The ALJ examined the plaintiff's claim that his legs hurt whenever he sits, stands, or walks. (R. 12.) The ALJ noted that the claimant lives in a fifth floor walkup apartment and usually travels by taxicab. (R. 12.) The ALJ examined the plaintiff's report of calf pains for the possibility of intermittent claudication (limpness). (R. 14.) The ALJ cited the testimony of the medical expert that three medical examinations found that the plaintiff's lower limb peripheral pulses were normal, which is not consistent with intermittent claudication. (R. 14.) The ALJ concluded that "there appears to be no medical explanation for the lower limb symptoms... The testimony of the claimant is less than fully credible or consistent with the medical evidence." (R. 14, 16.)
The ALJ then concluded that, while the plaintiff had two "severe" impairments--the diabetes mellitus and the bilateral impingement syndrome--the plaintiff did not have any impairment that meets or equals, singly or in combination, any impairment in the Listing of Impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15-16.) The plaintiff nowhere explains why this finding was not supported by substantial evidence or how any condition or combination of conditions meets the criteria. Indeed, this finding is supported by substantial evidence in view, for example, of the medical evidence that this plaintiff's diabetes was controlled (R. 159, 169), and that, in November, 1993, the plaintiff was found to have only mild limitations in the motion of his right shoulder and the prognosis was found to be excellent. (R. 177-178.)
Since the plaintiff did not have a condition that met or equaled a listed impairment, it was necessary to determine the plaintiff's residual functional capacity for work activity. The ALJ considered the opinion of the impartial medical expert which gave the claimant's functional assessment as being able to stand and walk for six hours in an eight-hour work day, sit without limitation, and to lift and carry fifty pounds occasionally and twenty-five pounds regularly. (R. 14.) The ALJ noted that Dr. Spatt considered the medical record which indicated that a physician at St. Luke's/Roosevelt, based solely on a chart review, had limited standing to one hour at a time, and limited walking to a half hour at a time and two hours total. (R. 14.) The ALJ stated that, "Dr. Spatt saw nothing whatsoever in the same hospital records to limit either standing or walking, and specifically noted that there are no ongoing signs of pancreatic inefficiency." (R. 14.) The ALJ himself noted that the St. Luke's/Roosevelt doctor was not a treating physician for the claimant, but merely completed a chart review. (R. 14.)
The ALJ concluded from the evidence available that the claimant had recovered sufficient function from all of his proven medical conditions to permit light work activity with additional limitation in pushing and pulling and reaching for his left arm. (R. 15.) The ALJ did state that given the plaintiff's current medical condition, it would be doubtful that he could return to his former work as a garment worker where he had to lift boxes of dresses. (R. 15, 94-95.) However, the ALJ did find that the plaintiff's past work as a security guard would be within the limits of his functional capacity. As a security guard, the plaintiff spent half the time standing, and half the time sitting. (R. 15, 29.) Therefore, the ALJ found that since "the claimant is able to do one of his past relevant types of work, within twelve months of the onset date... [he] is not 'disabled.'" (R. 15.) With this determination, there was no need to reach the fifth step in the Commissioner's sequential analysis.
The plaintiff has not challenged any of the ALJ's findings or provided any explanation as to why they are not supported by substantial evidence. Given the detailed nature of the ALJ's questioning, the medical records, and the independent medical testimony, this Court finds that there is substantial evidence to support the Commissioner's finding that the plaintiff was not disabled and thus not entitled to DIB or SSI.
Under the Act, a court may order the Commissioner to consider additional evidence, "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). Thus, the plaintiff must show that the proffered new medical evidence is:
(1) new and not merely cumulative of what is already in the record, and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires in addition, a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide the claimant's application differently. Finally, claimant must show (3) good cause for [his] failure to present the evidence earlier."
Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal citations omitted); see Lisa v. Secretary of Health and Human Services, 940 F.2d 40, 44 (2d Cir. 1991) Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (quoting Tirado).
Defendant contends that the medical report of the arthroscopic surgery on plaintiff's left shoulder in June, 1994 is not new evidence. Defendant argues that "the report is not 'new' in the sense that the ALJ was aware of the plaintiff's left shoulder impairment and took this condition into consideration in deciding that the plaintiff had the residual functional capacity to perform light work." (Def.'s Reply Mem. at 5.) To the extent that this evidence is offered to show a limitation on the left shoulder, it is plainly not "new" because the ALJ was well aware of that and the medical expert took that limitation into account (R. 15, 38). The arthroscopic procedure on the left shoulder is "new" to the extent that it was corrective surgery performed in June, 1994, after the February, 1994 hearing before the ALJ.
However, to the extent that the medical records are "new," they are not material. Materiality requires that the new evidence be relevant to the claimant's condition during the time period for which benefits were denied. The period under examination spans from the alleged onset date through the date of the ALJ's decision. See 20 C.F.R. §§ 404.620, 416.330. The relevant period at issue in this case is from February 24, 1992 through February 25, 1994. Plaintiff's surgery is not material to the period under examination because it occurred in June, 1994.
Moreover, the concept of materiality requires a reasonable possibility that the new evidence would have influenced the Commissioner to decide the claimant's application differently. There is no such possibility here. The ALJ considered at length the bilateral shoulder impairment suffered by the plaintiff and the fact the plaintiff only had surgery performed on his right shoulder. There is nothing in the new medical records submitted by the plaintiff that provides any information about the plaintiff's condition that was not present in the administrative record before the ALJ, except for the fact that the left shoulder has now been the subject of corrective surgery. The June, 1994 records from St. Luke's/Roosevelt simply recount the arthroscopic procedure performed on the plaintiff's left shoulder. It is not conceivable that the new evidence presented by the plaintiff to this Court would have influenced the ALJ to find the plaintiff disabled. If anything, they indicate that the condition of the plaintiff's left shoulder, of which the ALJ and this independent medical expert were well aware, had now improved.
Accordingly, the new evidence submitted by the plaintiff does not constitute a basis for reversing or remanding the matter for further administrative proceedings.
For all of the reasons explained above, the defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) is granted.
DATED: JUNE 17, 1996
NEW YORK, NEW YORK
JOHN G. KOELTL
U.S. DISTRICT COURT JUDGE