Lisi v. Apfel

• Citation: 111 F.Supp.2d 103
• Decision Date: 05 September 2000
• Docket Number: C.A. No. 98-024-L.
• Parties: Salvatore J. LISI, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: Rhode Island Supreme Court

111 F.Supp.2d 103

Salvatore J. LISI, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

C.A. No. 98-024-L.

United States District Court, D. Rhode Island.

September 5, 2000.

David B. Green, Green, Greenberg & Nesselbush, Providence, RI, for Plaintiff.

Robin E. Feder, U.S. Attorney's Office, Providence, RI, for Defendant.

DECISION AND ORDER

LAGUEUX, District Judge.

Salvatore J. Lisi ("plaintiff") brought this suit under 42 U.S.C. § 405(g)(1994), seeking review of the final decision of the Commissioner of Health and Human Services ("Commissioner") denying disability insurance benefits. After reviewing the Commissioner's decision, United States Magistrate Judge David L. Martin issued a Report and Recommendation, recommending that the case be remanded to the Commissioner because of the existence of what he concluded to be new and material evidence. Upon review, this Court declines to adopt Magistrate Judge Martin's recommendation and concludes that the decision of the Commissioner should be affirmed.

I. Background and Procedural History

Plaintiff was born on May 10, 1942. In the relevant past, he has worked as a truck driver/helper for a furniture company, delivering furniture and appliances. His precise educational background is unclear from the record. Plaintiff was last eligible for disability insurance benefits on December 31, 1992.

On May 8, 1995, plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 405(g), alleging an inability to work since March 1, 1987 due to pain in his joints, particularly his fingers, knees, elbows and wrists. The application was initially denied on May 30, 1995 and denied again, after a request for reconsideration of the evidence, on July 13, 1995. Plaintiff appealed the denial to an Administrative Law Judge ("ALJ"). The ALJ held a hearing on July 30, 1996, at which plaintiff appeared with counsel and testified. No medical advisor was present at the hearing.

At the hearing, plaintiff testified that he began experiencing pain in his fingers, knees, elbows, wrists and other joints at the beginning of 1987 and that by the end of 1988 he could no longer work. (R. at 35.) Plaintiff further testified that he sought treatment in 1987 with Dr. Howard Gandler, who diagnosed arthritis and gout.¹ (R. at 36.) Plaintiff also testified that Dr. Gandler referred him to Dr. Bernard Zimmerman, whom he continues to see, when Dr. Gandler moved to Texas, but plaintiff did not specify when this referral occurred. See id.

The first objective evidence in the record of plaintiff's treatment is a medical record from the Rheumatology Clinic at Roger Williams Hospital dated January 22, 1992. (R. at 132.) The medical record indicates that plaintiff was referred by Dr. Gandler after presenting two and a half years earlier with knee pain and swelling. See id. Additional medical records from Roger Williams cover the period from January, 1992 to March, 1995 and generally indicate treatment for, among other things, gout and arthritis. (R. at 132-144, 150-152, 160-163.)

The record also contains two letters from Dr. Zimmerman, one dated May 30, 1995 and one dated April 19, 1995, indicating that plaintiff is being treated by him for gout and arthritis. (R. at 164, 175.) The letter dated May 30 indicates that Dr. Zimmerman first saw plaintiff in 1992; however, the letter dated April 19 states that Dr. Zimmerman first saw plaintiff on August 11, 1994. See id.

According to the record, plaintiff has also been treated for a variety of other conditions, including depression, hypertension and anxiety, (R. at 41, 98, 121-131, 145, 149, 164, 175); however, these have no bearing on plaintiff's current claim.²

On August 9, 1996, the ALJ determined that plaintiff was not entitled to disability benefits. Specifically, the ALJ noted that, because plaintiff's insured status had expired on December 31, 1992, he had to establish a disability prior to that date and continuing to the date of his application. See Torres v. Secretary of Health and Human Servs., 845 F.2d 1136, 1138 (1st Cir.1988); Deblois v. Secretary of Health and Human Servs., 686 F.2d 76, 79 (1st Cir.1982). The ALJ concluded that plaintiff did not have "any impairment or impairments which have more than a minimal restriction on his ability to perform basic work related activity[,]" (R. at 18), and therefore did not have a "severe" impairment prior to December 31, 1992. Therefore, the ALJ concluded at the second step of the five-step process for determining disability that plaintiff was not under a disability at any time through the date of the decision.³ The ALJ based his conclusion generally on a lack of objective medical evidence, prior to December 31, 1992, supporting plaintiff's allegations and a determination that plaintiff's testimony regarding his limitations was not credible given a number of inconsistencies in the record.

Plaintiff requested review of the ALJ's decision by the Appeals Council. The Appeals Council denied this request on November 18, 1997, rendering the ALJ's August 9, 1996 decision the final decision of the Commissioner.

On January 20, 1998, plaintiff filed a complaint in this Court seeking to reverse the ALJ's decision or, alternatively, to remand for reconsideration. Specifically, plaintiff asserts two independent reasons for reversal or remand: 1) that new evidence exists that requires the ALJ's consideration and 2) that the ALJ's decision is not supported by substantial evidence. The Commissioner filed an answer to plaintiff's complaint and a motion for an order affirming the decision of the ALJ. The matter was referred to Magistrate Judge Martin for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On November 23, 1999, Magistrate Judge Martin issued a Report and Recommendation, recommending that the case be remanded to the ALJ because of the existence of new and material evidence. Upon reaching this conclusion, Magistrate Judge Martin declined to reach plaintiff's alternate argument regarding substantial evidence.

On December 9, 1999, the Commissioner objected to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff filed a motion to adopt the Report and Recommendation. On January 13, 2000, this Court heard oral argument and took the matter under advisement. The case is now in order for decision.

II. Legal Standards

The role of a district court in reviewing a decision of the Commissioner is limited because, although questions of law are reviewed de novo, "[t]he findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive[.]" 42 U.S.C. § 405(g)(1994). The term "substantial evidence" has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

The determination of substantiality must be made upon an evaluation of the record as a whole. See Ortiz v. Secretary of Health and Human Services, 955 F.2d 765, 769 (1st Cir.1991)("We must uphold the Secretary's findings ... if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.")(quoting Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981)). However, this Court must avoid reinterpreting the evidence or otherwise substituting its own judgment for that of the Commissioner. See Colon v. Secretary of Health and Human Services, 877 F.2d 148, 153 (1st Cir.1989). Indeed, the resolution of conflicts in the evidence is for the Commissioner, not the courts. Rodriguez, 647 F.2d at 222(citing Richardson, 402 U.S. at 399, 91 S.Ct. 1420).

The standard of review is different where remand is sought on the grounds of new evidence. A decision of the Commissioner denying benefits can be remanded for the taking of additional evidence "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)(1994). Thus, to establish an entitlement to a remand for the consideration of new evidence, a plaintiff must prove two elements. First, the plaintiff must demonstrate that the evidence is both "new" and "material." Evangelista v. Secretary of Health and Human Servs., 826 F.2d 136, 139 (1st Cir. 1987). Second, he must show that there was a legally adequate reason for neglecting to present this evidence in the prior hearing. See id. The moving party bears the burden of proving that the aforementioned requirements have been met. See id.

"Under 42 U.S.C. § 405(g), remand is appropriate only where the court determines that further evidence is necessary to develop the facts of the case fully, that such evidence is not cumulative, and that consideration of it is essential to a fair hearing." Id. To qualify under the new and material evidence standard, the discovered data must be meaningful, that is, neither redundant nor irrelevant to the basis for the earlier decision. See id. at 139-140. Remand is appropriate only if, were the proposed new evidence considered, the Commissioner's decision "`might reasonably have been different.'" Id. at 140 (quoting Falu v. Secretary of Health and Human Servs., 703 F.2d 24, 27 (1st Cir.1983)).

A district court need not perform the initial evaluation of a plaintiff's challenge to a decision of the Commissioner. Instead, it may refer the matter to a United States Magistrate Judge for a Report and Recommendation. See 28 U.S.C. § 636(b)(1)(B)(1994). Upon referral in this case, Magistrate Judge Martin issued a recommendation with respect to one of the two grounds plaintiff argues entitle him to a...