SISTO v. ASTRUE

Filing 20

ORDER denying 15 Plaintiff's Motion for Summary Judgment; granting 17 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 3/12/2012. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

LINDA MARIE SISTO,

Plaintiff,
vs.

Civil Action No. 10-245-J

MICHAEL J. ASTRUE t
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

o

R D E R

AND NOW, this 12th day of March, 2012, 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

., finds that the

Commissioner's findings are supported by substantial evidence and t
accordingly, affirms.

See 42 U.S.C. §405 (g)

U.S. Department of Health

&

i

Jesurum v. Sec;retaryof

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

1995) i 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 t as a federal court may neither
1

reweigh the evidence, nor reverse, merely because it would have decided
the claim differently)

(citing Cotter v. Harris, 642 F.2d 700, 705

(3dCir.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 "Act"). Plaintiff's arguments are lacking
woefully in merit. She argues that "the 'brittle' nature of her diabetes
and the demonstrated inability to adequately control same [sic] approximates
[Listing 9.08]" and that the ALJ erred in finding that her diabetes mellitus
was not of listing severity. Plaintiff's Brief in Support of Summary Judgment
(Doc. No. 16). The Court disagrees. First, the record does not contain a
diagnosis of "brittle diabetes," (aka "unstable diabetes") which is a term
used to describe "dramatic and recurrent swings in glucose levels" and is
a condition that is rare among diabetics, "occur [ing] no more frequently
than in 1% to 2% of persons with type 1 diabetes." WIKIPEDIA.COM,
http://en.wikipedia.org/wiki/Diabetes mellitus (last visited March 12,
2012). While the record does show that Plaintiff did have some issues
controlling her glucose levels, nothing in the record suggests, and no
physician has opined, that the swings in her glucose levels are so frequent
and uncontrollable that she can be said to have "brittle diabetes."
Second, Plaintiff fails to explain how the relevant medical evidence
in the record satisfies the specific criteria set forth in Listing 9.08 and
a review of the record does not provide the answer. The entire substance
of her argument is comprised of three short sentences where she asserts that
her condition met/equaled the listing because of her numerous falls, foot
infections, and hospi talizations. (Doc. No. 16 at 6). In addi tion to being
unpersuasive, this argument merely recites evidence already considered and
found not to be demonstrative by the ALJ in terms of showing that her condi tion
met or equaled a listing.
Third, in finding that Plaintiff's impairments did not satisfy Step
Three, the ALJ reasoned that "the medical evidence does not contain the
objective signs, symptoms or findings, or the degree of functional
limitations, necessary for the claimant's impairments, considered singly
or in combination, to meet or equal the severity of [Listing 9.08]." (R.
14). He explained that he had "considered the opinions from the state agency
medical consultants who evaluated the issue at the administrative review
process and reached the same conclusion" as well as the fact that "no treating
or examining medical source has stated [that] the claimant has an impairment
that meets or equals the criteria of any listed impairment." (Id. at 14-15).
He also acknowledged Plaintiff's diagnosis of moderate diabetic retinopathy
and considered her treating ophthalmologist's July 2009 report which
indicated that she had "visual acuity of 20/20 OD and 20/30+ OS, and that
II

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"her anterior segment was grossly okay. " (Id. at 17). The Court notes that
visual acuity of 20/30 is considered "mild vision loss, or near normal
vision." WIKIPEDIA. COM, http: I len. wikipedia. org/wiki/Low_vision (last
visited March 12, 2012).
Moreover, in his discussion, the ALJ explained that Plaintiff still
engaged in significant activities of daily living ("ADL") and found that
her ADLs were "inconsistent with an individual who has experienced
debili tating symptoms."
(R. 17). He outlined the host of acti vi ties in
which she still was able to engage and the Court agrees that her ADLs indeed
were indicative of an ability to work.
(Id.). The Court finds that the ALJ
properly summarized the relevant evidence in the record, gave appropriate
weight to the medical opinions contained therein, and "explained his findings
in sufficient detail to allow us to conduct 'meaningful judicial review.'"
Melvinv. Comm'rof Soc. Sec., 226 Fed. Appx. 126,129 (3dCir. 2007) (quoting
Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119 (3d Cir. 2000)). The Court
also finds that his conclusion that Plaintiff's diabetes mellitus did not
meet or equal Listing 9.08 is supported by substantial record evidence.
Additionally, the Court notes that Plaintiff appended four new exhibits
(Exhibits A, B, C, and D) to her brief in an apparent request that the Court
consider the attached documents in its review. This is improper, as these
exhibits were not considered by the ALJ in issuing his November 2, 2009
opinion. See Matthewsv. Apfel, 239F.3d589, 594 (3dCir. 2001) ("[EJvidence
that was not before the ALJ cannot be used to argue that the ALJ' s decision
was not supported by substantial evidence."). Accordingly, the Court cannot
rely on these documents in making its determination here.
Notwithstanding the fact that Plaintiff did not ask for a remand based
on new evidence, the Court does note that 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 courtJ 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.
Therefore, 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, 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. Sec'y of Health & Human Serv., 745 F.2d 831, 833 (3d Cir.
1984). As noted above, Plaintiff did not specifically request a remand based
on new evidence, but even if she had, the Court would deny the request because
she has failed to meet her burden of demonstrating that the exhibits contain

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Therefore, IT IS HEREBY ORDERED that plaintiff's Motion for
Summary Judgment (document No. 15) is DENIED and defendant's Motion
for Summary Judgment (document No. 17) is GRANTED.

s/Alan N. Bloch
United States District Judge
ecf:

Counsel of record

new and material evidence for which good cause exists for not having
previously incorporated them into the administrative record. Plaintiff does
not articulate how the information contained in the new exhibits specifically
demonstrates that her condition meets or equals Listing 9.08 and the Court
fails to see how the listing criteria is satisfied through this additional
information. The new exhibits do not provide support for the finding that
she suffered "significant and persistent disorganization of motor function
in two extremities [that] result [ed] in sustained disturbance of gross and
dexterous movements, or gait and station.
"20 C.F.R. pt. 404, subpt.
P, Appx. 1 § 9.08(a). As such, the Court finds that a remand based on new
evidence is unwarranted.

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