Opinion
CIVIL ACTION NO. 01-12240-GAO.
June 9, 2003.
MEMORANDUM AND ORDER
The plaintiff, Fernando Santana Garcia, seeks to reverse the decision by the Commissioner of the Social Security Administration ("Commissioner") denying Garcia's application for Supplemental Security Income ("SSI") benefits, or alternatively, to remand the matter for consideration of additional evidence. For the reasons stated below, the Plaintiff s Motion to Reverse or Remand the Decision of the Commissioner (Doc. No. 9) is denied, and the Defendant's Motion For Order Affirming the Decision of the Commissioner (Doc. No. 11) is granted.
I. Facts Appearing in the Record
Garcia first filed his application for SSI benefits on November 25, 1998. (R. at 59-68). His application was denied initially on January 26, 1999 (R. at 39), and denied again upon reconsideration on May 26, 1999. (R. at 45). On July 7, 1999, Garcia requested a hearing before an Administrative Law Judge ("ALJ"). (R. at 49). A hearing was held before the ALJ on January 27, 2000, at which Garcia, represented by counsel, appeared and testified. (R. at 20-36). On May 23, 2000, the ALJ denied Garcia's application for SSI benefits. (R. at 14-19). The ALJ found that Garcia was not "disabled" as the term is defined by the Social Security Act and that while he could not return to his past occupation as a construction worker, there exist in the economy a sufficient number of jobs which he can perform. (R. at 16-19). On June 5,2000, Garcia requested an Appeals Council review of the ALJ's decision. (R. at 9). On October 18, 2001, the Appeals Council denied Garcia's request for review, rendering the ALJ's ruling the final decision of the Commissioner. (R. at 6-7).
Garcia was born in Puerto Rico on April 26, 1964, and arrived in the United States from Puerto Rico on November 16, 1998. (R. at 24; Def.'s Mem. Supp. Motion for Order Confirming Decision of Commissioner at 2). He has an eighth-grade education and can speak and read only Spanish. (R. at 24, 142). Garcia was employed in Puerto Rico as a construction worker, specifically as a brick layer and a carpenter. (R. at 24, 61, 143). Garcia's present back impairment is directly related to a fall from a second floor that he sustained while working in construction in 1991. (R. at 26-27). On March 14, 1996, Garcia underwent a "CT scan of the lumbosacral spine" which was administered by Dr. Frank Kolodziej at Advanced Medical Care, Inc. in Puerto Rico. (R. at 148). Dr. Kolodziej's opinion was that Garcia had "disc herniation with lateralization towards the left at the L5-S 1 intervertebral space associated with minimal indentation of the adjacent dural sac margin and encroachment upon the SI nerve root on the left." (R. at 148). In addition to Dr. Kolodziej's notes, the medical record includes reports from several other medical-care providers in Puerto Rico who had previously treated Garcia. (R. at 149-157). Certain of these reports are written in Spanish without English translation. (R. at 149-151). The December 29, 1993, neurology report by Dr. Colom Alemany is written in English. (R. at 153-55). This report states that Garcia complained of "on-and-off" low-back pain that did not radiate to his lower extremities. Upon examination, Dr. Alemany reported that there was "no muscular spasm" in the lumbar area and that his "gait, strength, and reflexes" were normal, with "no atrophy, fasciculaturis, nor postural disturbances." (R. at 155). He further reported that Garcia had "no clinical signs of lumbar radiculopathy" and that he had an "old, cured" lumbar strain with "no residuals." (R. at 154). In addition to his physical examination of Garcia, Dr. Alemany reviewed Garcia's medical history and noted that he had previously been seen in 1991 by an orthopedist for a fractured right ankle and that he had been examined at Vista Medica in September and October of 1993. (R. at 155). Additionally, Garcia was seen at the Grafotipo Hospital Industrial in Puerto Rico in March and April 1996, and complained of back pain. (R. at 156).
The record is contradictory regarding Garcia's English competency.
The record did not include where either the orthopedist or Vista Medica were located, nor any details regarding what medical services Garcia received at Vista Medica. (R. at 155).
On November 25, 1998, Garcia (then a resident of Massachusetts) filed an application for SSI benefits. (R. at 59-68). On December 11, 1998, Garcia was examined by his treating physician, Dr. John J. W. Fangman, an internist and pediatrician, at Uphram's Comer Health Center in Dorchester, Massachusetts. (R. at 105-109). Garcia complained of low-back pain, informing Dr. Fangman that his symptoms decreased when walking and increased when lying down, especially when lying on his right side. (R. at 109). In his report, Dr. Fangman noted that Garcia could flex to almost touch his toes, and that his straight-leg raising was negative to 50 degrees, bilaterally. (R. at 106).
Based on the December 11, 1998 examination, Dr. Fangman submitted an "Emergency Aid to the Elderly, Disabled and Children Medical Report" to the Massachusetts Department of Transitional Assistance ("MDTA") stating that Garcia's back impairment met the MDTA's medical standards (or the SSI listing of impairments). (R. at 132-137). Dr. Fangman noted that he expected Garcia's disability to last three to six months. (R. at 133). Dr. Fangman also detailed Garcia's physical and mental capabilities in the report to the MDTA. (R. at 136-137). In regard to his physical capabilities, he noted Garcia had the ability to sit or stand for two hours, to bend or stoop occasionally, and to lift and carry ten pounds frequently and twenty pounds occasionally. (R. at 136). No limitations were noted regarding any of Garcia's mental abilities: Dr. Fangman determined that Garcia was capable of remembering and carrying out simple instructions, maintaining attention and concentration in order to complete tasks in a timely manner, making simple work-related decisions, interacting appropriately with co-workers and supervisors, working at a consistent pace without extraordinary supervision, and responding appropriately to changes in work routine or environment. (R. at 137). Dr. Fangman also ordered physical therapy and prescribed Naprosyn for pain. (R. at 136).
On January 12, 1999, Garcia was examined by Dr. Laurie Katzman and x-rays taken. (R. at 86-88). Dr. Katzman reported that there was no tenderness in Garcia's back and that straight-leg raising was normal. In addition, Garcia's deep-tendon reflexes were found to be symmetric and sensory tests were normal to pinprick. (R. at 87). Upon evaluation, the x-rays showed only "some narrowing of the L5-S1 disc space" and "some hypertrophic change of the apophyseal joints at L5-S1 bilaterally" with "minimal degenerative changes." (R. 89). Her overall impression after a full examination was that Garcia has "chronic, low-back pain," and a "component of sciatica with pain radiating down to the left leg." She further noted that his "neural exam was nonfocal," that he was "able to walk for long distances without difficulty," and that he did not require any pain medication at this time. The diagnosis was mild sciatica. (R. at 87).
On January 22, 1999, Dr. J. Jones reviewed Garcia's medical records and prepared a Physical Residual Functional Capacity Assessment. (R. at 90-99). In the assessment, Dr. Jones reported Garcia's exertional limitations as being able to lift (and/or carry) twenty pounds occasionally and ten pounds frequently, and as being able to stand (and/or walk) or sit about six hours in an eight-hour workday. (R. at 91). It was noted that his postural limitations included climbing and balancing frequently, while stooping, kneeling, crouching, and crawling only occasionally. (R. at 92). Finally, Dr. Jones opined that Garcia was "not disabled" under Vocational Rule 202.16 and that he could perform "light," unskilled jobs. (R. at 99).
On March 25, 1999, Garcia was examined by Dr. Kathleen Abbott, to whom he was referred by Dr. Fangman for an evaluation of low-back pain. (R. at 158-159). Dr. Abbott noted "tenderness over the L3-S1 region and lumbar paraspinal muscles, [with] no pain over the sciatic notch or greater trochanter bilaterally." In addition, she found that both seated and supine "straightleg rais[ing] was negative for radicular symptoms," while "Fabre's sign [was] positive for low back pain." (R. at 158). Dr. Abbott also reported that Garcia had intact sensation along his entire back, and decreased sensation in his lower extremities as compared to his upper extremities ("with no level at which a sensation change was found"). She found that he had "possible disc disease and neurological abnormality." She further recommended that Garcia have an MRI to evaluate for disc disease, radiculopathy or cord involvement, and also lumbosacral x-rays to evaluate his prior ankle fracture. She also prescribed Salsalate (750 milligrams b.i.d.), with instructions to discontinue use if "GI" upset occurred. (R. at 159).
On April 22, 1999, Garcia had a follow-up exam with Dr. Abbott, and complained that he experienced pain "over the posterior aspect of the thighs, which travels from the lower back and occasionally goes to the calves," and also occasional "muscle spasm of the hamstrings and calves," and "questionable numbness over the posterior thighs." As previously recommended by Dr. Abbott, Garcia had been taking Salsalate and he reported that although he had not noticed a reduction in pain, the medication did help him sleep at night. Dr. Abbott also reviewed the report of the MRI taken April 3, 1999, which indicated "degenerative changes in the lower two discs with evidence of a midline bulge at the L5-S1 disc and no evidence of canal compromise or nerve root involvement." The physical examination revealed that Garcia showed signs of "tenderness over the left lumbar paraspinal musculature and over the L4 to S1 region centrally." She noted that straight-leg raises were "negative for radicular symptoms," the hamstrings and the periformis muscle/gluteal muscle were "very tight bilaterally," and that Garcia experienced "pain with the internal rotation of the hips bilaterally," as well as "discomfort over the left lower back, quadradis lavorum muscle" upon "side-bending to the right." Dr. Abbott diagnosed "[m]echanical low back pain with a disc bulge at the L5-S1 level," but stated that she did not believe that this was the cause of Garcia's chronic pain. She further noted that there was "myofascial pain at the hamstrings and performis muscles bilaterally." At the conclusion of the examination, Dr. Abbott recommended that he take Skelaxin (800 milligrams po t.i.d.), on a trial basis, and that he continue taking Salsalate. She also referred him for physical therapy to develop a home exercise regimen (including stretching and myofascial work). (R. 160).
The MRI film was not available for review. (R. at 160).
On May 14, 1994, Garcia was next examined by Dr. Madhusudan P. Thakur after being referred for a medical evaluation/consultation by the Massachusetts Rehabilitation Commission. (R. at 110-112). Dr. Thakur reported that Garcia complained of back pain in the lumbosacral spinal region and in his right leg, and that he was unable to sleep at night due to the pain. He also noted that Garcia was unable to walk for any distance or stand for any length of time, and that he was significantly limited when bending over. It was also noted that he was limited for lifting heavy objects but could lift up to ten to fifteen pounds at a time. (R. at 110-111). Dr. Thakur summarized his findings regarding Garcia's central-nervous system, stating that "it appears that the L4 dermatome is depressed because of depressed knee jerk which is present," and also "sensory dysfunction, particularly to pinprick." Dr. Thakur opined that Garcia has "chronic low back pain," and that upon "physical examination there is subtle finding of L4 deficiency on the right side." (R. at 112).
On May 22, 1999, Dr. Mallavalli Gopal reviewed Garcia's medical records and prepared a Physical Residual Functional Capacity Assessment. (R. at 113-121). Dr. Gopal's assessment of Garcia's "exertional limitations" was that he could lift twenty pounds occasionally and ten pounds frequently, and that he could stand and/or walk and sit (with normal breaks) for about six hours in an eight-hour workday. (R. at 114). His assessment of Garcia's "postural limitations" was that he had the ability to climb, balance, kneel and crawl frequently, and to stoop and crouch only occasionally. (R. at 115).
At the request of Garcia, Dr. Fangman, as his treating physician, wrote a letter on June 24, 1999, stating that Garcia experienced "chronic low back pain without evidence of progressive focal neuropathy" and concluded that Garcia demonstrated "bilateral lumbar paravertebral muscle tenderness and preserved range of motion." (R. at 122). On January 27, 2000, Dr. Fangman completed a Physical Residual Functional Capacity Questionnaire. (R. at 126-130). Dr. Fangman concluded that Garcia had "mechanical, low back pain [with] midline bulge [at] L5-S1 without compression." He described Garcia's pain as moderately severe and noted that it increased when he was lying down. (R. at 126). Further characterizing Garcia's pain, Dr. Fangman reported that pain often interfered with his attention and concentration, but that it posed only a slight limitation on his ability to handle work stress. He was also of the opinion that Garcia could sit and stand continuously for one hour and could sit about two hours and stand/walk about four hours during a normal eight-hour workday (with normal breaks), and that he would need five-minute periods of walking every thirty minutes. (R. at 128). He stated that Garcia would not need a job where he could change positions at will, but that he would require occasional unscheduled breaks that would last approximately five minutes. Finally, it was Dr. Fangman's estimate that Garcia could lift and carry up to ten pounds frequently, ten to twenty pounds occasionally, and fifty pounds, never. (R. at 129).
On January 27, 2000, at the hearing before the ALJ, Garcia testified that he had constant back pain that extended down his legs. He stated that as a result of his pain he could only sit for half an hour and walk for twenty minutes. (R. at 29-30). Garcia reported that, at night, he takes one relaxant and one pain medication, to allow him to fall asleep easily, although his pain often wakes him. (R. at 31). He further noted that he compensated for his inability to sleep at night by sleeping in the morning, often until noon. (R. at 34). He also testified that he can do laundry, cook and clean on his own, but that he can grocery shop only with assistance. (R. at 31-32). Garcia confirmed that he could lift ten pounds, but was unsure about his ability to lift twenty. (R. at 32). When asked to describe what things he had difficulty doing, he responded that he could not bend over for a long time and that he slept poorly. Upon being pressed further about how his daily living was affected by his pain, he answered that he could not lift much, had trouble with stairs, and could not stand or lie down for long periods of time. He also added that while he used to play basketball, go out with his friends, and work in construction, he does not participate in these activities any longer due to his pain. (R. at 33).
Garcia stated that he takes the relaxant and pain medications at night because he has problems with his stomach when he takes them during the day. (R. at 34).
The ALJ made the following findings: (1) that claimant has not performed any "substantial gainful [work] activity since at least November 28, 1998"; (2) that he has a "severe" impairment as determined under the Social Security Act and that he suffers from "chronic pain associated with degenerative disc disease and mild disc bulge"; (3) that his impairments "do not meet or equal in severity the appropriate medical findings contained in 20 C.F.R. pt. 404, app. 1 to subpt. P"; (4) that he is not a "fully credible witness to the extent of [the] impairment alleged"; (5) that his claims of his "restriction and limitation are inconsistent with both objective findings and medical opinion evidence"; (6) that he is "capable of up to light work"; (7) that he is "unable to perform his alleged past relevant work of carpenter"; (8) that he "was 35 years old on the date of alleged onset, which is defined as a `younger individual,'" and that he has "limited education and limited fluency in the English language"; and (9) that Garcia's "residual functional capacity, and vocational factors," indicate that, based upon Medical-Vocational Rule 202.16, 20 C.F.R. pt. 404, app. 2 to subpt. P, "there are jobs existing in significant numbers which she [sic] can perform." Based on these findings, the ALJ concluded that Garcia was not "disabled" as defined by the Social Security Act and Regulations. (R. at 18).
II. Discussion
Garcia alleges that the ALJ did not correctly evaluate the evidence, that the findings were not supported by substantial evidence, and that the case should be remanded for review of new evidence.
A. Evaluation of the Evidence Claim
Garcia alleges that the ALJ failed to properly weigh all of the evidence in the record. He argues that the ALJ's finding that he is "capable of up to light work," and not disabled, does not meet the requirements of Avery v. Sec'y of Health and Human Servs., 797 F.2d 19 (1st Cir. 1986). The record in this case indicates, however, that the ALJ properly weighed all the evidence, including Garcia's subjective description of his pain.See Frustaglia v. Sec'y of Health and Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). Credibility judgments are left to the ALJ so long as they are not so unreasonable as to be an abuse of discretion. See Cordero v. Chater, 926 F. Supp. 267, 270 (Mass. 1996) ("It is the responsibility of the Commissioner, not the reviewing court, to determine issues of credibility, draw inferences from the record and resolve conflicts in the evidence."). Here, the ALJ carefully considered Garcia's testimony, as well as all the other evidence. See Avery. 797 F.2d at 19.
B. Lack of Substantial Evidence Claim
Garcia argues that the ALJ's findings that he was not a "fully credible witness" and that he "is capable of up to light work" are not supported by substantial evidence. (Pl.'s Mem. Supp. Mot. to Reverse at 12, 15-16; R. at 18). It is the duty of the Court to determine whether substantial evidence existed to support the ALJ's finding that the plaintiff was not disabled.See Newbury v. Heckler, 592 F. Supp. 64, 65 (Mass. 1984). Under the Social Security Act, a person is "disabled" if "he is unable 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. § 1382c(a)(3)(A). The substantial evidence standard is met where a reasonable mind could accept the evidence in the record as adequate to support the ALJ's conclusion. See Ortiz v. Sec'y of Health and Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The Court's role in reviewing the final decision of the Commissioner is a narrow one. Reyes Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969). In reviewing the administrative decision, this Court may base its decision solely upon the parties' pleadings and the administrative record. 42 U.S.C. § 405(g). This Court does not make de novo determinations. See Rodriguez v. Sec'y of Health and Human Servs., 647 F.2d 218 (1st Cir. 1981). If there is a contradiction in the evidence, it is to be resolved by the Commissioner. Lizotte v. Sec'y of Health and Human Servs., 654 F.2d 127, 128 (1st Cir. 1981); Newbury, 592 F. Supp at 66. Although there may be more than one possible finding based on the evidence in the record, if there is substantial evidence to support the determination of the Commissioner, this Court must uphold that final agency action. See Rodriguez, 647 F.2d at 218.
The Court finds that substantial evidence existed, including the evidence discussed above, to support all of the ALJ's findings. Garcia alleges that the ALJ's finding that he was not a "fully credible witness" does not meet the requirements ofDaRosa v. Sec'y of Health and Human Servs., 803 F.2d 24, 26 (1st Cir. 1986) (holding that a decision by an ALJ to disbelieve a plaintiff's subjective claims of pain and inability to function must be supported by substantial evidence and based on specific findings as to evidence the ALJ relied upon in making the credibility determination). The ALJ discounted Garcia's complaints of disabling pain because they were "significantly out of proportion to objective clinical and diagnostic findings" in the treating and examining physician reports in the record. The ALJ's credibility finding was supported by substantial evidence and based on the specific findings that (1) claimant has "only mild degenerative changes in his lower spine, and a disc bulge at L5-S 1"; (2) "[h]is subjective loss of sensation in his lower extremities is suspect, especially as he told some doctors it was his left leg which was affected, and others that it was his right leg"; (3) he also "has no objective weakness of the lower extremities, [and] no atrophy or muscle spasm"; (4) "[s]traight-leg raising has always been negative"; and (5) "no doctor noted marked loss of motion to the lumbosacral spine." (R. at 17).
Garcia also argues that the ALJ's finding that he is "capable of up to light work" is not supported by substantial evidence. If an SSI claimant cannot perform the kind of work he performed in the past because of a severe impairment, the ALJ will assess the applicant's "residual functional capacity and age, your education, and past work experience" to determine if the applicant is capable of performing any type of work available in the national economy. 20 C.F.R. § 404.1520(f)(1). Garcia met the burden of showing that his chronic low-back pain prevented him from returning to his previous job as a carpenter. The burden then shifted to the Commissioner to provide evidence of work that Garcia could perform, which the agency adequately presented at the ALJ hearing. The ALJ, adhering to Medical-Vocational Rule 202.16, properly considered Garcia's residual-functional capacity, and "vocational factors," such as his age (thirty-five), his education (eighth grade), and his past relevant work experience (construction), and concluded that Garcia "is capable of [performing] up to light work" and that "there are jobs existing in significant numbers which she [sic] can perform." (R. at 18).
Garcia claims that the ALJ further erred in determining that he is capable of light work by failing to procure evidence from a vocational expert regarding what types of jobs Garcia could perform "in light of his chronic pain which `often' affects his concentration." (Pl.'s Mem. Supp. Mot. to Reverse at 16). However, the Commissioner must "prov[e] the availability of jobs in the national economy . . . through the use of a vocational expert" only if two conditions are met: the applicant must suffer from a non-exertional impairment and the impairment must "significantly" affect his "ability to perform the full range of jobs he is otherwise exertionally capable of performing." Ortiz v. Sec'y of Health and Human Servs., 890 F.2d 520, 524 (1st Cir. 1989) (citations and internal quotations omitted). Although the ALJ noted that Garcia's chronic, low-back pain would pose "slight" limitations, due to its "impact on his ability to concentrate," there is no evidence suggesting that Garcia's limitation was "significant." Only one of the approximately eight physicians who either examined Garcia or reviewed his records found that his back pain undermined his ability to concentrate. (R. at 127-128). In light of the dearth of evidence supporting Garcia's claim that his ability to concentrate was significantly impaired by his chronic pain, the ALJ's determination that any diminution in Garcia's ability to concentrate was insignificant is supported by the record taken as a whole. As noted above, the ALJ's judgment can be rejected only if it does not fall within a range of acceptability on the record evidence. Pagan v. Sec'y of Health and Human Servs., 819 F.2d 1, 3 (1st Cir. 1987). Here, the ALJ's finding of no non-exertional impairments is within that range, and consequently, it must be left undisturbed "even if the record arguably could justify a different conclusion." Id.
Finally, Garcia asserts that the ALJ erred in concluding that Garcia is capable of light work because there was no testimony regarding the "nature and type of work [Garcia] performed" in his job as a carpenter. (Pl.'s Mem. Supp. Mot. to Reverse at 16). Unskilled work is defined as
work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs.20 C.F.R. § 416.968. It is clear from the definition that no special skills are necessary to perform unskilled work, therefore, the fact that no testimony was presented regarding the nature and type of work that Garcia had engaged in while working as a carpenter is of no consequence. Even if such testimony had been included, the ALJ ultimately would have arrived at the same decision that Garcia is capable of performing light, unskilled labor.
III. New Evidence Claim
Garcia also contends that new and material medical evidence, which was not presented to the ALJ, supports remand of this case to the Commissioner. Garcia's new evidence consists of two reports, resulting from psychological evaluations by Carlos Davila, Ed. D., conducted on March 1, 2002 and March 11, 2002, in connection with Garcia's second application for SSI benefits. (Pl.'s Mot. to Reverse or Remand, Attachs. A and B). These test results indicate that he has substantial intellectual limitations.
Garcia filed his second application for SSI benefits on June 24, 2000. (Pl.'s Mem. Supp. Mot. to Reverse at 3).
On March 1, 2002, Dr. Davila administered a Psychodiagnostic Interview and several standardized tests, including Wechsler Adult Intelligence Scale, 3d ed. (WAIS-III); Test of Non-verbal Intelligence, 3d ed. (TONI-3); Wechsler Memory Scale, 3d ed. (WMS-III); and Bender Gestalt. (Pl.'s Mot. to Reverse or Remand, Attach. A at 1). Dr. Davila also informally screened Garcia's Spanish literacy skills. (Id., Attach. A at 3). In his report, Dr. Davila noted that Garcia's "intellectual functioning . . . falls in the impaired range . . . consistent with a diagnostic profile ranging from mild mental retardation to borderline intellectual functioning." The testing did not uncover any current, organically-based deficits, instead, Dr. Davila reported that Garcia's "history of academic difficulties suggest[s] a level of cognitive limitations that is quite long standing in nature." Dr. Davila diagnosed Garcia with "319 Mental Retardation (severity unspecified), R/O 317 Mild Mental Retardation, and R/O V62.89 Borderline Intellectual Functioning. (Id. at 5).
This diagnosis falls under "Axis II." No diagnosis was noted under "Axis I." (Pl.'s Mot. to Reverse or Remand, Attach. A at 5). The record provides no indication of the significance of Garcia's diagnosis falling under Axis II as opposed to Axis I, nor how it may affect the severity of his disability.
On March 11, 2002, Dr. Davila conducted the Woodcock Test of Cognitive Ability, Spanish ed. (Spanish-Woodcock). (Pl.'s Mot. to Reverse or Remand, Attach. B at 1). Dr. Davila noted that Garcia's performance on this test showed "strong evidence to support a diagnosis of Borderline Intellectual Functioning." Dr. Davila also opined that "during times of stress and/or anxiety-provoking situations, such as new learning experiences, [Garcia's] functioning will be affected adversely and that he may appear more impaired than this current level of functioning would indicate." Dr. Davila diagnosed Garcia with "V62.89 Borderline Intellectual Functioning." (Id. at 3).
Garcia argues that this Court should remand this case under 42 U.S.C. § 405(g) so that the ALJ may consider this new evidence. Under 42 U.S.C. § 405(g), courts may remand cases "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." Evangelista v. Sec'y of Health and Human Servs., 826 F.2d 136, 139 (1st Cir. 1987).
"The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record. . . ." 42 U.S.C. § 405(g).
For evidence to be considered "new" it must be both relevant to the basis for the ALJ's determination and non-cumulative.See id. at 139. Garcia claims that his recent diagnosis of borderline intellectual functioning is new because it relates "to his condition at the time of the ALJ's decision." (Pl.'s Mem. Supp. Mot. to Reverse at 9). Although the record provides some evidence indicating that Garcia has limited cognitive abilities, including that he had been educated in a small, separate class and had to repeat grades prior to dropping out of school while in the eighth grade, that he has a limited ability to read and write in English, and that his "pain and other symptoms . . . `often' interfere with his concentration," the record does not indicate that Garcia ever underwent any formal cognitive testing before he was tested by Dr. Davila in March 2002. (Pl.'s Mot. to Reverse or Remand, Attach. A at 1; R. at 127-128). Therefore, Garcia's diagnosis of borderline intellectual functioning may be considered relevant to the basis for the ALJ's determination and non-cumulative. Evangelista, 826 F.2d at 140. Newness, however, is not dispositive. The evidence proffered must also be "material," which is indicated where the ALJ's decision "might reasonably have been different" had the evidence been considered. Id. (citations and internal quotations omitted). In this case, the ALJ's determination that Garcia is not disabled and is capable of performing light, unskilled work would not have been different had the new evidence been considered. Garcia's diagnosis of borderline intellectual functioning comports with the ability to perform "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time." 20 C.F.R. § 416.968.
Although the immateriality of Garcia's new evidence makes it unnecessary to reach a "good cause" analysis, Garcia's justification for his failure to present the evidence to the ALJ is not adequate to establish "good cause." "Good cause" for submitting new evidence requires a convincing reason for not seeking "the expert's opinion prior to the denial of [the] claim." Clem v. Sullivan, 894 F.2d 328,332 (9th Cir. 1990). Garcia claims that good cause exists because the new evidence was obtained pursuant to his second application for SSI benefits, and therefore did not exist at the time of his hearing or request for review by the Appeals Council. (Pl.'s Mem Supp. Mot. to Reverse at 10). However, the fact that new evidence is obtained "during another proceeding is not sufficient to explain why it was not produced earlier in [the prior] proceeding," and, therefore, does not represent good cause. Clem, 894 F.2d at 332.
IV. Conclusion
For the foregoing reasons, the Plaintiff's Motion to Reverse or Remand the Decision of the Commissioner is DENIED, and the Defendant's Motion for an Order Affirming the Decision of the Commissioner is GRANTED. The Commissioner's decision is AFFIRMED.
It is SO ORDERED.