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Mary Hickson, Pro Se v. Michael J. Astrue

March 22, 2011


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


Pro se*fn1 plaintiff Mary Hickson appealed a decision of the Commissioner of Social Security (the "Commissioner") which found that she is not disabled under the Social Security Act (the "Act") and therefore not entitled to Supplemental Security Income ("SSI"). On October 9, 2009, pursuant to Fed. R. Civ. P. 12(c), the Commissioner moved for judgment on the pleadings, seeking affirmation of that determination. For the reasons set forth below, the Commissioner's motion is granted.


Plaintiff was born on March 14, 1966 in Brooklyn, New York and has a high school education. (Administrative Record ("A.R.") 19, 81.) Her past jobs include hairdresser, custodian, cashier, receptionist/office aide, and security guard. (Id. at 78, 94.) Plaintiff stopped working on May 24, 2006, as a result of lower back pain and muscle spasm. (Id. at 77.)

Plaintiff filed an application for SSI benefits on June 11, 2007, alleging a continuous disability due to lower back pain, muscle spasm, sciatica, arthritis, pain in both shoulders, and tingling in her arms, legs, and feet dating back to June 1, 1989. (Id. at 59, 77, 91-92, 110.)

Plaintiff testified at a hearing held before an Administrative Law Judge ("ALJ") on October 27, 2008. (A.R. at 9.) By a decision dated December 2, 2008, the ALJ concluded that plaintiff was not disabled within the meaning of the Act. (Id.) On April 2, 2009, the ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review. On May 11, 2009, plaintiff filed the instant action seeking judicial review of the denial of benefits. On October 9, 2009, the Commissioner moved for judgment on the pleadings. In opposition to defendant's motion, plaintiff submitted a cover letter, along with certain medical documents not contained in the Administrative Record. (Docket Entry No. 12.) The defendant replied on December 31, 2009.


1)New Evidence Standard

To obtain a remand based on evidence presented to the court that was not before the Commissioner, plaintiff must meet the requirements of the "new evidence" rule by showing: (1) that the evidence is "new and not merely cumulative of what is already on the record;" (2) that the evidence is "material," meaning that it is "both relevant to the claimant's condition during the time period for which benefits were denied and probative;" and (3) "good cause for failure to present the evidence earlier." Jones v. Sullivan, 949 F.2d. 57, 60 (2d Cir. 1991). The plaintiff has failed to make such a showing.

As an initial matter, the documents submitted by plaintiff in opposition cannot be construed as medical evidence. The three-page "Appointment/Instruction Sheet Summary" plaintiff received from her physician on September 29 and November 10, 2009 merely lists appointments for blood work and an X-Ray. (Docket Entry No. 12.) Moreover, this "evidence" is not material because it does not illustrate the depth of her condition, enhance what is already on the record, nor relate to the relevant time period, which is June 11, 2007 (the date of the SSI claim) through December 2, 2008 (the date of the ALJ's decision).*fn2 Finally, even if the "evidence" were material, plaintiff makes no showing of good cause for failing to present the "evidence" earlier. Therefore, plaintiff does not satisfy the new evidence rule.

2)Substantial Evidence Determination

A district court, reviewing the final determination of the Commissioner, must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998). The former determination requires the court to ask whether "the claimant has had a full hearing under the [Commissioner's] regulations and in accordance with the beneficent purposes of the Act." Echevarria v. Sec'y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal quotations omitted). The latter determination requires the court to ask whether the decision is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

ALJs must adhere to a five-step inquiry to determine whether a claimant is disabled under the Social Security Act as set forth in 20 C.F.R. § 404.1520. If at any step, the ALJ finds that the claimant is either disabled or not disabled, the inquiry ends there. First, the claimant is not disabled if he or she is working and performing "substantial gainful activity." 20 C.F.R. § 404.1520(b). Second, the ALJ considers whether the claimant has a "severe impairment," without reference to age, education or work experience. Impairments are "severe" when they significantly limit a claimant's physical or mental "ability to conduct basic work activities." 20 C.F.R. § 404.1520(c). Third, the ALJ will find the claimant disabled if his or her impairment meets or equals an impairment listed in Appendix 1. See 20 C.F.R. § 404.1520(d).

If the claimant does not have a listed impairment, the ALJ makes a finding about the claimant's "residual functional capacity" in steps four and five. 20 C.F.R. § 404.1520(e). In the fourth step, the claimant is not disabled if he or she is able to perform "past relevant work." 20 C.F.R. § 404.1520(e). Finally, in the fifth step, the ALJ determines whether the claimant could adjust to other work existing in the national economy, considering factors such as age, education, and work experience. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(f). At this fifth step, the burden shifts to the ...

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