Opinion
04 Civ. 3649 (RWS).
September 29, 2005
PHYLLIS R. BRILLER, Plaintiff Pro Se, Bellvalle, NY.
HONORABLE MICHAEL J. GARCIA, United States Attorney for the Southern District of New York, Attorneys for Defendant. New York, NY, By: SUSAN D. BAIRD, ESQ., Assistant US Attorney Of Counsel.
OPINION
Plaintiff pro se Phyllis R. Briller ("Briller") has moved for summary judgment, and the defendant Jo Anne Barnhart, Commissioner of Social Security (the "Commissioner") has cross-moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons set forth below, the motion of Briller is denied, and the cross-motion of the Commissioner is granted.
Prior Proceedings
Briller filed her complaint on May 13, 2004 challenging the decision of the Commissioner that she was not entitled to widow's insurance benefits prior to October 2000.
Briller by her reply to the answer of the Commissioner sought summary judgment. Her motion and the cross-motion of the Commissioner for judgment on the pleadings were marked fully submitted on March 31, 2005.
The Administrative Proceedings
Briller filed an application for widow's insurance benefits on December 17, 1996, alleging disability due to ocular histoplasmosis, a visual disorder (Tr. 13, 547). The application was denied initially and on reconsideration (Tr. 346-49, 352-55, 358-61, 365-67). She then requested a hearing before an Administrative Law Judge ("ALJ") (Tr. 1368). A hearing was held, and on May 20, 1999, the ALJ found that Briller was not disabled because she was engaging in substantial gainful activity (Tr. 342-45). On June 8, 1999, Briller requested Appeals Council review of this decision (Tr. 395-96).
Widow's insurance benefits may be paid for up to twelve months prior to the date an application is filed. 20 C.F.R. 404.621.
Page citations in the form "Tr." are to the transcript of the administrative record filed by the Commissioner as part of the answer.
On March 8, 2000, while the request for review of the ALJ's decision was pending before the Appeals Council, Briller filed a second application for widow's insurance benefits (Tr. 63-64). Following an investigation, a special determination was made on August 29, 2000, finding that Briller continued to perform substantial gainful activity since the denial of her first application in May 1999 (Tr. 27-30). In a subsequent determination on December 29, 2000, Briller was found to have been disabled as of October 1, 2000, when she closed her business, but not prior thereto (Tr. 32-33).
On June 3, 2003, the Appeals Council vacated the May 20, 1999 hearing decision and remanded the case to an ALJ for a new hearing because the hearing tape associated with that decision could not be located (Tr. 411-12). The Appeals Council also noted that based on the subsequently filed application, Briller was found to have been disabled beginning October 1, 2000 (Tr. 211). The Appeals Council affirmed the allowance on the subsequent claim, and instructed the ALJ to readjudicate the claim prior to that date (id.).
A hearing was held on August 12, 2003, and Briller testified and was represented by counsel (Tr. 796-816). On October 29, 2003, the ALJ issued a decision finding that Briller engaged in substantial gainful activity through September 2000 and, thus, was not disabled at any time through September 2000 (Tr. 13-16). This decision became final when the Appeals Council denied her request for review on April 2, 2004 (Tr. 4-6).
Evidence Before the Administrative Law Judge
Briller's individual tax returns for the years 1994, 1996, 1997 and 1998 are included in the record (Tr. 97-109, 123-33, 459-67, 489-500, 501-13). Also included in the record is the first page of her 1995 individual tax return (Tr. 468). Briller reported no wages in any year between 1994 and 1998 (Tr. 97-109, 123-33, 459-68, 489-500, 501-13). She reported an adjusted gross income of $3,745.00 in 1994, and an adjusted gross income loss in each of the years between 1995 through 1998 (id.).
The record also contains the business tax returns for Briller's business, Computers at 11 Forester, Inc., for the years 1994, 1997, 1998 and 1999 (Tr. 84-96, 110-22, 191-203, 429-43). The business reported a net loss in 1994, 1998 and 1999, and reported ordinary income of $2,684.00 for 1997 (id.). The returns also show that in 1994 there were gross receipts of $62,139.00 and gross profit of $29,935.00 (Tr. 429-43); in 1997 there were gross receipts of $93,602.00 and gross profit of $26,967.00 (Tr. 84-96); in 1998, there were gross receipts of $88,526.00, and gross profit of $61,014.00 (Tr. 110-22); and in 1999 there were gross receipts of $64,402.00 and gross profit of $54,916.00 (Tr. 191-203).
In her disability report completed on January 25, 1997, Briller alleged that she was disabled due to ocular histoplasmosis (Tr. 547). She stated that the condition started in November 1979, but did not cause her to stop working (id.). She stated that she owned a computer training facility, but could no longer manage the bookkeeping, repair of computers, or teaching multiple students, and that such activities took an "extraordinary amount of time" for her to complete (id.). She stated that since 1993, she had worked six to seven days per week, and twelve to fourteen hours per day (Tr. 550). She also stated that she "can't see well enough to make a living" (Tr. 550). She acknowledged that she drove a car but stated that she drove very carefully during non-peak hours when there were fewer cars on the road (id.). Briller reported that she was a college graduate and had obtained credits towards obtaining a Ph.D as recently as 1987 (Tr. 215, 551).
Presumed ocular histoplasmosis is a disease that causes a visual impairment or loss of sharp central vision (Tr. 790).
In the disability report, Briller stated that she had been a computer consultant most of her life and began her own business in 1993, in part because she could not be fired as the owner (Tr. 559). She stated that she located the business about three miles from her house so she could drive there with less chance of an accident (id.). She reported that she had to hire others to do the work since she could not manage the bookkeeping, computer repair, or the teaching by herself (id.).
In a work activity report, also completed on January 25, 1997, Briller reported that she had "very good project management skills," but had much difficulty reading (Tr. 561-64). She stated that she could explain how to use complicated computer programs, but had to memorize the screens and that she could not see the computer screens easily from a foot away (id.). She also reported that she could explain how to build a computer, but could not see to put the components together. In addition, she stated that she could explain how to set up an accounting package, but could not see to balance a checkbook without difficulty (Tr. 562).
Briller completed a self-employment questionnaire on March 6, 1997 (Tr. 473-76). She stated that she had no earnings from self-employment (Tr. 474) and was asked to list the months in which she "worked more than 40 hours in your business" (id.). She stated that since incorporating in 1993, she averaged twelve to fourteen hours per day, five to six days per week, that she memorized computer screens so that she could discuss them, that she rarely traveled, that if she had to go to a client's site, she would go there beforehand so that she did not get lost, that she did not teach large classes because she could not see individual screens, that she did not teach new programs because it took her too long to learn them, and that she did not do bookkeeping because she made too many errors (id.). She acknowledged that she made management decisions, but stated that she relied "more and more on the advice of others" (id.). She also reported that she had hired people to assist her in her usual duties because of her impairment (Tr. 476; see Tr. 472).
Briller completed a statement on June 25, 1997 describing her activities of daily living (Tr. 586-89). She stated that she spent "almost every waking hour" working, (Tr. 586) that most of her day was spent on the phone talking to potential students, greeting people, and directing their questions (id.). She reported that she worked with students in very small classes when she could see their computer screens (id.) and that she was responsible for bills and paperwork (Tr. 587).
Briller prepared a month-by-month accounting of the numbers of hours she had taught, the number of classes she had taught, and the total number of classes taught by all instructors of her company for the period March 1997 through August 2000 (Tr. 148-74, 183-90). During the period from March 1997 through April 1999, she reported that the business gave an average of 19.1 classes per month, of which an average of 3.1 classes per month were taught by her (Tr. 148-73). She reported that she averaged 9.4 hours of teaching per month, during this time period (id.). For the period between May 1999 and August 2000, she reported that the business averaged 15 classes per month, of which an average of 5.4 classes per month were taught by her (Tr. 174, 183-90). She stated that she spent an average of 14.8 hours per month teaching during this period (Tr. 174).
Briller completed a work activity report on August 21, 2000 (Tr. 68-69). She indicated that both before and after May 1999, she performed some management duties, some computer training and consulting, and some computer repair (Tr. 68). She stated that the current office manager was experienced, and made management decisions because Briller was available less frequently (id.). According to Briller, the office manager worked thirty-five hours per week and was paid $15.00 per hour, although the two predecessor office managers worked approximately twenty hours per week and were paid between $5.00 and $10.00 per hour (Tr. 69). She also reported that the computer repair facility of her business had been closed because her computer repair technician was frequently ill, and had become less dependable since May 1999, that she was capable of making repairs with the assistance of the office manager, but that they were turning away much business (Tr. 69). According to Briller, when she made a repair, she calculated the amount of time that the technician would have spent making the repair and charged the client only that amount of time, although it would take her two to three times longer to accomplish the same task (id.).
In the August 2000 report, Briller also stated that prior to May 1999, she was responsible for the marketing and public relations (Tr. 70). However, she stated that the high cost of advertising and printing had made her curtail these activities, which, she believed, was responsible for the decrease in the number of classes being taught (id.). She stated that prior to May 1999 she tried to attend business meetings and local conferences (id.) and that while she might have been at the office more than twelve hours in a day, she may not have been doing work related to the business during that time (Tr. 75). She also stated that although her car might have been parked in front of the office, she also parked at her office while shopping, doing errands, walking, doing personal work (id.). She estimated that since May 1999, she spent an average of twenty-four hours per month doing office management work and an average of fifteen hours per month teaching and other "billable work" (id.). She also stated that since she owns the building where her company is located, she also acts as a landlord and that she had recently been notified that the numbers on the building were not in compliance with local code, so she had spent time determining how to comply (Tr. 76). She also had to deal with local skateboarders, and trimming weeds around the building (id.).
In a letter dated November 19, 2000, Briller reported that her business had decreased since 1997, and that she had ceased operations as of September 30, 2000 (Tr. 46-52). She reported that one employee left in June 1999, and seven other employees left between January 2000 and September 2000 (Tr. 146) and that in 1997, there were 162 students; in 1998, 175 students, and that in 2000, through September, there were 89 students (Tr. 49,51).
Briller testified at the administrative hearing on August 12, 2003, regarding the documents she had submitted (Tr. 807-16). She stated that in March 1997 she had taught 21 hours of classes, that all instructors taught a total of 28 classes, not hours, in March 1997 (Tr. 808) and that the calendars she had submitted listed the name of the class taught, the instructor teaching it, on the day it was taught (id.). She also explained that she owned the building her company used as an office and that the company paid her rent for use of the building (Tr. 811-12). She stated that she paid the teachers at her company by check, and that the money to pay the teachers came from the students' tuition (Tr. 813). She stated, "I did not feel that what I was doing was substantial nor did I feel what I was doing was gainful" because of the limited income she was receiving and the amount of work she devoted to the business (Tr. 814).
The ALJ's Decision
The ALJ evaluated Briller's claim and in an opinion issued on October 29, 2003 held that she performed substantial gainful activity as a self-employed individual and therefore was not disabled (Tr. 16). 20 C.F.R. § 404.1520(a)(4).
Standard of Review
The Act provides that the "findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996); Richardson v. Perales, 402 U.S. 389, 401 (1971). Thus, if there is substantial evidence supporting the Commissioner's determination, the Commissioner's decision must be upheld, even if there is also substantial evidence for the plaintiff's position. Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982); see also, DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998) (affirming Commissioner's decision where substantial evidence for both sides).
Substantial evidence in this context has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401 (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938));Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).
The substantial evidence test applies not only to findings on basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Levine v. Gardner, 360 F.2d 727, 730 (2d Cir. 1968); Murphy v. Secretary of Health and Human Serv., 62 F. Supp. 2d 1104, 1106 (S.D.N.Y. 1999). The rule that the Commissioner's findings of fact, as well as the inferences and conclusions to be drawn from those findings, are conclusive applies even in those instances where a reviewing court's independent analysis of the evidence may differ from the Commissioner's analysis. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983). In short, the reviewing court is not to decide the case de novo. Schaal v. Apfel, 134 F.3d at 501; Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980). The Commissioner's decision may be set aside only if it is "based upon legal error or not supported by substantial evidence." Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curium)). The Standard For Disabled Widow's insurance Benefits The Burden of Proof
To be entitled to disabled widow's insurance benefits, a claimant must establish that: (1) she is the widow of a wage earner who died fully insured, (2) she is at least 50, but less than 60 years of age, and (3) she is disabled, as defined in 42 U.S.C. § 423 (d). 42 U.S.C. § 402 (e) (1). In addition, the disability must have commenced within seven years of the latest of the following events: (1) the month in which the wage earner died, (2) the last month in which the claimant was entitled to widow's insurance benefits, or (3) the last month in which there was a previous entitlement to widow's benefits. 42 U.S.C. § 402 (e) (4).
To establish disability under the Act, an individual must demonstrate "[an] inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423 (d) (1) (A). Parker v. Harris, 626 F.2d 225, 230-31 (2d Cir. 1980);Gold v. Sec'y of HEW, 463 F.2d 38, 41 (2d Cir. 1972).
The statute further requires that an individual will be determined to be under a disability, "only if . . . [her] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423 (d) (2) (A). If a claimant is working and is doing substantial gainful activity, she will be found not disabled regardless of her medical condition or her age, education, or work experience. 20 C.F.R. § 404.1520(b). The issue here presented therefore is the existence or not of substantial gainful activity.
The Secretary has established a five-step sequential process for evaluating disability claims. See 20 C.F.R. § 404.1520. The Second Circuit has summarized this process as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. [*19] If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform.Berry, 675 F.2d at 467; see also Bowen v. Yuckert, 482 U.S. 137, 140-41, 96 L. Ed. 2d 119, 107 S. Ct. 2287 (1987);Chico v. Schweiker, 710 F.2d 947, 950-52 (2d Cir. 1983). Because the Secretary determined Briller not to be disabled based upon the first step, and this determination is supported by substantial evidence, analyzing Briller's claim under steps 2-5 is unnecessary.
"Substantial gainful activity" is "work activity that is both substantial and gainful." 20 C.F.R. § 404. 1572. "Substantial work activity" is defined as: "work activity that involves doing significant physical or mental activities. Your work must be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before." 20 C.F.R. § 404.1572 (a). "Gainful work activity" is: "work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. § 404.1572(b).
The Commissioner's regulations also provide specific guidelines for the evaluation of activities performed by self-employed individuals. Under the guidelines, the Commissioner determines whether a claimant has engaged in substantial gainful activity by applying three tests:
(1) Test One: You have engaged in substantial gainful activity if you render services that are significant to the operation of the business and receive a substantial income from the business. Paragraphs (b) and (c) of this section explain what we mean by significant services and substantial income for purposes of this test.
(2) Test Two: You have engaged in substantial gainful activity if your work activity, in terms of factors such as hours, skills, energy output, efficiency, duties, and responsibilities, is comparable to that of unimpaired individuals in your community who are in the same or similar businesses as their means of livelihood.
(3) Test Three: You have engaged in substantial gainful activity if your work activity, although not comparable to that of unimpaired individuals, is clearly worth the amount shown in § 404.1574 (b) (2) when considered in terms of its value to the business, or when compared to the salary that an owner would pay to an employee to do the work you are doing.20 C.F.R. § 404.1575 (a). If a claimant has not engaged in substantial gainful activity under Test One, then the Commissioner is to consider whether she has engaged in substantial gainful activity under Tests Two and Three (id.). Under Test Three, substantial gainful activity is presumed if an individual's average monthly earnings were at least $500.00 per month for the period between January 1990 through June 1999, and at least $700.00 per month for July 1999 through December 2000. 20 C.F.R. § 404.1574(b) (2) (Table 1).
There Is Evidence That Briller Performed Substantial Gainful Activity
Here, the Commissioner contends that the evidence supports the ALJ's finding that Briller performed substantial gainful activity under Test Three (Tr. 16-16). The ALJ found that Briller engaged in work activity which, while not comparable to that of an unimpaired individual, was clearly worth at least $500.00 or $700.00 per month when considered in terms of its value to the business, or compared to the salary an owner would pay to an employee to do the work Briller did. See 20 C.F.R. § 404.1575 (a)-(3) (Test Three). Accordingly, the ALJ denied plaintiff's applications for disabled widow's insurance.
The ALJ's determination that Briller was engaged in substantial gainful activity is supported by substantial evidence. In December 1993, Briller stopped working as an independent computer consultant and began her own business, a computer training and repair facility (Tr. 551). She was knowledgeable in all aspects of this business (id.). Although Briller had trouble reading because of her visual impairment, she acknowledged that she had very good project management skills (Tr. 562) and performed substantial tasks for the business as described in the administrative record described above, including performing the duties of a landlord, as she owned the building in which the business was located (Tr. 76).
As the owner and director of the business, Briller was responsible for the significant revenue the business produced. The business, Computers at 11 Forester, Inc., produced gross receipts of between $62,139.00 in 1994 and $93,602.00 in 1997 (Tr. 84-96, 429-43). Briller's significant contribution to the business demonstrates that she was performing substantial gainful activity prior to October 2000.
Briller also reported that she worked five to six days per week, and twelve to fourteen hours per day, or an average of over 70 hours per week (13.5 hours x 5.5 days = 74.25 hours per week (Tr. 474). Even at a minimum wage of $5.15 per hours, working 74.25 hours per week would net a monthly wage of $1,644.27 (74.25 hours x $5.15 per hours x 4.3 weeks per month = $1,644.27).
In addition, Briller paid her office manager $15.00 per hour and paid her instructors between $15.00 and $30.00 per hour (Tr. 43). Thus, valuing her work at the lower $15.00 per hour base, Briller's 319.28 hours per month were worth $4,789.20 to the business per month (319.28 hours x $15.0 per hour = $4,789.20). This exceeds the $500.00 to $700.00 threshold set by the regulations.
Briller reported that due to her visual impairment the work she performed took her much longer to complete than it would if she had full vision (Tr. 547) and that it took her two to three times longer to repair a computer than it would take a regular technical (Tr. 19). However, even if Briller was paid one-third the amount she paid her office manager and lower-paid instructors, working 319.28 hours per month at $5.00 per hour yields a total of $1,596.40 per month, in excess of the $500.00 to $700.00 threshold of the regulation.
Briller also testified that as of May 1999, she spent only an average of twenty-four hours per month doing office management work and an average of 15 hours per month teaching and other "billable work" (Tr. 70). It may be argued that during this time Briller's work did not amount to the $700 threshold under Test Three (assuming the lower hourly rate). However, given that there is also evidence that Briller worked 12 to 14 hours per day, this is not sufficient to overturn the Commissioner's determination. As noted, if there is substantial evidence supporting the Commissioner's decision, that decision must be upheld, even if there is also substantial evidence for the plaintiff's position.Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Briller also argues that the ALJ erred in deciding that she had performed substantial gainful activity because he considered the rent she received from her business to be earned, rather than unearned, income (Pl. Br. at 7-8). In analyzing Briller's tax returns, the ALJ noted that although Briller drew no salary from her business, she did derive some money from the business in the form of a $700.00 per month rental payment (Tr. 13-16). She also reported that she spent some of her working time attending to matters wearing her "landlord hat" (Tr. 76). The ALJ's finding that Briller drew money from her business and engaged in activities as a landlord was appropriate.
Briller has not met her burden at the first step of the sequential evaluation, that she was not engaged in substantial gainful activity prior to October 2000. Perez v. Chater, 77 F.3d at 46 (claimant has burden of proving requirements in the first four steps). Only Final Decision of Commissioner May be Reviewed by this Court
Briller also contends that the Commissioner's decision denying her claim should be reversed because the special determination did not follow the directives set forth in the agency's Program Operations Manual System ("POMS"). (Pl. Br. at 6-7). However, the special determination, issued on August 29, 2000 (Tr. 39-41), is not the final decision of the Commissioner and is not subject to review by this Court. See 42 U.S.C. § 405(g) (permitting review of any "final" decision of the Commissioner). That decision was issued following Briller's second application for benefits, and was subsequently reviewed, and resulted in a finding that Briller was entitled to benefits as of October 1, 2000 (Tr. 32-33). The decision that is subject to review by this Court is the ALJ's October 29, 2003 decision that denied Briller's first application for benefits for the period prior to October 1, 2000 (Tr. 13-16).
In addition, the POMS are internal SSA policy manuals, and as such, have no legal force. Schweiker v. Hansen, 450 U.S. 785, 789 (1981). POMS DI 10510.020 sets forth instructions for "Tests Two and Three: Comparability of Work and Worth of Work Test." Briller has referred to subsections (B) (1) and (B) (3) of section 10510.020 (Pl. Br. at 6-7). However, those subsections refer to test two, and the Commissioner applied test three to find that Briller was performing substantial gainful activity.See Tr. 13-16. Therefore, the POMS section cited by Briller does not apply here.
The ALJ Followed the Appeals Council Directions
Briller also contends that the ALJ erred in failing to follow Appeals Council directions to complete the administrative record and issue a new decision on the issue of disability before October 1, 2000 (Pl. Br. at 8; see Tr. 412). However, the ALJ complied with that directive, finding that Briller was not entitled to benefits based on her December 17, 1996 application (Tr. 13-16). Step one of the sequential evaluation process requires that an individual's work activity be considered. 20 C.F.R. § 404.1520 (a)-(4) (i). If an individual is performing substantial gainful activity, then the Commissioner will find her not disabled (id.). If an individual is determined to be not disabled because she is performing substantial gainful activity, the sequential evaluation process is not continued and a finding of medical disability is not made. See 20 C.F.R. § 404.1520(a) (4). Therefore, in finding Briller had engaged in substantial gainful activity, the ALJ issued a decision of disability pursuant to the Appeals Council directive. The New Evidence Submitted is not Sufficient to Warrant Remand
Finally, Briller has submitted new evidence to this Court in the form of her 2000 individual tax return to support a reversal of the Commissioner's decision (Pl. Br. at 11-12). In addition, she has referred to testimony at a December 15, 1998 hearing (Pl. Br. at 12), which was not presented at the hearing before the ALJ. New evidence that is submitted to the court for the first time may be considered by the court only to determine if the case should be remanded for consideration of the new evidence. Tirado v. Bowen, 842 F.2d 595, 598 (2d Cir. 1988). New evidence serves as the basis for a remand if it would have changed the Commissioner's decision. Id. The personal net operating loss reported on Briller's 2000 income tax return does not establish that she was not performing substantial gainful activity prior to October 2000. In addition, Briller's December 1998 testimony does not constitute evidence that would warrant remand as it has not been shown to have changed the Commissioner's decision.
The Commissioner's determination was appropriate and is affirmed by this Court under the substantial evidence rule. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389 (1971). Conclusion
The cross-motion of the Commissioner is granted, the motion of Briller is denied, and the Commissioner's decision is affirmed.
It is so ordered.