The opinion of the court was delivered by: Stein, District Judge.
Pursuant to an Order of Reference for a Report and
Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and
(C) by this Court, Magistrate Judge Andrew J. Peck issued a
Report and Recommendation dated December 22, 1998, recommending
that the Court grant defendant's motion for judgment on the
pleadings. Plaintiff subsequently filed written objections dated
January 25, 1999, pursuant to Fed.R.Civ.P. 72(b) and
28 U.S.C. § 636(b)(1)(C).
After a de novo review of Magistrate Judge Peck's Report and
Recommendation dated December 22, 1998, and after reviewing
plaintiff's objections, and after determining that the new
medical evidence submitted with plaintiff's objections (i.e.,
the letter of Dr. Daras dated January 14, 1999), was not part of
the administrative record, and is conclusory.
IT IS HEREBY ORDERED that the Report and Recommendation of
Magistrate Judge Peck is adopted by this Court, and that
defendant's motion for judgment on the pleadings is granted.
ANDREW J. PECK, United States Magistrate Judge.
To The Honorable Sidney H. Stein, United States District Judge:
Pro se plaintiff Jeanette Casiano brings this action pursuant
to § 205(g) of the Social Security Act (the "Act"),
42 U.S.C. § 405(g), challenging the final decision of the Commissioner of
Social Security (the "Commissioner") to deny her disability
benefits. The Commissioner has moved for judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c).
For the reasons set forth below, I recommend that the Court
grant the Commissioner's motion for judgment on the pleadings.
On October 31, 1994, Casiano filed an application for Social
Security Supplemental Security Income ("SSI") benefits.
(Administrative Record filed by the Commissioner [hereafter,
"R."], at 40-45.) Casiano's application was denied on February 9,
1995, and again on reconsideration on March 3, 1995. (R. 55-58,
61-66.) At Casiano's request, a hearing was held before an
administrative law judge ("ALJ") on November 2, 1995. (R. 27-39.)
Casiano was represented by an attorney from the Legal Aid Society
at that hearing. (E.g., R. 29.) On February 15, 1996, the ALJ
issued his decision finding that Casiano was not disabled. (R.
13-20 .) The ALJ's decision became the final decision of the
Commissioner when the Appeals Council denied Casiano's request
for review on August 21, 1997. (R. 7-9.) This action followed.
In a proceeding to judicially review a final decision of the
plaintiff bears the burden of establishing the existence of a
disability. See, e.g., Aubeuf v. Schweiker, 649 F.2d 107, 111
(2d Cir. 1981) ("It is well established that the burden of
proving disability is on the claimant."); Dousewicz v. Harris,
646 F.2d 771, 772 (2d Cir. 1981); Parker v. Harris,
626 F.2d 225, 231 (2d Cir. 1980); Adams v. Flemming, 276 F.2d 901, 903
(2d Cir. 1960) ("The controlling principles of law upon
[judicial] review [of a Social Security denial] are well
established . . ., namely, `the burden of sustaining the claim
for benefits is on the claimant' and `The findings of the Social
Security Agency are final and binding if there is a substantial
basis for them.'"); Ortiz v. Shalala, 93 Civ. 3561, 1994 WL
673630 at *1 (S.D.N.Y. Dec.1, 1994); Morton v. Heckler,
586 F. Supp. 110, 111 (W.D.N.Y. 1984); 2 Harvey L. McCormick, Social
Sec. Claims & Proc. § 731 (4th ed. 1991) ("In a proceeding to
review judicially a final decision of the [Commissioner], the
plaintiff has the burden of establishing the correctness of [her]
contention. The procedure is akin to that in a regular civil
appeal under the Fed. Rules Civ.Proc. . . .") (fn.omitted).
Here, Casiano claims that the Court should grant her SSI
disability because of her "numerous physical symptoms, medical
history, office visits, consultations, ambulatory services,
diminishing health, medical diagnosis and prognosis of doctors
(during the last fourteen years.)" (Casiano Aff. ¶ 2.) Casiano
does not point to any specific testimony or evidence which she
believes the ALJ overlooked, unjustly weighted, or otherwise
should have considered, although by submitting new evidence that
she is currently disabled, as discussed at pages 7-11 below,
Casiano implicitly acknowledges that she must do more than state
that the ALJ was wrong. Casiano's allegations are overly broad
and conclusory, and without more, are not sufficient to defeat
the Commissioner's motion for judgment on the pleadings. E.g.,
Counterman v. Chater, 923 F. Supp. 408, 414 (W.D.N.Y. 1996)
(court rejects plaintiff's allegations that the ALJ "failed to
consider [minor claimant's] parent's testimony as medical
evidence, failed to consider all the medical evidence, failed to
consider [child's] mother's testimony with respect to the IFA
analysis, and failed to render his decision based upon the record
as a whole," on the ground that they are "broad and conclusory.
She offers no specific testimony or evidence which she believes
that the ALJ overlooked and should have considered."); Steiner
v. Dowling, 914 F. Supp. 25, 28 n. 1 (N.D.N.Y. 1995) (rejecting
plaintiff's argument that the State's social security regulations
are too restrictive as "neither sufficiently explained nor
seriously advanced by plaintiff's — providing only a single
conclusory paragraph in their Statement of Undisputed Facts . .
., and in their Attorney's Affirmation. . . ."); see, e.g.,
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (district
court correctly granted defendants' 12(b)(6) motion to dismiss
plaintiff's "`unsupported, speculative, and conclusory'"
retaliation conspiracy allegations); Kern v. City of Rochester,
93 F.3d 38, 44 (2d Cir. 1996) (plaintiff's "assertions are wholly
conclusory and are not sufficient to defeat a . . . motion to
dismiss"); De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d
Cir. 1996) ("`A complaint which consists of conclusory
allegations unsupported by factual assertions fails even the
liberal standard of Rule 12(b)(6).'"); Butler v. Castro,
896 F.2d 698, 700 (2d Cir. 1990) ("A conclusory allegation . . .
without evidentiary support or allegations of particularized
incidents, does not state a valid claim.").*fn1
B. The Commissioner's Decision Was Supported By Substantial
Even if Casiano's conclusory allegations are sufficient to
state a claim, defendant's motion for judgment on the pleading
should be granted because the Commissioner's decision as
supported by substantial evidence. The applicable law regarding
judicial service of the Commissioner's denial of SSI benefits is
set forth in Tejada v. Callahan, 993 F. Supp. 193, 199-200
(S.D.N.Y. 1998) (Stein, D.J. & Peck, M.J.) (and authority cited
therein), and will not be repeated herein.
Using the five-part test set forth in 20 C.F.R. § 404.1520 &
416.920, the ALJ found that Casiano could do sedentary work, and
therefore did not satisfy the fourth factor requirement that
Casiano be unable to perform her past work, in this case as a
receptionist. (R. 17-20.)*fn2 See, e.g., Tejada v. Callahan,
993 F. Supp. at 200 (& cases cited therein). Specifically the ALS
found that Casiano
has the residual functional capacity to perform
work-related activities except for work involving
heavy lifting and carrying and extensive bending
(20 C.F.R. [§] 416.945). [Casiano's] past relevant work
as a receptionist did not require the performance of
the work[-]related activities precluded by the above
limitations (20 C.F.R. [§] 416.965). [Casiano's]
impairments do not prevent [her] from performing her
past relevant work.
There is substantial evidence to support the ALJ's
determination that Casiano was able to perform sedentary work and
therefore was not disabled. Two of Casiano's treating physicians,
Dr. Perez, Casiano's physical therapist, and Dr. Tamarin, who
evaluated Casiano on October 26, 1995, stated that "work on a
regular and continuous basis [would not] cause [Casiano's]
condition to deteriorate." (R. 136, 153.) Dr. Tamarin also found
that Casiano could "sit [for] up to 45 minutes continuously and
for a total of 4 hours in an 8-hour workday[;] stand up to 30
minutes continuously and for a total of 6 hours in an 8-hour
workday [and;] walk up to 30 minutes continuously and for a total
of 1 hour in an 8-hour workday." (R. 134.) Dr. Kleiman, another
of Casiano's treating physicians, assessed that Casiano could
"sit [for] up to 5-6 hours continuously and for a total of 5-6
hours in an 8-hour workday[;] stand up to 2 hours continuously
and for a total of 4 hours in an 8-hour workday [and;] walk up to
20-30 minutes continuously and for a total of 1 hour in an 8-hour
workday." (R. 158.) Dr. Gevirtz, who was Casiano's then most
physician, stated on October 27, 1995 that Casiano could
continuously carry up to five pounds and lift up to ten pounds,
frequently carry up to ten pounds and lift up to twenty pounds,
and occasionally carry and lift up to fifty pounds. (R. 142.)
Dr. Graham, a consultative doctor, assessed Casiano as having
back pain "with mild functional deficit," but found that Casiano
was "able to sit, stand, walk, carry, handle objects, hear, speak
and travel. Lifting is limited by back pain." (R. 109.) Dr. Seo,
another consultative doctor, found in January 1995 that Casiano
could "hyperflex" and "hyperextend" her arms without pain. (R.
121.) He also found that Casiano's reflexes were rated one plus,
she had "no sensory defect," her "fine motor coordination of the
hands" was "normal," and her "[m]uscle strength of both hands
[was] grade 5/5." (R. 121-22.) Significantly, Dr. Seo assess that
Casiano's prognosis was "fair," though "functionally, due to
above condition, [Casiano] may have difficulty bending, lifting,
and carrying heavy objects." (R. 122.)
Further, none of the MRIs taken between 1994 and 1995 showed
that Casiano had a severe back problem. An MRI taken on May 3,
1995, showed that Casiano had only "[m]ild degenerative changes
at L5-S1 [and][n]o evidence of neurofibromas." (R. 126; 147;
248.) Another MRI, taken on September 7, 1995, showed a "[n]ormal
MRI of the cervical spine." (R. 148,247.)
Casiano's abilities to lift up to ten pounds, sit for six hours
a day and walk and stand for an hour a day qualify Casiano for
sedentary work under 20 C.F.R. § 416.967(a) & 404.1567(a).
Accordingly, this Court finds that there is substantial
evidence in the record to support the ALJ's determination that
Casiano had the functional capacity to perform her prior work.
II. THE COURT SHOULD NOT REVIEW THE NEW EVIDENCE CASIANO
SUBMITTED BECAUSE IT WAS NOT PART OF THE ADMINISTRATIVE
RECORD, NOR SHOULD THE COURT REMAND THIS ACTION TO THE
COMMISSIONER FOR CONSIDERATION OF THE NEW EVIDENCE SINCE IT
IS NOT RELEVANT TO CASIANO'S CONDITION DURING THE TIME PERIOD
FOR WHICH SSI BENEFITS WERE DENIED
In support of her appeal, Casiano submitted three letters from
Doctors R. Alexandrescu, Guadolope Gonzalez and Michael Daras,
all of which are dated October 1998 — almost three years after
the administrative hearing — which state that Casiano cannot work
at present. (Casiano Aff. ¶ 2 & Exs. A-C: 10/8/98 Dr. Daras
letter, 10/7/98 Dr. Alexandrescu letter & 10/5/98 Dr. Gonzalez
letter.) These reports are not part of the administrative record.
Evidence not contained in the administrative record may not be
considered when reviewing the findings of the Commissioner. See,
e.g., 42 U.S.C. § 405(g) ("The court shall have power to enter,
upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security. . . ."); Carnevale v. Gardner,
393 F.2d 889, 891 n. 1 (2d Cir. 1968) (district court correctly
refused to consider materials not properly in administrative
record); Castro v. Acting Comm'r of Soc. Sec., 97 Civ. 5364,
1998 WL 846749, at 10 n. 11, 1998 U.S. Dist. LEXIS 18973 at *30
n. 11 (S.D.N.Y. Nov. 5, 1998) (new evidence not considered
because "this court is limited in its review to the record before
the Commissioner"), report & rec. adopted by 1998 WL 846749,
1998 U.S. Dist. LEXIS 18969 (S.D.N.Y. Dec. 2, 1998); Grubb v.
Chater, 992 F. Supp. 634, 637 n. 3 (S.D.N.Y. 1998) (new evidence
not considered because "[a] court's review of the Commissioner's
decision is to be based upon the administrative
record"); Madrigal v. Callahan, 96 Civ. 7558, 1997 WL 441903 at
*7 (S.D.N.Y. Aug.6, 1997) ("in reviewing decisions of the
Commissioner, this Court cannot consider new evidence not made
part of the administrative record"); Quinones v. Chater, 94
Civ. 6249, 1996 WL 39301 at *3 (S.D.N.Y. Jan.31, 1996) ("Evidence
not contained in the administrative record may not be considered
when reviewing the findings of the Commissioner."); Chiappa v.
Secretary of Dep't of Health, Educ. & Welfare, 497 F. Supp. 356,
362 n. 4 (S.D.N.Y. 1980) ("letters, not produced at the hearing,
may not be considered in determining whether the record is
supported by substantial evidence"). The Court therefore will not
consider the three October 1998 doctors' letters as additional
evidence of Casiano's disability.
Although the Court cannot consider new evidence, this Court may
remand to the Commissioner to consider new 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). The Second Circuit has summarized the three-part showing
required by this provision as follows:
`[A]n appellant must show that the proffered 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 Secretary to
decide claimant's application differently. Finally,
claimant must show (3) good cause for her failure to
present the evidence earlier.'
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991) (citations
omitted) (quoting Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir.
1988)); accord, e.g., Lisa v. Secretary Dep't of Health & Human
Servs., 940 F.2d 40, 43 (2d Cir. 1991); Hursey v. Apfel, No.
97-CV-4757, 1998 WL 812585 at *4 (E.D.N.Y. April 27, 1998);
Tracy v. Apfel, No. 97-CV-4357, 1998 WL 765137 at *4 (E.D.N Y
April 22, 1998); Madrigal v. Callahan, 1997 WL 441903 at *7-8;
Counterman v. Chater, 923 F. Supp. 408, 414 (W.D.N.Y. 1996);
Quinones v. Chater, 1996 WL 39301 at *3; Rosado v. Sullivan,
805 F. Supp. 147, 157 (S.D.N.Y. 1992); Timmons v. Sullivan, 88
Civ. 6612, 1989 WL 156300 at *8-9 (S.D.N.Y. Dec.19, 1989).
In this case, the new doctors' evaluations are not material to
Casiano's claim, because they evaluate Casiano's claim as of
October 1998, more than a year after the Commissioner rendered
his final decision in this action on August 21, 1997 (R. 7-8),
and therefore are not relevant to Casiano's condition during the
time period for which benefits were denied. See, e.g., Hursey v.
Apfel, 1998 WL 812585 at *4 ("To be material, [new] records must
be relevant to the claimant's condition during the period for
which benefits were denied and must raise a reasonable
possibility that the new evidence would have influenced the
decision maker to decide the claim differently."); Grubb v.
Chater, 992 F. Supp. at 637 n. 3 ("The Commissioner's decision
that plaintiff was not disabled covered the period up to the date
when the decision was issued by the ALJ — April 26, 1995. The new
evidence bears dates from June 1996 through March 1997 and these
reports do not appear to relate their findings back to the period
in question. Therefore, the plaintiff's new evidence cannot be
considered by this Court."); Counterman v. Chater, 923 F. Supp.
at 414 ("the [new] evidence submitted by plaintiff fails to meet
the standards set forth in Jones" for remand to consider new
evidence because, inter alia, "it does not appear relevant to
[claimant's] condition during the time period for which benefits
were denied"); Rosado v. Sullivan, 805 F. Supp. at 157 (standard
for remand to consider new evidence not met because "plaintiff .
. . 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
[the date of the ALJ's decision]"); Timmons v. Sullivan, 1989
WL 156300 at *9 (plaintiff failed to meet standard for remand to
consider new evidence because, inter alia, "[t]he three medical
reports submitted, solicited by [plaintiff's] counsel just prior
to the filing of [plaintiff's] brief, are not material to the
evaluation of [plaintiff's] claim in that they are not relevant
to [plaintiff's] condition during the time period for which
benefits were denied. These reports evaluate [plaintiff's]
condition as of the summer of 1989 a full year to year and
one-half later than the [Commissioner's] final decision in this
action rendered on March 19, 1988.").
Accordingly, the Court need not order the Commissioner to
consider this additional evidence. Casiano may, however, file a
new application for SSI benefits with the Social Security
Administration based upon her treating physician's opinions that
she is currently unable to work.
For the reasons set forth above, upon review of the
administrative record, I find that the Commissioner has presented
substantial evidence that Ms. Casiano was "not disabled" within
the meaning of the Social Security Act and had the residual
functional capacity to perform her past work. The Court cannot
consider, and need not remand for the Commissioner's
consideration, the new medical evidence presented by Casiano.
Accordingly, I recommend that the Court grant the Commissioner's
motion for judgment on the pleadings.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from receipt of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable Sidney
H. Stein, 500 Pearl Street, Room 1010, and to the chambers of the
undersigned, 500 Pearl Street, Room 1370. Any requests for an
extension of time for filing objections must be directed to Judge
Stein. Failure to file objections will result in a waiver of
those objections for purposes of appeal. Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); IUE AFL — CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),
cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38
(1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);
Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied,
506 U.S. 1038, 113 S.Ct. 825, 121 L.Ed.2d 696 (1992); Small v.
Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir.
1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).