general array of documents seen in these types of cases.
Turning to plaintiff's final contention concerning the 1990 Malinowska-Pabis report of examinations undertaken for the purposes of this action, I conclude it must be rejected as well. First, we should dispose of plaintiff's attempt to characterize Malinowska and Pabis as "treating sources." (Id. at 45). Nothing in the record suggests that these individuals or anyone else at the Saint Mark's Place Institute had an ongoing physician-patient relationship with plaintiff at any time pertinent to their report. Indeed, as plaintiff's Memorandum elsewhere states, the Malinowska-Pabis report "was based upon an extensive consultative examination that was completed over the course of three weeks, and, for which Ms. Rosado received appointments on five separate days." (Id. at 44; emphasis added). The report itself states, "The patient was only examined and she was advised to seek treatment for depression." (Ex. A to id.).
The Act provides that a court may order the Secretary to consider evidence not presented at the administrative proceedings, "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." 42 U.S.C. § 405(g). The claimant must show that (1) the proffered new evidence is "'new' and not merely cumulative of what is already in the record"; (2) it is "material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative"; and (3) there was "good cause for [the] failure to present the evidence earlier." Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). "The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently." Id.
Plaintiff proffers her limited education and inability to read or write English as well as her "serious emotional disorder and extremely low intellectual functioning abilities" as "good cause" for her failure to obtain this evidence not until two years after the hearing. (Plaintiff's Memorandum at 48). Inasmuch as the record indicates that plaintiff was familiar with the SSI application process and had sought advice and reports concerning the instant application, it is not clear that she was "hindered" by her pro se status from raising these alleged problems. Jones v. Sullivan, 949 F.2d 57, 61 (2d Cir. 1991); see also Lisa v. Secretary of Health & Human Services, 940 F.2d 40, 46 (2d Cir. 1991). However, even if we assume that plaintiff's pro se status constituted "good cause" for these purposes, plaintiff still has not made a sufficient showing that the proffered evidence is either "probative" or "relevant to [her] condition during the time periods for which benefits were denied," i.e., on or prior to September 26, 1988. Tirado v. Bowen, 842 F.2d at 597. The Malinowska-Pabis report's reasons for applying its diagnosis of "dysthymia" to the pre-September 26, 1988 period are speculative and question-begging. The report states, "The patient['s] depression is chronic not major, which might be related to her medical problems and difficult marriage. Thus she must have been depressed for four to five years." Insofar as plaintiff separated from her husband around 1979 and was presumably in a "difficult" domestic situation before then,
and, as the record demonstrates, there are reasons to doubt the severity of plaintiff's medical problems prior to September 26, 1988, there is no basis for concluding that plaintiff "must have been depressed" for "four or five years."
With respect to the report's other diagnosis, "low intellectual functioning" or "mild mental retardation," which is based on plaintiff's IQ scores on the Wechsler Adult Intelligence Scale-Revised, there is likewise an insufficient basis for finding the new evidence "relevant to [her] condition" on or prior to September 26, 1988. The authors conclude that plaintiff's condition is "chronic" and "most likely a life long situation." If all this means is that plaintiff is likely to have "functioned" at a "low intellectual" level during earlier periods in her adult life, however, the conclusion has no particular bearing on whether she suffered from a severe impairment for purposes of step two, for it is quite clear it had only a minimal, if any, effect on her ability to work. If the report means to conclude that plaintiff was mildly mentally retarded on or before September 26, 1988, however, such a conclusion appears tenuous on the basis of one examination, taken two years later, when plaintiff was 64 years old, the results of which are themselves only barely and partly in the relevant range of scores. Under these circumstances, the report, "solicited by [plaintiff's] counsel just prior to the filing of [plaintiff's] brief, [is] not material to the evaluation of [plaintiff's] condition during the time period for which benefits were denied." Timmons v. Sullivan, No. 88 Civ. 6612 (RWS), 1989 U.S. Dist. Lexis 15132 at *25 (S.D.N.Y. Dec. 18, 1989) (denying remand for new evidence evaluating plaintiff's condition during a period over a year later than the Secretary's final decision). This is especially clear in the instant case in view of the absence of evidence in the existing record indicating any significant limitation on plaintiff's mental ability to perform work-related functions. See Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) ("The Secretary is entitled to rely not only on what the record says, but also on what it does not say.") It is clear on the record that plaintiff, even assuming a low intelligence level, was able to carry on the basic functions needed to work and to perform all the daily tasks of living. Had such "new" evidence been presented to the ALJ two years after plaintiff's hearing, there is not a "reasonable possibility" that he would have reached a different result on plaintiff's disability for the relevant period. Tirado v. Bowen, 842 F.2d at 597.
For the foregoing reasons I respectfully recommend that your Honor deny plaintiff's motion and grant defendant's, and affirm the decision of the Secretary.
The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Richard Owen, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Owen. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam). See generally Fed. R. Civ. P. 6(a), 6(e).
Dated: New York, New York
April 15, 1992
SHARON E. GRUBIN
United States Magistrate Judge