is unable to engage
in gainful, productive, sustained, regular, competitive work, was
prepared more than a year after the ALJ' s decision and two and a half
years after his date last insured. There is no indication in these
records that they relate back to the time period prior to the ALJ's
decision, much less to Plaintiff's insured period. Indeed, Plaintiff
did not even treat with Dr. Marrero until after the ALJ issued his
decision.
(R. 682). Further, Dr. Marrero does not opine as to
specific work-related limitations, but rather gives a broad opinion
that Plaintiff has a permanent disability and cannot work. A
physician's statement that a claimant is "disabled" or "unable to work"
is not binding on the ALJ, as opinions as to whether a claimant is
disabled is reserved to the Commissioner. See 20 C.F.R. §
404.1527(e) (1) i Griffin v. Commissioner of Soc. Sec., 305 Fed. Appx.
886, 891 (3d Cir. 2009). Accordingly, the ALJ would not have been
required to accept Dr. Marrero's opinion even if it did relate to the
relevant time period. The Court further notes that the records
attached to Plaintiff's motion pertain to an even later time period.
As for the Pennsylvania Department of Public Welfare
Employabili ty Assessment Forms, the Court notes that the September 15,
2004 form substantially predates the relevant time period.
Regardless, as explained above, the opinion of a physician that a
claimant is "disabled" or "unable to work" is not binding on the ALJ,
and the ALJ was not required to accept these opinions.
Finally, as to the records that predate the ALJ's decision,
Plaintiff has made no attempt to show good cause for failing to
incorporate these documents into the administrative record prior to
that decision. These documents were obviously available, and, indeed,
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Therefore

I

IT IS HEREBY ORDERED that plaintiff's Motion for

Summary Judgment (document No. 10) is DENIED and defendant's Motion
for Summary Judgment (document No. 11) is GRANTED.

s
N. Bloch
United States District Judge
ecf:

Counsel of record

cc:

Ronald Glenn Weimer
1807 Cowling Road
Scottdale PA 15683
(forwarded certified mail return receipt requested;
and regular first class mail)
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there is no apparent reason why, if Plaintiff thought they were
relevant I he did not submit them to the ALJ. Accordingly I even if these
materials w ere material, a new evidence remand would not be warranted.

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