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Connolly v. Colvin

United States District Court, D. Maine

April 22, 2015

GARY J. CONNOLLY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM DECISION [1]

JOHN H. RICH, III, Magistrate Judge.

The plaintiff in this Social Security Disability ("SSD") appeal[2] moves to admit new evidence (ECF No. 13) and contends that the administrative law judge wrongly failed to find that his impairment met the criteria of Listing 12.06, erroneously evaluated his credibility, improperly weighed the opinion of a treating psychiatrist, and wrongly failed to account for the opinion of a state-agency reviewing psychologist. I deny the motion and affirm the decision of the commissioner.

I. Motion to Admit Evidence

The plaintiff asks the court to add to the evidence in the administrative record before the court a disability rating issued to him by the Veterans' Administration almost nine months after the date of the administrative law judge's decision. Plaintiff's Motion to Admit New Evidence ("Motion") (ECF No. 13) at [2]. He argues that this evidence should be added to the record under 20 C.F.R. § 405.331(c) and Babb v. Astrue, No. 2:10-cv-49-DBH, 2010 WL 5465839 (D. Me. Dec. 29, 2010). Id. at [3]. As the plaintiff's attorney conceded at oral argument, the cited authority does not apply to the plaintiff's motion.

The cited regulation, 20 C.F.R. § 405.331, is entitled "Submitting evidence to an administrative law judge" and only applies to evidence that the claimant wants to add to the record "before the [administrative law judge's] hearing decision is issued." 20 C.F.R. § 405.331(c). As the plaintiff's motion itself acknowledges, that date, February 22, 2013, Record at 35, passed months before the document at issue was dated, November 14, 2013, and a few months shy of two years before his motion was filed, on December 2, 2014. Babb construes the regulation in circumstances where the claimant submitted the evidence in question fewer than five days before the date of the administrative hearing, 2010 WL 5465839, at *3, a period of time to which the regulation applies, although the court declined to consider the evidence in Babb for another reason.

The correct standard applicable to this motion is found in 42 U.S.C. § 405(g). The plaintiff must show that the new evidence is material and that there is good cause for his failure to incorporate it into the record earlier. In the case at hand, the plaintiff's application is for SSD, for which his eligibility ended on December 31, 2011. Record at 23. A finding by the Veterans' Administration on November 14, 2013, [3] that the plaintiff was disabled beginning on February 8, 2013, Motion at [2], is not material to the SSD claim. McDonald v. Social Sec. Admin. Comm'r, No. 1:09-cv-473-JAW, 2010 WL 2680338, at *2 (D. Me. June 30, 2010).[4] In addition, while there may have been "good cause" not to submit the document at issue before November 14, 2013, but see Lyons v. Barnhart, No. 03-47-B-W, 2004 WL 202837, at *4 (D. Me. Jan. 30, 2004) ("good cause" not shown merely by fact that evidence did not exist as time of hearing; otherwise, nearly all late-submitted evidence would be cognizable), the plaintiff offers no explanation for the period of more than a year after the document was provided to him before he sought to add it to the record. See, e.g., Black v. Astrue, No. 1:10-cv-175-JAW, 2011 WL 1226027, at *6 (D. Me. Mar. 29, 2011).[5]

The motion to add the Veterans' Administration document to the record is denied.

II. The Merits

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 was insured for purposes of SSD only through December 31, 2011, Finding 1, Record at 23; that through the date last insured, the plaintiff suffered from depression, post-traumatic stress disorder, and general anxiety disorder, impairments that were severe but which, considered separately or in combination, did not meet or medically equal the criteria of any impairment listed in Appendix 1 to 20 C.F.R. Part 404, Subpart P (the "Listings"), Findings 3-4. Id. at 23-25; that the plaintiff had the residual functional capacity ("RFC") to perform work at all exertional levels, but was unable to interact with the public, unable to perform other than simple tasks, able to understand, remember, and carry out simple, repetitive tasks, interact appropriately with coworkers and supervisors, and adapt to routine changes in the work setting, Finding 5, id. at 27; that, through the date last insured, the plaintiff was unable to perform any past relevant work, Finding 6, id. at 33; that, given his age (58 on the date last insured), at least a high school education, work experience, and RFC, use of the Medical-Vocational Rules in Appendix 2 to 20 C.F.R. Part 303, Subpart P (the "Grid") as a framework for decision-making led to the conclusion that, through the date last insured, there were jobs existing in the national economy in significant numbers that the plaintiff could have performed, Findings 7-10, id. at 33-34; and that, as a result, the plaintiff was not under a disability, as that term is defined in the Social Security Act, at any time from January 29, 2011, the alleged date of onset of disability, through the date last insured, Finding 11, id. at 34. 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 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. § 404.1520(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

The plaintiff's statement of itemized errors also implicates Step 3 of the sequential evaluation process. At Step 3, a claimant bears the burden of proving that his impairment or combination of impairments meets or equals a listing. 20 C.F.R. § 404.1520(d); Dudley v. Secretary of Health & Human Servs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the claimant's impairment(s) must satisfy all criteria of that listing, including required objective medical findings. 20 C.F.R. § 404.1525(c)(3). To equal a listing, the claimant's impairment(s) must be "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 404.1536(a).

A. Discussion

1. Listing ...


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