The opinion of the court was delivered by: Scullin, Senior Judge
In a Report and Recommendation dated July 23, 2009, Magistrate Judge Bianchini recommended that this Court affirm the Commissioner's decision and dismiss the complaint. See Dkt. No. 12. Plaintiff filed objections to those recommendations. See Dkt. No. 13.
Plaintiff's objections concern Magistrate Judge Bianchini's finding that the Appeals Council was correct not to remand the case based on new evidence that Plaintiff had submitted.*fn1
When reviewing the Commissioner's final decision, a court must determine whether the Administrative Law Judge ("ALJ") applied the correct legal standards and whether substantial evidence supports his decision. See Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)).
A three-part test governs analysis of whether newly submitted evidence forms a basis to remand. To warrant remand, a plaintiff is required to show that the newly submitted evidence is truly new and material; furthermore, she must demonstrate that there was good cause for her failure to submit it earlier. See 42 U.S.C. § 405(g); Lisa v. Sec'y of Dep't of Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991) (citations omitted); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (citations omitted).
Evidence is considered to be new where it is "'not merely cumulative of what is already in the record[.]'" Tirado 842 F.2d at 597 (quoting Szubak v. Secretary of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984)).
Evidence is considered to be material where it is "'both relevant to the claimant's condition during the time period for which benefits were denied and probative,' and also presents 'a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently.'" Fox v. Barnhart, 137 Fed. Appx. 395, 396, 2005 WL 1403289, *1 (2d Cir. 2005) (quoting Lisa v. Sec'y of Dep't of Health & Human Servs.,940 F.2d 40, 43 (2d Cir. 1991)).
"'Good cause' for failing to present evidence in a prior proceeding exists where . . . the evidence surfaces after the Secretary's final decision and the claimant could not have obtained the evidence during the pendency of that proceeding." Lisa, 940 F.2d at 44 (citations omitted).
In this case, Plaintiff submitted two letters regarding her medical condition: one from her treating physician, Dr. Vahe Keukjian, and one from her former work supervisor, Ms. Rita Bates-Murphy. Plaintiff submitted these letters to the Appeals Council after her administrative hearing on April 28, 2006, and asserted that the letters provided a basis for changing the ALJ's decision. Magistrate Judge Bianchini disagreed, finding that the Appeals Council had not erred when it denied Plaintiff's request for review of the ALJ's decision.
A. Letter of Dr. Vahe Keukjian
In his letter, dated October 23, 2006, Dr. Keukjian provided his opinion about what Plaintiff's condition was years before he treated Plaintiff. He averred, in pertinent part, that Plaintiff's condition began in the mid-to-late-1990s and that, by 2000, Plaintiff had begun to experience limitations from her diabetic condition.
The ALJ followed the correct legal standard when he gave Dr. Keukjian's opinion controlling weight "in assessing the claimant's condition as of April 5, 2005, but little or no weight in assessing the claimant's condition as of December 31, 2001." See Administrative Record ("AR") at 12.
This letter does not present a reasonable basis for the ALJ to change his opinion. Although Dr. Keukjian did not begin to treat Plaintiff until 2003, he offered his opinion about Plaintiff's medical condition from the mid-1990s until 2000 -- a period of time that predated his treating relationship with Plaintiff. See AR at 77-79, 85-87, 123. Moreover, as Magistrate Judge Bianchini found, there was no objective medical evidence in the record to support Dr. Keukjian's opinion regarding Plaintiff's condition during this time period. In the absence of such evidence, Dr. Keukjian's letter was speculative and, therefore, would not serve as a basis for the ALJ to change his opinion.
Furthermore, even if the Court were to assume that Dr. Keukjian's letter contained new facts, it was not material due to its speculative nature; and Plaintiff did not even attempt to show good cause why she had not submitted the letter during the pendency of the administrative process. Consequently, the Court ...