Perez v. Chater, 902

Citation1996 WL 75776,77 F.3d 41
Decision Date22 February 1996
Docket NumberD,No. 902,902
Parties, Unempl.Ins.Rep. (CCH) P 15119B Ramona PEREZ, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Administration, Defendant-Appellee. ocket 95-6131.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

James M. Baker, Bronx Legal Services, New York City, for Plaintiff-Appellant.

Lorraine S. Novinski, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Steven M. Haber, Assistant United States Attorney, of counsel), for Defendant-Appellee.

Before LUMBARD, VAN GRAAFEILAND and MINER, Circuit Judges.

MINER, Circuit Judge:

Plaintiff-appellant Ramona Perez appeals from a judgment of the United States District Court for the Southern District of New York (Keenan, J.) affirming the decision of the Secretary of Health and Human Services (the "Secretary") to deny Perez' application for social security disability insurance benefits ("SSD") and supplemental security income benefits ("SSI"). 1 The district court found that the Secretary's determination that Perez was not disabled prior to February 13, 1992 was supported by substantial evidence.

For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

In March of 1990, Perez applied for SSD and SSI benefits under Title II and Title XVI of the Social Security Act. 42 U.S.C. §§ 401 et seq., 1381 et seq. The Secretary rejected both applications in May of 1990. On October 11, 1991, Perez filed a second set of applications for SSD and SSI benefits, alleging that she had been unable to work since December of 1989 due to back pain and arthritis in her knees. These applications also were denied, and Perez requested a hearing before an ALJ to review her October 11, 1991 applications.

On December 16, 1992, a hearing was held before an ALJ. Perez testified that she was 47 years old, had completed eight years of education, and had worked recently as a taxi driver and a sewing machine operator. She also testified that she had been unemployed The ALJ reviewed Perez' medical records, including a May 16, 1990 report from Perez' treating physician, Dr. A. Celestin. This report stated that Dr. Celestin had treated Perez for arthritis of the knees from January 17, 1988 through March 19, 1990. The report noted that Perez had tenderness in her knees, but that her range of motion was normal. Dr. Celestin also reported that Perez' gait and station were normal, and that she did not need the assistance of orthotic devices. Dr. Celestin indicated that Perez' arthritic knee pain had been aggravated by her recent weight gain.

since 1987, and that she was unable to work as a result of knee and back problems.

The ALJ also considered a February 25, 1991 report stating that a computerized tomography ("CT") of Perez' brain and cervical spine revealed no abnormalities except for a herniated disc at disc level C4-5. In addition, two other reports stated that magnetic resonance imagings ("MRIs") of the spine, performed in August of 1991, revealed no evidence of disc herniation, but did reveal minimal centrally bulging discs at levels C4-5, C5-6, and C6-7 and disc degeneration at other disc levels.

The medical record before the ALJ also contained a February 20, 1992 report prepared by Dr. Agustin Sanchez. Dr. Sanchez' report indicated that he had examined Perez for the first time on February 13, 1992, and that Perez had complained of back pain, numbness in her right hand, and decreased strength. The report detailed Perez' limited range of motion of the knees and spine and her decreased strength. Dr. Sanchez concluded that Perez was limited to lifting and carrying less than five pounds of weight, and that she was unable to stand and/or walk more than two hours per day and to sit more than six hours per day.

Finally, the ALJ considered two additional reports. A November 12, 1992 report prepared by Dr. M. El-Dakkak stated that Perez had undergone arthroscopic surgery on both knees. The report indicated that Perez was capable of lifting and carrying up to ten pounds of weight, continuously standing for two hours, continuously sitting for two hours, and alternately sitting or standing at one time for three hours. A report prepared by Dr. Mario Mancheno indicated that he had examined Perez on May 1, 1992 and had concluded that she was capable of light lifting and carrying, light pushing and pulling, and that her sitting was not restricted.

On January 28, 1993, the ALJ determined that, as of February 13, 1992, Perez was disabled for the purpose of receiving benefits under the Social Security Act. As a result of the ALJ's decision, Perez was not entitled to SSI benefits for the period between October 11, 1991, the date of her SSI application, and February 13, 1992. Because the ALJ determined that Perez had not become disabled prior to December 31, 1989, the date on which her disability insured status expired, Perez was not entitled to any SSD benefits. 2

After the ALJ issued his decision, Perez requested review by the Appeals Council and submitted three pieces of new evidence: (1) Dr. Celestin's treatment notes for the period of January 17, 1988 through March 19, 1990; (2) an April 21, 1993 report from Dr. Celestin; and (3) an April 16, 1993 report from Dr. Sanchez. The new report from Dr. Celestin, who was Perez' treating physician from 1988 to 1990, indicated that Perez suffered from arthritis in both of her knees, and that she could stand continuously for up to one hour, sit continuously for up to five hours, and alternately sit or stand at one time for one hour. Dr. Sanchez' report of April 16, 1993 indicated that he had treated Perez for back pain and arthritis of the knees, and that Perez' last visit had been on February 13, 1992. Dr. Sanchez stated that Perez could stand continuously for up to thirty minutes, sit continuously for up to thirty minutes, and alternately sit or stand for up to one hour at a time. The Appeals Council denied Perez' request for review, and stated that it had considered the new evidence and that it did not provide a basis for changing the ALJ's decision.

Perez sought review of the Secretary's decision in the district court, pursuant to 42 U.S.C. § 405(g). Perez then moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), and the Secretary cross-moved for judgment on the pleadings. On April 7, 1995, the district court denied Perez' motion and granted the Secretary's motion. Perez v. Shalala, 890 F.Supp. 218 (S.D.N.Y.1995). Relying on Eads v. Secretary of Department of Health & Human Services, 983 F.2d 815 (7th Cir.1993), the district court held that the new evidence submitted to the Appeals Council did not form part of the administrative record for review and that it was not required to consider the new evidence. Nonetheless, the district court stated that, even if it were to consider the new evidence submitted to the Appeals Council, this evidence did not support Perez' contention that she was disabled prior to February 13, 1992. Accordingly, the district court concluded that the Secretary's decision was supported by substantial evidence. This appeal followed.

DISCUSSION

On appeal, Perez contends that the district court erred in holding that the evidence submitted to the Appeals Council following the decision of the ALJ did not become part of the record for the purpose of judicial review. She also claims that, because this evidence contradicted the ALJ's finding that she was not disabled prior to February 13, 1992, the Secretary's decision is not supported by substantial evidence. Finally, Perez contends that she was denied a fair hearing because the ALJ did not fully develop the administrative record.

1. Contents of the Record

A request for Appeals Council review of an ALJ's decision is the fourth and final stage in the administrative process of adjudicating claims for benefits under the Social Security Act. 3 Social Security regulations expressly authorize a claimant to submit new and material evidence to the Appeals Council when requesting review of an ALJ's decision. 20 C.F.R. §§ 404.970(b), 416.1470(b). If the new evidence relates to a period before the ALJ's decision, the Appeals Council "shall evaluate the entire record including the new and material evidence submitted ... [and] then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record." § 404.970(b); see also § 416.1470(b).

When the Appeals Council grants review, the decision of the Appeals Council is the final decision of the Secretary. See 20 C.F.R. §§ 404.981, 416.1481. However, if the Appeals Council denies review, the ALJ's decision becomes the Secretary's final decision. See §§ 404.981, 416.1481. The final decision of the Secretary is subject to judicial review. 42 U.S.C. § 405(g).

In reviewing the Secretary's decision in the present case, the district court found that the new evidence submitted to the Appeals Council did not form part of the administrative record for judicial review. However, Perez argues that this evidence is part of the administrative record even when the Appeals Council denies review of the ALJ's decision.

The circuits that have addressed this question have reached different conclusions. The Sixth and Seventh Circuits have held that, when the Appeals Council denies review, the administrative record does not include new evidence first submitted to the Appeals Council. See Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir.1993); Eads, 983 F.2d at 817. In Eads, the Seventh Circuit held that, because it is the ALJ's decision that is reviewed by the district court when the Appeals Council denies review, "[t]he correctness of that decision depends on the evidence that was before [the ALJ]." 983 F.2d at 817. The court stated that to hold otherwise...

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