about the M.R.I. report, and is anxious to have another opinion regarding the management of his problem." Tr. at 201.
While discussing Sapienza's difficulty in falling asleep, Dr. Shafer indicated that he had been treated "with infrared and ultrasound and he did obtain some relief because he suffers from a stress disorder having flashbacks." Tr. at 323. On the other hand, Dr. Moin's report stated that Sapienza did not display behavior indicative of a significant psychiatric disorder.
Except for these isolated statements, the record contains no evidence that Sapienza suffered from a psychological disability or is clinically depressed. Indeed, Sapienza failed to set forth any such claims at the administrative level, despite being represented by counsel. C.f. Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984) (where claimant is unrepresented by counsel at proceedings before ALJ, duty evolves to probe into relevant facts) (citing Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972)). In sum, Sapienza's statement that he was disappointed and depressed about the result of his examination is insufficient to support a basis for finding a psychological impairment, especially when, as noted above, none was claimed.
Sapienza asserts that in the event that this Court does not reverse the decision of the ALJ, the case should be remanded for consideration of new and material evidence by the Secretary. On June 2, 1994, Sapienza filed this so-called new evidence consisting of an affidavit by psychologist Dr. Rubin which states that he has treated Sapienza since June 29, 1993. Dr. Rubin indicates that Sapienza currently suffers from psychological impairments which prevent him from working but that he is slowly progressing and may be able to work again in the future.
The Social Security Act provides that a court may remand a case to the Secretary for the consideration of additional evidence, "but only upon a showing that there is new evidence which is material and there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g) (1988); see also Mongeur, 722 F.2d at 1038; Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). However, in his application for disability benefits, Sapienza did not claim psychological impairments as a cause of his disability and it was thus clearly not material to the claim he had filed. Indeed, Dr. Rubin's diagnosis is based upon examinations which occurred nearly three years after the accident. This fact supports an inference that Sapienza did not even seek psychological counseling or evaluation until well after the hearing. It follows that this alleged impairment is essentially a new claim. This is especially true since, although his treatment had commenced prior to his appeal to the Secretary, no mention was made in that appeal of any psychological treatment by Dr. Rubin. Tr. at 333-39. In any event, Sapienza has failed to demonstrate good cause for not presenting this evidence to the Secretary earlier. Sapienza is free to pursue a new claim in the future.
For the reasons set forth above, the decision of the Secretary is affirmed, Sapienza's request for costs is denied, and the Clerk of Court is ordered to close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
August 11, 1995
John E. Sprizzo
United States District Judge