KENNETH S. McHARGH, Magistrate Judge.
This case is before the Magistrate Judge pursuant to Local Rule 72.2(b). The issue before the undersigned is whether the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Dana Cowan's ("Plaintiff") applications for Supplemental Security Income benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., and for a Period of Disability and Disability Insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, is supported by substantial evidence and, therefore, conclusive.
For the reasons set forth below, the Magistrate Judge recommends that the decision of the Commissioner be AFFIRMED.
Plaintiff filed applications for Disability Insurance benefits and Supplemental Security Income benefits around April 25, 2011. (Tr. 11, 238-44, 245-50). Plaintiff alleged he became disabled on August 1, 2003, due to suffering from leg and spine issues. (Tr. 238, 245, 268). The Social Security Administration denied Plaintiff's applications on initial review and upon reconsideration. (Tr. 169-75, 178-84).
At Plaintiff's request, an administrative law judge ("ALJ") convened an administrative hearing on November 30, 2012, to evaluate his applications. (Tr. 26-126). Plaintiff, represented by counsel, appeared and testified before the ALJ. (Id). A vocational expert ("VE") also appeared and testified. (Id.).
On December 20, 2012, the ALJ issued a decision finding Plaintiff was not disabled. (Tr. 11-20). After applying the five-step sequential analysis,
Plaintiff was born on September 18, 1963, and was 39-years-old on the alleged disability onset date and 49-years-old at the time of the ALJ's decision. (Tr. 19, 238). Accordingly, he was considered a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1563(c), 416.963(c). Plaintiff has past relevant work as a forklift driver and material handler. (Tr. 106).
On October 17, 2002, Plaintiff sought treatment in the emergency department for a right foot injury. (Tr. 435-46). Plaintiff reported that an extension blade had hit the side of his right foot. (Tr. 437). X-rays were taken and Plaintiff was diagnosed with a contusion or abrasion on his ankle as a result of a work-related accident. (Tr. 437, 442). An Ace wrap was placed on Plaintiff's right ankle and his abrasion was cleaned and bandaged. (Tr. 437). That same day, Plaintiff was cleared to return to work, but was prohibited from performing tasks that required the use of his right leg for two days. (Tr. 442).
From December 2005 through August 2008, Plaintiff sought treatment at St. Vincent Charity Hospital for various acute conditions. (Tr. 320-402). Treatment notes from this period did not reflect significant musculoskeletal abnormalities. (Tr. 340, 347, 349-50, 356, 367). It does not appear that Plaintiff complained of pain in his right lower extremity. (Id.).
Plaintiff did not seek treatment for his foot injury until June 2008, when he presented to chiropractor James O'Reilly. (Tr. 479-81). Plaintiff voiced complaints of right foot and leg pain with occasional numbness that traveled into his toes. (Tr. 479). He claimed that he experienced spasms and swelling in his right foot and could not stand on his feet for extended periods. Plaintiff stated that his symptoms were the result of a work-related injury in October 2002 where a piece of steel for a forklift shot toward him and crushed his right foot and leg. Plaintiff reported that x-rays taken soon after the accident, however, were negative for fracture or dislocation. Plaintiff did not undergo therapy or further treatment for the injury. (Id.). During a physical examination, O'Reilly observed that Plaintiff had a mild limp favoring the right foot. (Tr. 480). There was moderate tenderness to palpation of the dorsum and plantar aspect of the right foot, with slight hypertonicity and mild swelling. All movements of the foot and ankle were limited and caused pain. (Id.). O'Reilly prescribed treatment twice per week for approximately eight weeks. (Tr. 475, 480).
Plaintiff underwent 18 chiropractic treatments through October 15, 2008. (Tr. 455-74). At each session, O'Reilly reported that Plaintiff was making "consistent" progress. (Id.). By September 2008, Plaintiff told O'Reilly that he experienced improvement. (Tr. 457).
On October 14, 2008, Alan Wilde, M.D., undertook an occupational medicine consultation as part of Plaintiff's application for workers' compensation. (Tr. 404-06). Plaintiff reported to Dr. Wilde that he was injured in October 2002 when a forklift extension dropped on his right shin. (Tr. 404). Plaintiff claimed that x-rays showed all of the bones in the region of the metatarsal heads were broken. He reported that he was treated with an ACE bandage and could not walk for three to four weeks, even though no cast, brace, or splint was used. (Id.).
In contrast, Dr. Wilde noted that medical records showed only a contusion, an abrasion, and ecchymosis, and Plaintiff's range of motion had remained intact. (Tr. 404-05). A physical examination performed by Dr. Wilde showed that Plaintiff tended to hold the right large toe in dorsiflexion and he could not stand on the toes of his right foot. (Tr. 405). There was no measurable atrophy of the calf or swelling of the forefoot. There was no scarring on the ankle or tenderness where Plaintiff indicated the injury had occurred. (Id.). Plaintiff had some weakness in extending his toes and diminished sensation in the plantar aspect of the toes. (Tr. 405-06). Dr. Wilde concluded there was no evidence of residual injury from the accident and treatment for injury arising from the accident was not necessary. (Tr. 406).
In a letter dated April 27, 2010, O'Reilly indicated that Plaintiff was denied a consultation with a foot specialist due to Dr. Wilde's October 2008 report. (Tr. 454). O'Reilly stated that Plaintiff had "reported to several different doctors" that his right foot was broken in 2002. O'Reilly disagreed with Dr. Wilde's report that Plaintiff was asymptomatic. O'Reilly wrote that Plaintiff had a marked limp and related weakness in the lower right leg, which could "be directly attributed to a severe foot injury in which several bones were broken." However, O'Reilly did not have medical records from the emergency room following the injury. The chiropractor advocated for an investigation of whether Plaintiff had broken bones. (Id.).
Diagnostic imaging was taken of Plaintiff's lumbosacral spine in October 2011. (Tr. 417). The study showed only minimal narrowing of the L5-S1 disc space. (Id.). That same month, an imaging study of Plaintiff's right foot and ankle revealed mild soft tissue swelling without fracture or subluxation. (Tr. 419).
On October 18, 2011, Naomi Waldbaum, M.D., examined Plaintiff at the request of the state disability determination bureau. (Tr. 423-29). Plaintiff reported that during a 2002 work injury, a heavy piece of steel fell onto his foot, and as he withdrew to remove it, the steel moved and fell a second time, but on the outside of his ankle. (Tr. 427). He claimed that he was off of work for one month and returned to work another eight months, but became slower on the job and retired. Plaintiff reported no pain while sitting, but that his foot would swell when walking. He endorsed cramps in his calf and some low back pain. (Id.). Plaintiff was functional in all activities of daily living but could not drive. (Tr. 428).
Dr. Waldbaum observed that Plaintiff was overweight, but ambulated in an essentially functional and non-antalgic manner with some trace abnormality on the right side. (Tr. 428). Plaintiff appeared to walk on the outside of the right foot and did not put his toes directly on the floor. An examination showed no obvious atrophy in the right calf, though the dorsum of the right foot was very pink compared to the left foot. Dr. Waldbaum described puffiness rather than a gross swelling in the foot over the dorsum and malleoli. (Id.). Plaintiff's reflexes were intact and there was no sensory abnormality aside from some areas of the right foot. (Tr. 428-29). Right straight leg raising was up to 40 degrees on the right, and normal on the left. (Tr. 429). Plaintiff's lumbar flexion and extension were limited, but not due to discomfort. (Tr. 428). There was no discomfort in palpating the spine. (Tr. 429). Dr. Waldbaum opined that Plaintiff could be helped by an appropriate physical therapy program, but would be able to perform many types of work activities that did not involve an excessive amount of standing, walking, and climbing. (Id.).
On October 26, 2011, state agency physician Jerry McCloud, M.D., performed a review of the record. (Tr. 130-33). Dr. McCloud gave little weight to the opinion of Dr. Waldbaum, because the evidence did not support limiting Plaintiff to work that did not require significant standing, walking, or climbing. (Tr. 132). The doctor opined that Plaintiff could lift or carry 50 pounds occasionally and 25 pounds frequently; stand, walk, or sit for up to six hours in an eight hour workday; and occasionally use his right leg to operate foot controls. (Id.). Plaintiff was able to perform all postural activities frequently. (Tr. 132-33).
On March 31, 2012, state agency physician Olga Pylaeva, M.D., reviewed the record. (Tr. 152-53). She affirmed Dr. McCloud's assessment. (Tr. 153).
Around March 2012, O'Reilly completed a questionnaire in association with Plaintiff's application for disability benefits. (Tr. 430-32). The chiropractor indicated that he first treated Plaintiff in June 2008 and last treated Plaintiff in October 2008. (Tr. 431). He described Plaintiff's diagnosis as a right leg contusion and cited Plaintiff's complaints of pain and stiffness. (Id.). O'Reilly opined that Plaintiff was limited in his abilities to walk, stand, and jump, and should be limited to under 15 minutes of constant standing or walking. (Tr. 432).
The ALJ made the following findings of fact and conclusions of law:
(Tr. 13-20) (internal citations omitted).
Claimants are entitled to receive Disability Insurance and/or Supplemental Security Income benefits only when they establish disability within the meaning of the Social Security Act.
Judicial review of the Commissioner's benefits decision is limited to a determination of whether, based on the record as a whole, the Commissioner's decision is supported by substantial evidence, and whether, in making that decision, the Commissioner employed the proper legal standards.
On October 29, 2014, Plaintiff filed a "Supplement to Notice," which the Court informed Plaintiff did not satisfy the requirements for briefs filed in social security cases. (Doc. Nos. 17, 18). The Court granted Plaintiff additional time to file a brief that complied with the requirements described in the Court's Initial Order. (Doc. No. 18).
On November 25, 2014, Plaintiff filed a "Brief on [the] Merits." (Doc. No. 19). In this filing, Plaintiff does not meaningfully challenge the ALJ's decision on the merits. That is, Plaintiff does not intelligibly identify any errors that the ALJ may have committed when reviewing his applications for benefits.
After reviewing the record and the ALJ's opinion, the Court concludes that the ALJ's decision is supported by substantial evidence. The ALJ applied the appropriate standards when completing each step of the sequential evaluation process and sufficiently considered and assessed all of the evidence. The Court does not find that the ALJ committed error such that remand for further consideration should be recommended.
As part of his filings, Plaintiff submits some evidence. (Doc. Nos. 17, 19). The evidence included in Plaintiff's "Supplement" (Doc. No. 17) is a duplicate of any documents submitted with his brief. As a result, for the purpose of this opinion, the Court will cite to only the evidence in Plaintiff's brief.
The court is "confined to review evidence that was available" to the ALJ in determining whether the ALJ's decision is supported by substantial evidence.
Sentence six of 42 U.S.C. § 405(g) permits a court to remand a case back to the ALJ for consideration of new evidence under certain circumstances. However, the plaintiff must show that the evidence is (1) new, (2) material, and (3) there was good cause for the failure to incorporate such evidence into the prior proceeding.
To be considered "new," the evidence at issue must not have been "in existence or available to the claimant at the time of the administrative proceeding."
Despite submitting evidence with his filings, Plaintiff has failed to carry his burden to demonstrate how the evidence is new, material, and whether good cause exists, making remand inappropriate on this ground. Assuming for the purpose of this analysis that Plaintiff had provided some argument, the Court would nevertheless conclude that the evidence fails to qualify either as new or as material.
In his filing, Plaintiff includes the following: (1) portions of hospital records from 2002 where Plaintiff was treated for his right foot injury (Doc. No. 19 at 11, 42-47); (2) a temporary approval for Medicaid in July 2013 and other documents associated with a Medicaid application (Id. at 34-36); (3) a doctor's note stating that Plaintiff was seen on July 7, 2014, for evaluation and treatment of a right lower extremity injury (Id. at 38); (4) a February 2014 x-ray of Plaintiff's right foot that showed severe diffuse osteopenia (bone mineral density that is lower than normal), but no other significant abnormality (Id. at 49); (5) a February 2014 note from Mark Berkowitz, M.D., explaining that Plaintiff had an appointment that day, surgery would have a 20 percent chance of being successful, and after surgery Plaintiff would always need to wear a brace and would never be able to run (Id. at 40); and (6) Dr. Berkowitz's March 2014 orthotic prescription for a molded ankle gauntlet. (Id. at 41).
To begin, the portion of the 2002 hospital records, which were dated October 17, 2002, were part of the record before the ALJ. (Compare Doc. No. 19 at 11, 42-45 with Tr. 435-41). The only portion of these records that do not appear to be part of the administrate transcript were those dated October 22, 2002. (Doc. No. 19 at 46-47).
The remainder of the evidence in Plaintiff's filing was not before the ALJ, but the Court finds that the evidence was not material. To begin, the evidence was from over two years after the disability period closed. Generally, evidence of a subsequent deterioration or change in the plaintiff's condition after the administrative hearing is deemed immaterial.
For the foregoing reasons, the Magistrate Judge finds that the decision of the Commissioner is supported by substantial evidence. Accordingly, the undersigned recommends that the decision of the Commissioner be AFFIRMED.
