United States District Court, D. Maine
CASY E. GLYNN Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION 
JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") appeal includes a motion to admit new evidence (ECF No. 15) and raises the questions of whether the administrative law judge erred in finding that the plaintiff's perianal impairment was not severe and in failing to give correct weight to the opinions of his treating physician. I deny the motion and affirm the commissioner's decision.
I. The Motion to Admit New Evidence
The plaintiff seeks to add to the administrative record a treatment record dated August 26, 2013, 11 months after the date of the administrative law judge's opinion, from a treating surgeon, which he characterizes as relating to the period before the date of opinion and demonstrating the severity of one of his alleged impairments. Plaintiff's Motion to Admit New Evidence ("Motion") (ECF No. 15) at -. The defendant opposes the motion. Defendant's Opposition to Plaintiff's Itemized Statement of Specific Errors and Motion to Admit New Evidence ("Opposition") (ECF No. 21) at 4-8.
The defendant correctly points out, Opposition at 4-5, that, since this report was not presented to the Appeals Council, before which the plaintiff's request for review of the administrative law judge's opinion was pending as of the date of the report, the standard of review is provided by 42 U.S.C. § 405(g): a showing that the new evidence is material and that there is good cause for the failure to incorporate it into the record earlier. McDonald v. Social Sec. Admin. Comm'r, No. 1:09-cv-473-JAW, 2010 WL 2680338, at *2-*3 (D. Me. June 30, 2010). As was the case in McDonald, the instant motion asks this court to
accept [the plaintiff's] new evidence and potentially overturn the Commissioner's decision based on evidence never presented to the Commissioner. Such an approach would be contrary to the structure of the [Social Security Act], which call[s] for judicial review of the Commissioner's decision. Obviously, the Commissioner cannot be faulted for failing to consider evidence not in existence at the time of the administrative hearing and not presented by [the plaintiff] in an administrative appeal.
Id. at *3.
In this case, as in McDonald, the motion must be treated as one for remand under sentence six of 42 U.S.C. § 405(g), and the plaintiff must show that the decision from which he appeals might reasonably have been different had the evidence at issue been considered by the commissioner. Id. at *2. The plaintiff here asserts that the treatment record that he now proffers "demonstrates that the Plaintiff's perianal pain status post-fistulotomy has persisted since and despite this surgery." Motion at . Contrary to the plaintiff's conclusory statement, this evidence does not necessarily demonstrate that the plaintiff's perianal pain before the date of the administrative law judge's decision "was a severe impairment at Step 2... and remains so." Id.
In fact, the proffered treatment note records that "[o]ne year ago he had a colonoscopy and rectal exam under anesthesia and there was no evidence of... perianal fistula." Attachment 1 to List of Proposed New Exhibits (ECF No. 15-1) at 1. Thus, his "couple of cycles of perianal pain and pressure... culminating in drainage" over the intervening year, id., if due to perianal fistula, a conclusion not reached by the examining physician who made the note, could only have been due to a new fistula that was not present before the date of the administrative law judge's decision, causing the pain of which he complained at the time of the note. Thus, it is not reasonably likely that this note would have caused the administrative law judge to reach a different conclusion.
The motion to admit new evidence is denied.
II. The Appeal
A. The Decision
In accordance with the commissioner's sequential evaluation process, 20 C.F.R. § 404.1520; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2015, Finding 1, Record at 17; that he suffered from anal fistula, hyperlipidemia, obesity, low back pain, knee pain, glaucoma, and marijuana abuse, none of which, considered separately or in combination, were severe, Finding 4, id. at 17; and that, therefore, he was not under a disability, as that term is defined in the Social Security Act, at any time through the date of alleged onset of disability, April 9, 2010, through the date of the decision, September 27, 2012, Finding 5, id. at 20. The Appeals Council declined to review the decision, id. at 1-3, making it the final determination of the commissioner, 20 C.F.R. § 404.981; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C § 405(g); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 ...