HARTZ v. ASTRUE
Filing
21
ORDER denying 14 Plaintiff's Motion for Summary Judgment; granting 18 Defendant's Motion for Summary Judgment. Signed by Judge Alan N. Bloch on 03/31/2014. (dpo)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PATTI MARIE HARTZ,
)
)
Plaintiff,
)
)
vs.
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)
MICHAEL J. ASTRUE,
)
COMMISSIONER OF SOCIAL SECURITY, )
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Defendant.
)
Civil Action No. 12-233-J
O R D E R
AND NOW, this 31st day of March, 2014, 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 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. Department of Health & Human Services, 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 federal
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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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In arguing that the Administrative Law Judge (“ALJ”) erred in
finding that Plaintiff is not disabled under the Social Security Act,
Plaintiff’s counsel inexplicably ignores the fact that much of the
evidence to which he cites was not before the ALJ when he rendered
his decision on September 8, 2010. The ALJ did not have Exhibits 55F
through 70F, as these were submitted only to the Appeals Council, yet
counsel cites to these exhibits extensively in support of Plaintiff’s
argument regarding the ALJ’s treatment of her hidradenitis
suppurativa. Counsel makes no real attempt to differentiate between
evidence that was before the ALJ and evidence that was not, or to explain
why he believes that the Court can consider the latter.
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 Matthews v. Apfel,
239 F.3d 589, 594 (3d Cir. 2001); Chandler v. Commissioner of Soc.
Sec., 667 F.3d 356, 360 (3d Cir. 2011). Accordingly, the Court cannot
rely on the additional documents to which counsel cites in making its
determination here. Based on the record before the ALJ at the time
he issued his decision, substantial evidence supported his finding
that Plaintiff was not disabled. His decision provided a thorough and
complete analysis of the evidence before him.
The Court does note that it has the authority to 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 asked this Court for a remand based on new
evidence, even if she had, the Court would deny the request because
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Plaintiff has failed to meet her 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, 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 Exhibits 55F through 70F appear, for the most part, to
contain material not otherwise 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. However, many of the records,
particularly those contained in Exhibits 61F through 70F, are from
after the date the ALJ issued his decision. Some of this later
material, such as the records in Exhibit 61F, the September 11, 2010
records from Blair Medical Associates in Exhibit 63F, the September
14, 2010 records from Altoona Family Physicians in Exhibit 66F, and
the September 30, 2010 records from Blair Medical Associates in Exhibit
67F, may be close enough in time to the ALJ’s decision to at least
arguably relate back to the relevant time period (although none of
these records indicate that they relate to the period before September
8, 2010). Other material in these exhibits, however, substantially
post-dates the ALJ’s decision with no indication that the information
relates back to the relevant time period. Indeed, Exhibit 62F contains
records from as late as April of 2011; Exhibits 63F, 64F, and 68F contain
records from as late as July of 2011; Exhibits 65F, 66F, and 69F contain
records from as late as August of 2011; Exhibit 67F contains records
from as late as October of 2011; and Exhibit 70F contains records from
as late as February of 2012. This material is therefore not material,
since it does not 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 [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).
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As to the records contained in Exhibits 55F-70F from before
September 8, 2010, and those from shortly thereafter identified above,
it does not appear that there is a reasonable possibility that any
of this evidence would have changed the outcome of the determination
here. These exhibits largely contain additional information about
Plaintiff’s skin condition and problems with abcesses and lesions,
and the ALJ was already aware of this condition and factored it into
his analysis, including his determination of Plaintiff’s residual
functional capacity (“RFC”). Nothing in the records pertaining to
Plaintiff’s hidradenitis suppurativa, or in those addressing her other
conditions such as her ingrown nail, establishes any new functional
limitations that needed to be included in the RFC. Likewise, the
records do not establish that Plaintiff has met Listing 8.06 or any
other listing. The Court further notes that, despite Plaintiff’s
argument to the contrary, because her claim was not denied at Step
Two, the issue is not whether her hidradenitis suppurativa, or any
other condition, constitutes a severe impairment at Step Two, but
rather whether these conditions affect her functional capacity. See
Salles v. Commissioner of Soc. Sec., 229 Fed. Appx. 140, 145 n.2 (3d
Cir. 2007); Lee v. Astrue, 2007 WL 1101281, at *3 n.5 (E.D. Pa. Apr.
12, 2007); Lyons v. Barnhart, 2006 WL 1073076, at *3 (W.D. Pa. March
27, 2006); S.S.R. 96-8p, 1996 WL 374184 (S.S.A.), at *5 (July 2, 1996).
See also 20 C.F.R. § 416.945(a)(2). As the Court just explained, there
is no evidence of additional limitations. Accordingly, none of the
exhibits, even those from the relevant time period, constitute material
evidence.
Regardless, even if the Court were to find any of the evidence
relating to the relevant time period to be material, Plaintiff has
made no attempt to show good cause for failing to incorporate these
documents into the administrative record prior to the ALJ’s decision.
The documents contained in Exhibits 55F-57F and 60F, as well as several
in the other exhibits, including 64F, 66F, and 67F, pre-date the
supplemental hearing before the ALJ on August 16, 2010, and certainly
were or should have been available at that time. There is no apparent
reason why Plaintiff did not submit them to the ALJ then. In fact,
at that August 16 hearing, Plaintiff requested more time to obtain
additional medical records, and the ALJ provided Plaintiff with 20
days to do so. (R. 40). However, although Plaintiff appears to have
provided Exhibit 54F at that time, as to the other records, she neither
provided the material from within the time period nor requested
additional time. This includes Exhibits 58 and part of 59, which
contain information within the 20-day window provided to Plaintiff
to submit such evidence. It was not until much later that Plaintiff
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Therefore, IT IS HEREBY ORDERED that plaintiff=s Motion for
Summary Judgment (document No. 14) is DENIED and defendant=s Motion
for Summary Judgment (document No. 18) is GRANTED.
s/Alan N. Bloch
United States District Judge
ecf:
Counsel of record
began providing the information to the Appeals Council. Even as to
the records that post-date the ALJ’s decision but that arguably relate
back to the relevant period, there is no indication that Plaintiff
attempted to inform the ALJ of the pending treatment to which those
records refer that might be relevant to his decision. Accordingly,
even if the material in Exhibits 55F-70F was material, a new evidence
remand would not be warranted.
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