Opinion
Civ. No. 2:11-cv-02724 (KM)
04-02-2014
LISA NEWMAN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the court upon the motion of Plaintiff, Lisa Newman (Docket No. 18), for reconsideration of the Court's March 21, 2014 Opinion and Order affirming the Social Security Commissioner's March 21, 2011 final decision denying benefits for the period of November 29, 2006 to November 5, 2009. (Docket Nos. 16, 17). At the time of my decision, I had not been furnished a copy of a February 22, 2012 Notice of Decision by Administrative Law Judge April Wexler. Out of caution, I therefore suggested that I would entertain a motion for reconsideration should anything in that February 2012 decision warrant it. Opinion (Docket No. 16) at 23. Having duly considered Ms. Newman's arguments and the February 2012 Decision, I will deny the motion for reconsideration.
I. BACKGROUND
The factual background of Newman's claim for disability insurance benefits ("DIB") is discussed in detail in my March 21, 2014 Opinion, and I will not recapitulate it in detail here. See Opinion at 1-10. The essential facts are these: Newman filed an application for DIB for a period of disability commencing on November 29, 2006. Compl. ¶ 4 (Docket No. 13) at 2. Newman's application was based on alleged neuropathy in both legs, as well as a mental impairment. Administrative Law Judge ("ALJ") James Andres denied her application in a decision dated November 5, 2009. Record of Proceedings (hereinafter "R _") (Docket No. 12) at 34-36. The Appeals Council denied Newman's request for appeal on March 21, 2011, and ALJ Andres' decision became the "final decision" of the Commissioner. R 1-5. I affirmed the final decision of the Commission my Opinion and Order of March 21, 2014.
Following ALJ Andres's denial of her first application, Newman filed a second application for benefits for a period commencing on November 6, 2009. That application was granted and Newman was adjudged disabled by ALJ April M. Wexler on February 22, 2012. When Newman appealed the denial of her first application to this Court, she did not submit a copy of ALJ Wexler's subsequent decision granting her second application. Newman indicated, however, that something about the second disability decision called into question the validity of the first. (Docket No. 13 at 1). In my Opinion denying her appeal, I granted permission for Newman to file a motion for reconsideration based on any "new evidence" contained in ALJ Wexler's decision granting benefits. That motion for reconsideration, and a copy of ALJ Wexler's decision, are now before me. (Docket No. 18).
Newman was procedurally estopped from asserting an earlier onset date by the denial of her first application.
II. DISCUSSION
A. Standard of Review
Motions for reconsideration are governed by Local Civil Rule 7.1 (i), which requires a brief from the movant concisely setting forth the matter or controlling decisions which the movant believes the Judge overlooked. Bowers v. Nat'l Collegiate Athletics Assoc., 130 F. Supp. 2d 610, 612 (D.N.J. 2001). The movant has the burden of demonstrating either: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); Beety-Monticelli v. Comm'r of Soc. Sec., 343 F. App'x 743, 747 (3d Cir. 2009) (non-precedential). Because the requirements are so stringent, motions for reconsideration are often denied; it is "an extraordinary remedy" to be granted "sparingly." A.K. Stamping Co., Inc., v. Instrument Specialties Co., Inc., 106 F. Supp. 2d 627, 662 (D.N.J. 2000) (quoting NL Indus., Inc., v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996)).
I do not, however, place great weight on that stringent standard under the peculiar circumstances here. In short, I invited this motion. See Opinion at 22-23. Because ALJ Wexler's motion was not in the record, I instructed Newman that I would entertain a reconsideration motion attaching that second decision should the circumstances warrant. Opinion at 23. Newman proffers that she assumed that ALJ Wexler's decision was part of the SSA Record in this case. (Docket No. 18 at 1). While that is not an overly persuasive explanation, I will nevertheless treat the decision as evidence not previously available and consider whether anything in it would change my decision.
B. New Evidence Meriting Remand
For the period November 29, 2006 through November 5, 2009, ALJ Andres denied benefits. For the period beginning November 6, 2009, ALJ Wexler found Newman disabled and granted DIB. Id. In her Appeal Brief, Newman suggested that the second ruling should be read as a concession that the first was wrong. ALJ Wexler's finding of disability was premised on bilateral neuropathy, and, Newman says, that condition resulted from surgery on November 29, 2006. Therefore, she concludes, she must have been disabled starting on November 29, 2006. (Docket No. 13 at 1).
Newman is essentially claiming that the second, favorable, determination is new evidence that merits remand of the November 5, 2009 decision to the SSA. See Opinion at 22. A court may remand a case to the agency 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." 42 U.S.C. § 405(g). Evidence not submitted to the ALJ may be reviewable as a basis for a court's decision whether to remand to the Commissioner for further proceedings. See Szubak v. Sec'y of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Such extrinsic evidence "must relate to the time period for which benefits were denied" and must not be solely of a "later acquired disability, or of the subsequent deterioration of the previously non-disabling condition." Id. The subsequent decision that a claimant is (or has become) disabled is not itself "new and material" evidence warranting remand. Allen v. Commissioner of Social Sec., 562 F.3d 646, 653 (6 th Cir. 2009); Cunningham v. Commissioner of Social Sec., 507 Fed App'x 111, 120 (3d Cir. 2012) (citing Allen with approval). Therefore, to demonstrate that remand is appropriate, Newman must show that the second decision was based on new and material evidence that she had good cause for not raising in the first proceeding. Id. at 653; Cunningham, 507 Fed App'x at 120.
Newman has not made that showing here. ALJ Andres and ALJ Wexler came to different conclusions regarding Newman's disabilities based on different evidence encompassing different periods of time. Although ALJ Wexler found that Newman was disabled as of November 6, 2009, her decision is devoid of any statements indicating that Newman was disabled for the period in dispute. I do not find that ALJ Wexler's conclusion requires, or even suggests, any basis for a remand for reconsideration of Newman's initial application.
1. Treatment of Evidence from Dr. Mills
Newman argues that ALJ Wexler relied on the consultative exam of Dr. Richard Mills from November 14, 2007—an exam also discussed in ALJ Andres's decision and my Opinion affirming it. See Docket No. 18 at 1-2; R 23, 228-31; Opinion at 6, 14, 17.
Dr. Mills reported that Newman drove herself to the November 14, 2007 exam. She got on and off the exam table without assistance, could transfer papers, and could put her shoes and socks on and off without difficulty. R 228. Newman's chief complaint was numbness in both anterior thighs, with pain. Id. Newman told Dr. Mills that the pain and numbness in the anterior thighs had continued since her surgery the year before. Id. She rated the severity of the pain as something between three and eight out of ten. Id. She stated that the pain increased with bad weather, with sitting for more than five to fifteen minutes, with standing more than five minutes, or with walking for about one block. She also stated that she had fallen, most recently in September. R 228-29.
Dr. Mills reported that, during her physical exam, Newman was awake and alert. Id. Newman's mental status was normal: her memory was normal, she exhibited good calculations, and a "good fund of knowledge." She denied depression or hallucinations. Id. at 228-29. Her cranial nerves II-XII were intact. Her sensation was intact to pinprick and light touch except for a "small," bilaterally-symmetrical 8 inch by 2 inch region on her anterior thighs. Id. at 229. In this area, she had 20% of pinprick and light touch sensation, and there was pain caused by palpating the area; Dr. Mills described it as a "painful paresthesia." Id. Her motor strength was 5/5 and her coordination and finger-nose Romberg testing was intact. Id. He noted that she had a limping gait with no drift. She was able to do tandem walking but had to hold onto the wall because of the pain in her legs. Id. Her range of motion was intact except that her lumbar spine flexion was limited to 85 degrees because of posterior thigh pulling. Id. In a seated position, she was able to raise her straight leg 90 degrees bilaterally. She was not able to squat, but was able to walk on her heels and toes. She had no muscle weakness or loss of reflex. Id.
After summarizing the exam, Dr. Mills reported that his impression was that Newman had a history of painful numbness with paresthesia in both anterior thighs following her abdominal surgery. Id. He wrote that her ability to sit was limited to five to fifteen minutes, her ability to stand was limited to five minutes, and her ability to walk was limited to one block. Id.
ALJ Andres, in his decision, explained that he did not rely on Dr. Mills' opinion because he found that Mills' conclusions merely recapitulated Newman's complaints and were not consistent with his exam—the results of which were largely normal. R 23. I found that this conclusion was reasonable in light of the evidence from Mills' neurological exam, as well as the other medical evidence in the record. Opinion at 17.
It is true that ALJ Wexler, disagreeing with ALJ Andres to some extent, identified no credibility issues with Dr. Mills' opinion. Wexler Decision (Docket No. 18-1) at 9. But this was not the only basis for ALJ Wexler's finding of disability. ALJ Wexler also cited a second consultative exam conducted on May 4, 2010—well after ALJ Andres' November 2009 decision. Id. According to the Wexler Decision, at this second exam, Dr. Mills reported that Newman was unable to sit on the exam table for more than five minutes without discomfort, and climbed off of the table. Id. When she was seated on a "regular exam room chair," Newman had to sit with her legs propped up on a second chair. She was unable to squat. Id. ALJ Wexler found that Newman's medical records, tests, and presentations supported the limitations described by Mills, and by a second neurologist, Dr. Theodore Conte. Id.
The record relating to Newman's second application for DIB was not submitted with her motion for reconsideration. I rely only on ALJ Wexler's description of Mills' evidence and the other evidence.
While ALJ Wexler treats the evidence from Dr. Mills with greater deference than ALJ Andres did, her decision does not in any way indicate that the evidence regarding the 2007 exam constitutes new evidence that was not considered by ALJ Andres. There is no information regarding the exam that appears in ALJ Wexler's opinion that did not appear in ALJ Andres's opinion. Rather, it appears that the two ALJs came to different conclusions, based not only on Mills' 2007 examination, but on further evidence that was available to ALJ Wexler. (And of course it is also possible that Newman's condition deteriorated between 2007 and 2010.) Therefore, the evidence from Newman's 2007 exam by Dr. Mills does not provide a basis under 42 U.S.C. § 405(g) for remanding the final determination of Newman's disability from November 2006 to November 2009.
2. Other Evidence Relied Upon by ALJ Wexler
ALJ Wexler's decision does not rely solely, or even predominantly, on Dr. Mills' 2007 assessment. As discussed above, she considered Dr. Mills' 2010 exam together with the evidence from the 2007 exam. Wexler Decision at 9. Id. ALJ Wexler also considered evidence from Dr. Conte. Conte is a neurologist whose opinion does not appear in the record underlying Newman's first application; he is characterized as a "treating" physician in ALJ Wexler's decision. Id. at 8. Dr. Conte reported that Newman had "decrease in light touch" along the anterior aspect of her thighs and with the lateral aspects of the thighs, and that she had early extinguishing vibratory sensation of the toes. Id. at 9. Dr. Conte found that Newman could stand or walk for less than two hours, would require unscheduled breaks because of her pain level, and could occasionally lift ten pounds. Id. at 10. ALJ Wexler gave "great weight" to the evidence from Dr. Conte because he was Newman's treating physician. Id. (citing 20 C.F.R. 404.1527(d)(2) and 416.927(d)(2)).
ALJ Wexler also discussed objective medical evidence from an electromyography, nerve conduction studies ("NCS"), and an MRI. Id. at 8. The electromyography of Newman's right paraspinal muscles showed "denervation in the bilateral L5 through S1 region motor nerve root level and hyperirritability in the right sides L4 through L5 regions motor nerve root level." Id. There was also hyperirritability in the bilateral peroneus longus and bilateral gastrocnemius muscles. Id. The NCS were consistent with bilateral sensory neuropathy affecting the bilateral femoral cutaneous nerves, and motor neuropathy affecting the right tibial nerve with reduced amplitudes at the ankle and knee. Id. Newman's MRI showed desiccated posterior central disc protrusion abutting the distal spinal cord's ventral aspect and the T11 through T12 regions. Id. There was also evidence that the disc bulge caused narrowing (stenosis) of the neural foramina bilaterally and in the L5 through S1 regions.
I must conclude that this evidence is new because it was not contained in the record filed in this Appeal from ALJ Andres's decision. The exact dates of the tests discussed in ALJ Wexler's opinion are not disclosed.
With the exception of the 2007 exam by Dr. Mills and Newman's own allegations, all of the evidence in ALJ Wexler's decision appears to post-date the first decision by ALJ Andres. The medical test results show a marked change from those discussed in the record from Newman's first DIB application. In 2007, her NCS was normal; no neuropathy was found along the peroneal, tibial, or sural nerves and no evidence of radiculopathy was found. R 194. Similarly, her 2007 MRI showed a herniated disk, but without any significant stenosis. R 21, 247.
ALJ Wexler's decision noted that Newman testified that she began to experience symptoms after her 2006 surgery. Wexler Decision at 8.
Again, ALJ Wexler's decision does not provide the dates for these tests. None of them, however, appears in the record of the appeal from the decision of ALJ Andres, and I must conclude that they are more recent. Newman's motion for reconsideration does not assert that any piece of evidence raised therein, other than Dr. Mills' 2007 exam, pre-dated ALJ Andres's November 5, 2009 decision.
ALJ Wexler's discussion of this evidence does not in any way relate the new evidence back to the 2006 - 2009 period in dispute. And although ALJ Wexler approached the evidence from Dr. Mills with greater deference, she did so in light of (1) evidence from a second exam by Dr. Mills occurring after the period at issue in the first application, (2) the other medical evidence in the record from Dr. Conte and test results. See id. at 8-9. Overall, the 2012 decision does not contain any "new evidence" relating back to the relevant period that merits a remand of ALJ Andres' 2009 decision.
ALJ Wexler also discussed Newman's mental impairment in light of more recent evidence. It appears that Newman continued seeing psychologist Dr. Raymond Dimetrosky after her 2009 hearing before Judge Andres. See Wexler Decision at 9. Based on evidence from Dimetrosky and the state agency medical consultant, ALJ Wexler found that Newman had memory and concentration impairments due to depression. Id. at 8-9.
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As discussed above, new evidence permitting remand "must relate to the time period for which benefits were denied." Szubak v. Sec'y of Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). There is no indication that the evidence before ALJ Wexler, or her findings, dated from before November 6, 2009 or relates to the issue of Newman's disability before that date. In fact, ALJ Wexler himself saw no basis for reopening Newman's prior application. Id. at 5 (citing 20 C.F.R. 404.988). Therefore, the new evidence cited ALJ Wexler's decision shows, at best, a "deterioration" of the neuropathy impairment recognized by ALJ Andres. See R 19-20; Opinion at 12. See also Szubak, 745 F.2d at 833. Such evidence does not provide a basis for remand.
Nothing about ALJ Wexler's subsequent finding of disability undermines my conclusion that ALJ Andres's decision denying benefits for the period of November 29, 2006, to November 5, 2009, was supported by substantial evidence. Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). As I explained in my Opinion denying Newman's appeal, ALJ Andres's decision was well-supported by the evidence of Newman's alleged disability during that period. Opinion at 16-17, 20, 23 (discussing evidence before ALJ Andres and concluding that he did not err as matter of law and that decision was supported by substantial evidence).
III. CONCLUSION
In sum, ALJ Wexler's decision does not tend to demonstrate that the decision of ALJ Andres, or my decision upholding the decision of Andres, was incorrect. ALJ Wexler's February 22, 2012, decision is not new evidence that would justify reconsideration of my March 21, 2014 Opinion or furnish a basis for a remand.
Accordingly, Newman's motion for reconsideration is DENIED.
An Order will be entered in accordance with this Opinion.
_________________
Hon. Kevin McNulty
United States District Judge