Opinion
Civil Action No. 06-30005-KPN.
December 22, 2006
This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("Commissioner") regarding an individual's entitlement to Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") pursuant to 42 U.S.C. §§ 405(g) and 1381(c)(3). Ronald Harrison ("Plaintiff"), proceeding pro se, asserts that the Commissioner's decision denying him such benefits — memorialized in a April 30, 2004 decision of an administrative law judge — is in error. He has filed a motion for "reversal" and the Commissioner, in turn, has moved to affirm.
With the parties' consent, this matter has been assigned to the undersigned for all purposes, including entry of judgment. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b). For the reasons that follow, Plaintiff's motion to reverse will be denied and the Commissioner's motion to affirm will be allowed.
I. BACKGROUND
Plaintiff has been seeking SSDI and SSI benefits for some time. He originally applied for such benefits in 1999, alleging that he stopped working on August 30, 1995, at age thirty-nine, due to back and leg pain. On May 17, 2000, an administrative law judge issued a decision denying Plaintiff such benefits, a decision which the Appeals Council then declined to review. Thereafter, on October 7, 2003, District Judge Michael A. Ponsor, adopting this court's report and recommendation, dismissed Plaintiff's pro se appeal and entered judgment for the Commissioner in that case. See Harrison v. Barnhart, 04cv30120-MAP.
In the interim, on June 5, 2002, Plaintiff reapplied for SSDI and SSI benefits, again alleging that he stopped working on August 30, 1995, due to back pain. (Administrative Record ("A.R.") at 89-91, 110.) On April 30, 2004, following a hearing at which both Plaintiff, then represented by counsel, and a vocational expert testified, an administrative law judge (hereinafter "the ALJ") issued a thoughtful and comprehensive decision in which he determined that Plaintiff was not disabled. (A.R. at 30.) According to the ALJ, the record before him revealed that, while Plaintiff has severe impairments that preclude him from performing any of his past relevant work, he maintains the residual functional capacity to perform a significant range of sedentary jobs that exist in the national economy. (A.R. at 29-30.)
Undeterred, Plaintiff again requested review by the Appeals Council, at which time Plaintiff's counsel tendered six pieces of "additional evidence." (See A.R. at 9-10.) In declining review, the Appeals Council determined that the ALJ had not erred and that the additional evidence "d[id] not provide a basis for changing the [ALJ]'s decision." (A.R. at 6-7.)
Plaintiff, proceeding pro se, then timely filed this appeal. Unfortunately, his short, handwritten complaint is hardly the model of clarity. In essence, Plaintiff asserts that "the full nature of [his] disability" was "minimalized and misinterpited [sic]" by the ALJ. (Complaint at 1.) As support, Plaintiff refers to (and attaches) four of the six pieces of additional evidence that he previously submitted to the Appeals Council, i.e., updated letters from several of his treating sources. Nowhere in his complaint, however, does Plaintiff either attack the Appeals Council's actions or request a remand.
In due course, Plaintiff filed a handwritten motion for "reversal." Like his complaint, Plaintiff's motion is quite brief, consisting of only several handwritten sentences. At its core, Plaintiff's motion contends that the "four letters [attached to his complaint] support my case [and] counter those statements made by the ALJ as to the validity of my disability." (Document No. 11 at 1.) Continuing, Plaintiff asserts that yet another letter from his "current therapist," Charna Schliapniak, a licensed social worker, "states that I have a disability based on mental health problems." ( Id.) A copy of that letter, dated May 11, 2006, is attached to Plaintiff's motion. In response, the Commissioner filed a motion for an order affirming her decision and the court took both motions under advisement.
II. DISCUSSION
The Commissioner makes a host of compelling arguments, many of which revolve around the typical standard of review for these cases, that is, whether the ALJ's decision should be affirmed as being grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Most of these arguments, persuasive though they are, need not be addressed. Instead, the Commissioner's motion will be allowed (and, hence, Plaintiff's motion denied) because of her procedural argument that the additional evidence Plaintiff has submitted — the sole underpinnings of his appeal — is simply an inadequate basis upon which to reverse the ALJ.
The First Circuit has made it clear that it is improper for a district court "[t]o weigh . . . new evidence as if it were before the ALJ." Mills v. Apfel, 244 F.3d 1, 4 (1st Cir. 2001) (holding that to do so would be "a very peculiar exercise and (to us) one that distorts analysis") (emphasis, citation, and internal quotation marks omitted). As Judge Boudin put it:
The ALJ can hardly be expected to evaluate or account for . . . evidence that he never saw. At best, the reviewing court ends up asking and answering some other question without properly articulating it-which is a recipe for confusion ( e.g., how likely is it that this evidence would alter the result if it had been before the ALJ).Id. The same holds true here. Like in Mills, this court is unable to reverse the ALJ on the basis of Plaintiff's subjective assertion that the additional evidence "prove[s] that [he] ha[s] a serious injury and should have a full disability." (Complaint at 2.) See also Ortiz Rosado v. Barnhart, 340 F. Supp. 2d 63, 66 (D. Mass. 2004) (in which this court observed that it must review an administrative law judge's decision "based `solely on the evidence presented to the ALJ'") (quoting Mills, 244 F.3d at 5). Accordingly, there are no grounds to reverse the ALJ's decision.
The court adds three other points. First, both the First Circuit and this court have recognized that there exists an avenue for a claimant to challenge the Appeals Council's rejection of additional evidence. See Mills, 244 F.3d at 4-7; Ortiz Rosado, 340 F. Supp. 2d at 67-69. But that avenue is exceedingly narrow, i.e., the Appeals Council's rejection must be shown to "rest on an explicit mistake of law or other egregious error." Mills, 244 F.3d at 5 (citing Service v. Dulles, 354 U.S. 363 (1957)). Here, Plaintiff has not challenged the Appeals Council at all, let alone shown that its actions were "egregious." See Ortiz Rosado, 340 F. Supp. 2d at 67 (applying Black's Law Dictionary (7th ed. 1999) definition of "egregious": "[e]xtremely or remarkably bad; flagrant").
Second, at least one of the pieces of allegedly "new" evidence — a note from Michael Polczwartek, a clinical supervisor at Baystate Medical Center's Sloan Clinic for Alcohol and Drug Services — is not new at all. It is dated December 26, 2002, which is more than sixteen months before the ALJ issued his decision with respect to the current appeal. Thus, while the court is reluctant to analyze on its own any additional evidence, this seemingly state note would appear to carry virtually no weight.
Similarly exaggerated is the letter from Ms. Schliapniak which does not state that Plaintiff is "disabled," as he asserts. The letter merely notes that Plaintiff is obtaining treatment for "his depression problem and medical condition," that he "is on a waiting list to see a psychiatrist," and, as a "P.S.," that, in Ms. Schliapniak's opinion, "his psychiatric condition is keeping him from working, at this time." The statements are hardly conclusive evidence of Plaintiff's disability, even assuming Ms. Schliapniak was entitled to make such an ultimate determination, which she most certainly is not. See generally Social Security Ruling 96-5p (July 2, 1996). See also 20 C.F.R. § 416.927(e)(1) (2006) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled."); Arroyo v. Sec'y of Health Human Servs., 932 F.2d 82, 89 (1st Cir. 1991) (administrative law judge not required to accept conclusions of treating physician on ultimate issue of disability); Sitar v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982) (similar).
Third, the court recognizes, as the Commissioner charitably points out, that it maintains the power to remand an "additional evidence" appeal in certain limited circumstances. See 42 U.S.C. § 405(g) (sentence six). However, as the Commissioner also asserts, the burden of meeting the requirements for such a remand is on the claimant. See Lisi v. Apfel, 111 F. Supp. 2d 103, 107 (D.R.I. 2000) (citing Evangelista v. Sec'y of Health Human Servs., 826 F.2d 136, 139 (1st Cir. 1987)). Here, Plaintiff has neither undertaken to lift that burden nor even asked for a remand. Faced only with Plaintiff's cursory, and unconvincing, motion, the court has no choice but to deny his request that the ALJ's decision be reversed.
III. CONCLUSION
For the foregoing reasons, Plaintiff's motion to reverse is DENIED and the Commissioner's motion to affirm is ALLOWED.
IT IS SO ORDERED.