Opinion
00 Civ. 2252 (JGK)
January 8, 2002
OPINION AND ORDER
Barbara Panos brings this action on behalf of her daughter, plaintiff Christine Panos, pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The plaintiff seeks review of a final decision of the Commissioner of Social Security (the "Commissioner") which determined that Christine was not entitled to Supplemental Security Income ("SSI") benefits. The defendant moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
On Noventer 9, 2001, Jo Anne B. Barnhart was sworn in as Commissioner of Social Security. She is automatically substituted as the defendant in this case pursuant to Fed.R.Civ.P. 25(d)(1).
The first issue on this motion is whether substantial evidence supports the Commissioner's finding that the plaintiff was not entitled to SSI benefits under Title XVI of the Social Security Act (the "Act") because she was not disabled. The second issue is whether additional evidence proffered by the plaintiff in the course of the proceedings before this Court warrants a remand of the case to the Commissioner to allow her to consider that evidence.
On May 13, 1992, the plaintiff applied for SSI benefits. (R. at 51-63.) An Administrative Law Judge ("ALJ") granted the application on May 25, 1995, finding that the plaintiff was disabled based on her right hemihypertrophy (an overgrowth of one half of the body) and Blount's disease (a deviation of the tibia from a straight line). (R. at 312-19.) Subsequent to this grant, Congress revised the definition of disability for children under age 18 seeking SSI benefits, and required the Commissioner to redetermine the eligibility of children who were already receiving SSI benefits if the change in the law might affect their eligibility. Pub.L. No. 104-193, § 211(c)(2)(A), 110 Stat. 2105, 2190 (1996).
On July 21, 1997, the Social Security Administration informed the plaintiff that it had reviewed her case and determined that she was not disabled "under the new definition of disability for children." (R. at 325.) The plaintiff filed a request for reconsideration on September 29, 1997 (R. at 329), which resulted in a hearing before a Disability Hearing Officer on September 30, 1997. (R. at 353.) After the hearing, the plaintiff was again found not to be disabled. (R. at 350.) She timely requested a hearing before an Administrative Law Judge. (R. at 366.)
That hearing, at which the plaintiff was represented by counsel, took place on September 10, 1998. (R. at 22.) The plaintiff (R. at 24-35, 38-39) and her mother (R. at 35-38, 39-45) testified and also submitted medical and school records in support of her claim. The ALJ considered the case de novo and, on October 28, 1998, concluded that the plaintiff was no longer under a disability as defined in the Act. (R. at 12.) In so doing, the ALJ found that the plaintiff's impairments, specifically her right hemihypertrophy and Blount's disease of the right knee, were severe, but did not meet or medically equal the clinical criteria of any impairment or condition found in 20 C.F.R. Part 404, Appendix I, Subpart P (the "Listing of Impairments"). (R. at 12.) The ALJ further found that the plaintiff's impairments did not result in marked or severe functional limitations, so that they could not functionally equal the criteria of any impairment or condition found in the Listing of Impairments. (R. at 12.)
The ALJ's decision became the final decision of the Commissioner on November 16, 1999, when the Appeals Council denied the plaintiff's request for review. (R. at 2-3.) This appeal followed.
I
The administrative record reflects the following facts. The plaintiff was born on September 7, 1986. (R. at 25.) At the time of her 1998 hearing before the ALJ, she lived with her mother and her two brothers in Smallwood, New York (R. at 28, 37). The extensive medical records in this case begin with an examination of the plaintiff at about six weeks of age that included a diagnosis of right hemihypertrophy, which had been present since birth. (R. at 100.) By March, 1990, the plaintiff required a two-inch heel lift in her left shoe, and had Blount's disease of the right knee, resulting in bowing and tripping. (R. at 217-18.)
At that time, the plaintiff was first seen by Dr. Allen Carl, an orthopedic surgeon (R. at 470), who evaluated her for possible surgical treatment. (R. at 218-19.) In June, 1990, the plaintiff underwent two surgical procedures: a high tibial osteotomy and a debulking of her right labial mass. (R. at 241.) She recovered well from this operation. (R. at 225, 461.)
Between June, 1990 and September, 1995, Dr. Carl continued to monitor the plaintiff's condition. (R. at 431-38, 440-45, 447, 452-53, 456-66.) He saw her at least once every six months, and paid particular attention to the difference in her leg lengths, the discrepancy in her chronological and bone ages, and the progress in her growth plates. (Id.) The plaintiff's hemihypertrophy continued, with the difference in leg lengths ranging from four centimeters (R. at 459) to over six centimeters (R. at 458). She continued to require a shoe lift to compensate for the disparity (R. at 440, 458, 460), although she was reluctant to use it as she got older (R. at 437-38). Her bone age lagged behind her chronological age by between one year and four months (R. at 456) and two years and three months (R. at 443).
In December, 1995, the plaintiff underwent her second orthopedic surgical operation, a hemi-epiphysiodesis to correct the discrepancy between her longer right leg and her left leg. (R. at 429, 430.) On March 28, 1996, Dr. Carl indicated that the plaintiff could resume her gym activities without restriction. (R. at 429.) A consultative examination by Dr. Joseph Grossman in June, 1997 found the plaintiff "impaired for prolonged, rapid walking and climbing, and for prolonged, repeated, vigorous. . .bending, stooping, [and] crouching," but found no impairment for "standing, sitting, lifting, carrying, pushing and pulling with hand and foot controls, vision, hearing, speech and travel." (R. at 478.) By September, 1997, her leg length difference was 5.6 centimeters, and Dr. Carl prescribed a one and one-half inch shoe lift. (R. at 472-73.) Her bone age was about three years less than her chronologic age at that point. (R. at 471.) Dr. Carl noted that the plaintiff no longer had Blount's disease. (Id.)
The plaintiff had a third orthopedic operation in December, 1997, a "minor surgical intervention" involving her knee. (R. at 45, 474.) Dr. Carl examined her again in May, 1998, finding that the difference in leg lengths was 4.8 centimeters, and opined that "[i]t looks pretty reasonable at this point. Hopefully we will be able to accomplish what we set out." (R. at 491.) Dr. Carl found that the plaintiff's bone age was "a year and a half" below her chronologic age. (R. at 492.) A report by Dr. Dangman, a radiologist, reflects her finding that the plaintiff's bone age was "just two standard deviations below [her] chronologic age," because her bone age was 10 years while her chronologic age was 11 years and 9 months, and one standard deviation was 10.8 months. (R. at 493.)
At the September 28, 1998 hearing, the plaintiff and her mother testified. The plaintiff testified that she had never been left back in school, and that she was not in special education classes there, but her schedule did have to be rearranged to avoid going up and down the stairs. (R. at 25-26.) The plaintiff had just begun seventh grade at the time of the hearing. (Id.) Her marks were average in fifth grade. (R. at 31.) In sixth grade, she was on the honor roll for the first marking period, but her grades went down thereafter because she missed "a lot" of school due to back pain, leg pain, and her December, 1997 surgery. (R. at 27.) She got along well with her teachers in sixth grade. (Id.) She occasionally had to leave school early because of her leg pain. (R. at 39.) She participated in gym class, but could not take part in all of the activities — particularly running games, climbing, tag, and the like. (R. at 28.) She did, however, play volleyball. (Id.)
The plaintiff's sixth-grade report card indicated 39 absences. (R. at 494.) The plaintiff's mother testified that these absences did not include the days that she was sent home from school because of her back pain. (R. at 45.)
The plaintiff's mother had never been called into school as a result of the plaintiff's behavior, nor had the plaintiff been put off the school bus. (R. at 31.) The plaintiff had no problem relating to her friends but got upset and angry when other students at school teased her about her physical condition. (R. at 38-39.) However, she had never had to leave school early, or to seek counseling, because of the teasing. (R. at 39.)
The plaintiff indicated that she had one friend in her neighborhood during the summers, with whom she would play board games and spend time in the pool. (R. at 28.) She also passed the time by playing board games with her little brother, watching TV, and playing with her dogs. (R. at 32.) She generally got along with her siblings and her mother and could attend to her personal needs in terms of feeding, bathing, and dressing herself, but she sometimes needed help cleaning her room and did not do any chores around the house. (R. at 29-30.)
The plaintiff's mother testified that the plaintiff got to school via a "handicap bus" while she was in a cast following her December, 1995 surgery. (R. at 36.) She further testified that the plaintiff had back pain due to scoliosis, as well as severe leg pain due to Osgood-Schlatter's disease which made it necessary for the plaintiff to take over-the-counter Advil every four hours. (R. at 37.) According to her mother, the plaintiff could not ride a bike or run, and was constantly complaining of pain in her right knee. (R. at 42.) Furthermore, the plaintiff had been teased at school, which would cause her to cry and seek her mother's comfort; such episodes usually lasted about half an hour, and would not stop the plaintiff from attending school the next day. (R. at 43.)
II
A court may set aside a determination by the Commissioner only if it is based on legal error or is not supported by substantial evidence in the record. See 42 U.S.C. § 405(g), 1383(c)(3); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981). Substantial evidence is "more than a mere scintilla;" it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Ramos v. Apfel, No. 97 Civ. 6435, 1999 WL 13403, at *3 (S.D.N.Y. Jan. 12, 1999).
Since August 22, 1986, 42 U.S.C. § 1382c(a)(3)(C)(i) has provided that an individual under the age of 18 "shall be considered disabled. . . if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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 12 months." Notwithstanding that provision, "no individual under the age of 18 who engages in substantial gainful activity. . . may be considered to be disabled." 42 U.S.C. § 1382 (c)(a)(3)(C) (ii).
Interim regulations interpreting this statute were in place in October, 1998, when the ALJ decided the plaintiff's case. See 20 C.F.R. § 416.926a (1998). Under the interim regulations, the first question was whether the claimant's impairment or combination of impairments meets or is "medically equivalent in severity to" an impairment in the Listing of Impairments. 20 C.F.R. § 416.926a(a) (1998). If so, the claimant would be found disabled as long as the regulation's durational requirements were met. Id.
If the claimant's impairment(s) did not meet or equal one in the Listing of Impairments, the interim regulations required the Commissioner to determine whether the impairment(s) were "functionally equivalent in severity to a listing." 20 C.F.R. § 416.926a(b) (1998). There were four standards used to determine functional equivalence, each of which had to be considered before a claim could be denied. Id. The standards were (1) "extreme limitation of one specific function, such as walking or talking"; (2) "extreme limitations" in one "broad area of development or functioning," such as social functioning, motor functioning, or personal functioning (self-care), or "marked limitation in two [such] areas"; (3) "chronic impairment(s) . . .characterized by frequent illnesses or attacks," producing effects which could be evaluated under the first two standards or "disabling functional limitations that are the same as the disabling functional limitations of a listed impairment with similar episodic criteria"; and (4) "[l]imitations related to treatment or medication effects," producing effects which could also be evaluated under the first two standards or "functional limitations that are the same as the disabling functional limitations of a listed impairment" where the listing is based on treatment that is itself disabling or that contributes to functional limitations. 20 C.F.R. § 416.926a(b) (1)-(4) (1998).
The following definitions were provided in 20 C.F.R. § 416.926a(c)(3) (1998):
(i) Marked limitation means —
. . .
(C) For children from age 3 to attainment of age 18, "more than moderate" and "less than extreme." Marked limitation may arise when several activities or functions are limited or even when only one is limited as long as the degree of limitation is such as to interfere seriously with the child's functioning.
(ii) Extreme limitation means —
(C) For children from birth to attainment of age 18, no meaningful functioning in a given area. There may be extreme limitation when several activities or functions are limited or even when only one is limited.
The areas of development or functioning to be considered in connection with the second standard for a claimant of the plaintiff's age were cognition/ communication, motor, social, personal (self-care), and concentration, persistence or pace. 20 C.F.R. § 416.926a(c)(4) (1998).
Final regulations interpreting 42 U.S.C. § 1382c(a)(3)(c)(i) went into effect on January 2, 2001. See 20 C.F.R. § 416.926a. Under the final regulations, the first question remains whether the claimant has an impairment or combination of impairments which meets or medically equals one in the Listing of Impairments. 20 C.F.R. § 416.926a(a). If she does not, her impairment(s) "must result in `marked' limitations in two domains of functioning or an "extreme' limitation in one domain. . . ." Id. The six domains of functioning are: acquiring and using information; attending and completing tasks; interacting and relating with others; moving about and manipulating objects; caring for oneself; and health and physical well-being. 20 C.F.R. § 416.926a(b)(1). The Commissioner is required to "assess the interactive and cumulative effects of all of the impairments for which [she has] evidence," and to consider the claimant's functioning in school and the effects of treatment, in making her determination. 20 C.F.R. § 416.926a(a).
The current regulations provide the following definitions at 20 C.F.R. § 416.926a(e):
(2) Marked limitation.
(i) We will find that you have a "marked" limitation in a domain when your impairment(s) interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. "Marked" limitation also means a limitation that is "more than moderate" but "less than extreme." It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.
. . .
(iv) For the sixth domain of functioning, "Health and physical well-being," we may also consider you to have a "marked" limitation if you are frequently ill because of your impairment(s) or have frequent exacerbations of your impairment(s) that result in significant, documented symptoms or signs. For purposes of this domain, "frequent" means that you have episodes of illness or exacerbations that occur on an average of 3 times a year, or once every 4 months, each lasting two weeks or more. We may also find that you have a "marked" limitation if you have episodes that occur more often than 3 times in a year or once every 4 months but do not last for 2 weeks, or occur less often than an average of 3 times a year or once every 4 months but last longer than 2 weeks, if the overall effect (based on the length of the episode(s) or its frequency) is equivalent in severity.
(3) Extreme limitation.
(i) We will find that you have an "extreme" limitation of a domain when your impairment(s) interferes very seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be very seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. "Extreme" limitation also means a limitation that is "more than marked." "Extreme" limitation is the rating we give to the worst limitations. However, "extreme limitation" does not necessarily mean a total lack or loss of ability to function. It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean.
. . .
(iv) For the sixth domain of functioning, "Health and physical well-being," we may also consider you to have an "extreme" limitation if you are frequently ill because of your impairment(s) or have frequent exacerbations of your impairment(s) that result in significant, documented symptoms or signs substantially in excess of the requirements for showing a "marked" limitation in paragraph (e)(2) (iv) of this section. However, if you have episodes of illness or exacerbations of your impairment(s) that we would rate as "extreme" under this definition, your impairment(s) should meet or medically equal the requirements of a listing in most cases. . . .
In determining that the plaintiff was not disabled, the ALJ first found that the plaintiff had never engaged in substantial gainful activity. (R. at 8.) He then found that the plaintiff did have severe impairments, "in that they have somewhat affected her ability to function on a daily basis while she was recovering from the performance of surgical procedures." (R. at 9.) However, "after carefully examining the pertinent sections" of the regulations, the ALJ concluded that she "[did] not have an impairment or combination of impairments which meet or medically equal the clinical criteria of any impairment or condition found at the Listing of Impairments." (Id.) This determination accorded with the opinion of a physician who reviewed the medical records in April, 1997 and compared them against the Listing of Impairments, and the plaintiff has pointed to no evidence that undermines the ALJ's finding. (R. at 332.)
The ALJ then proceeded to consider the four standards for functional equivalence identified in the interim regulations. In connection with the third and fourth standards, which related to chronic impairments and limitations resulting from required treatment or medication, he noted that the plaintiff had required hospitalization and surgery to correct her leg length difference, resulting in some absences from school, and that she was limited in her ability to perform some daily activities while recovering from treatment. (R. at 10.) However, the plaintiff subsequently returned to the performance of age-appropriate activities with no difficulties, except for limitations with regard to her ability to run for prolonged periods and to ride a bicycle. (Id.) The plaintiff was not disabled under these standards.
In connection with the second standard, the ALJ concluded that "the plaintiff's impairments cause no limitations from a cognitive, communicative, social and personal standpoint," or with respect to concentration. He noted that the plaintiff had "articulated well and was understandable" during the proceedings, demonstrating "no indication of a speech, language, or hearing problem." (R. at 11.) All of her grades were passing grades and some were better than average. (Id.) She had testified that "she [got] along well with her teachers, had no difficulties with her friends during the summer, and got along well with her family members," and although she got upset and angry when teased about her condition, that was "natural and justified," so she was not socially impaired. (Id.) She had stated that she was "able to perform all activities required of daily living," so she had no personal limitations. (R. at 10.) Finally, since her report card indicated no cognitive or concentration difficulties, and the plaintiff had testified that she plays board games and was on the honor roll prior to her 1997 surgery, the ALJ found that she had no limitations with respect to concentration. (R. 11.)
While the plaintiff's motor abilities were affected by her condition and treatments, the ALJ found these limitations "moderate," and "less than marked." (R. at 10.) He explained that the plaintiff went to regular gym classes and participated in some sports and games, such as volleyball, but not games that require running. (Id.) She exercised, and used a swimming pool during the summer. (Id.) The ALJ did note that the plaintiff's mother had stated that the plaintiff could not run or ride a bicycle. (Id.) However, he also took into account the report of the consultative examiner who had concluded that whereas the plaintiff was impaired for some prolonged and vigorous activities, she had no limitation with respect to the ability to stand, sit, lift, carry, or push and pull with hand and foot controls. (Id.)
Because the ALJ had found that the plaintiff's impairments did not meet or medically equal any listed impairment, and that she was only moderately impaired in one area of functioning, he concluded that the plaintiff was no longer under a disability within the meaning of the statute. The ALJ's findings also make it clear that he concluded that the plaintiff did not meet the first possible standard for disability — an extreme limitation in a particular function, such as walking or talking.
The evidence recounted by the ALJ amply supports his conclusions. He relied upon the testimony of the plaintiff herself as well as the school records, and the medical records which included the extensive reports by the plaintiff's treating orthopedic physician. While the plaintiff was impaired directly following her 1995 and 1997 surgeries, on both occasions she returned to school within six to eight weeks. (R. at 32-33.) There was ample evidence, as detailed by the ALJ, that the limitations on the plaintiff's motor functioning were only moderate, and not marked.
While the plaintiff's mother alleged that the plaintiff had developed Osgood-Schlatter's disease (R. at 37) and was "constantly" complaining of knee pain (R. at 42), Dr. Carl's notes did not reflect such a diagnosis but only noted that "[s]ometimes you can end up with some Osgood-Schlatter's disease there which is just an inflammation of where the tendon joins." (R. at 491.) Dr. Carl indicated that the plaintiff should start to take non-prescription medication such as Motrin or Advil to control her pain. (Id.) The plaintiff's testimony regarding pain indicated that she sometimes left school early because of leg and back pain (R. at 34, 39) but she did not mention pain in connection with her daily activities (R. at 29-30) or even when talking about doing jumping jacks in gym class (R. at 28). And her ability to engage in some sports such as volleyball and swimming undercuts any argument that the allegations of pain were sufficient in this case to render the plaintiff disabled. Cf. Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).
Because the ALJ's decision is supported by substantial evidence in the record, it will not be reversed. It should also be noted that the ALJ's findings and conclusions would have been sufficient to support denial of the plaintiff's claim under the final regulations, which require marked limitations in multiple domains of functioning or an extreme limitation in one such domain to support a finding of disability, if such regulations had been in place at the time of his decision.
III
The plaintiff's response to the pending motion presented additional evidence in the form of an affirmation, medical records, and school records.
More particularly, the plaintiff's mother asserts that the plaintiff's leg length discrepancy persists, as does leg pain and back pain. (Panos Aff. § 3.1.) The plaintiff's mother also recounts three incidents of the plaintiff's leg giving out between March, 2000 and May, 2001, which resulted in torn cartilage, pain and swelling, and a tibial fracture requiring a cast and orthotic devices. (Id. §§ 3.2, 3.4, 3.5.) The plaintiff's mother asserts that the plaintiff's grades in school have deteriorated as a result of her absenteeism, which is attributable to her medical condition, and that the plaintiff suffers from significant restrictions on walking, standing, and other activities, as well as emotional consequences of her condition. (Id. at 3-4.) In addition, the plaintiff's mother asserts that the plaintiff had a fourth orthopedic operation in May, 2000. (Id. § 3.)
The medical records submitted include treatment notes by Dr. Carl, dated June 9, 1999 through July 5, 2001. The notes verify that the plaintiff's knee gave out, leading to torn cartilage, pain and swelling, in March, 2000 (Mar. 14 and 23, 2000 treatment notes); that she slipped on the ice in March, 2001, causing pain and swelling in her knee (Mar. 14, 2001 treatment note); and that she had a fracture while playing basketball in May, 2001 (May 31, 2001 treatment note). In relation to the March, 2000 incident Dr. Carl noted that the plaintiff had gone roller skating several days before and he "[didn't] recall her ever having abnormalities to that knee before so I think that this is something that happened from whatever traumatic event arose from an unfortunate circumstance." (Mar. 14, 2000 treatment note.) The injuries in March 2000 and March 2001 each required the plaintiff to refrain from using the affected leg to bear weight for some period. (Mar. 23, 2000 and Mar. 14, 2001 treatment notes.) The May, 2001 fracture required her to wear a long legged cast for at least five weeks and afterwards to wear an orthotic device and refrain from bearing weight on that leg. (May 31 and Jul. 5, 2001 treatment notes.)
Dr. Carl's treatment notes confirm that the plaintiff had surgery in May, 2000. (May 31, 2000 treatment note.) Four weeks after that operation, Dr. Carl determined that the plaintiff could decide herself if she required any assistive devices when walking, but ordered her to stay out of gym class for another six weeks. (Id.) On July 5, 2000, Dr. Carl determined that the range of motion in the plaintiff's knee seemed "pretty good" and that there were no restrictions [on her activities] as long as she feels functional." (Jul. 5, 2000 treatment note.) On March 14, 2001, he again noted that there were no limitations on her activities, also noting that "[t]hey want to know if she can play softball." (Mar. 14, 2001 treatment note.) Dr. Carl continued to track the plaintiff's leg length difference, which was 3.6 centimeters on November 2, 2000. (Nov. 2, 2000 treatment note.) His goal in managing the leg length difference is to reduce it to under three centimeters, which might require an additional operation and a short leg cast afterwards. (Id.) The plaintiff continues to wear a shoe lift, currently one inch, on the left side. (Id.)
The plaintiff's additional school records reflected that she failed two classes in ninth grade and was absent 28 days out of 165 days in that school year. (Report card.) Her classes were arranged to reduce the need to switch floors, and she was excused from attending gym class. (Section 504 Accomodation Plan.)
Under the Act, a court may remand a disability case and order the Commissioner to consider additional evidence, "but only 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), 1383(c)(3). Thus, the plaintiff must show that the proffered new evidence is:
(1) new and not merely cumulative of what is already in the record, and that it is (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires in addition, a reasonable probability that the new evidence would have influenced the Commissioner to decide the claimant's application differently. Finally, claimant must show (3) good cause for her failure to present the evidence earlier.Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal citations omitted); see also Ramos, 1999 WL 13043, at *7.
The additional evidence submitted by the plaintiff provides no new information relevant to the time period for which benefits were denied, and therefore does not warrant a remand. The period under consideration on this appeal ends with the ALJ's decision, which was issued October 28, 1998. The earliest document submitted by the plaintiff in response to the present motion is dated June 9, 1999, and the affirmation by the plaintiff's mther recounts events which took place in 2000 and 2001. Because this evidence does not relate to the period at issue, there is no reasonable probability that the evidence would have influenced the Commissioner to decide the plaintiff's claim differently. See Tirado, 842 F.2d at 597.
In any event, the additional information would not necessarily support a finding of disability. The functional limitations recommended by Dr. Carl related to the plaintiff's May, 2000 surgery, from which she recovered well (Jul. 5, 2000 treatment note), and to her apparently unrelated falls and fracture (Mar. 23, 2000, Mar. 14, 2001, May 31, 2001, and Jul. 5, 2001 treatment notes). Indeed, the records tend to suggest that apart from the surgery period and her accidents, the plaintiff had few functional limitations, in view of the fact that she was able to roller skate and play basketball, and even sought to play softball. (Mar. 14, 2000, March 14, 2001, and May 31, 2001 treatment notes.) However, if the plaintiff believes there is new medical information that would support a finding of disability, she should submit a new application for SSI benefits. Ramos, 1999 WL 13043, at *8; cf.Vargas v. Sullivan, 898 F.2d 293, 297 (2d Cir. 1990).
Conclusion
For the reasons explained above, the defendant's motion for judgment on the pleadings is granted. The Clerk of the Court is directed to enter judgment and to close this case.
SO ORDERED.
. . .