DE LEON ROMANO v. COMMISSIONER OF SOCIAL SECURITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

STEPHANIE DE LEON ROMANO, )

)

Plaintiff, )

)

v. ) Civil Action No. 19-633

)

COMMISSIONER OF SOCIAL SECURITY, )

)

Defendant. )

O R D E R

AND NOW, this 17th day of August, 2020, upon consideration of the parties’

cross-motions for summary judgment, the Court, upon review of the Commissioner of Social

Security’s final decision denying Plaintiff’s claim for disability insurance benefits under

Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., finds that the Commissioner’s

findings are supported by substantial evidence and, accordingly, affirms. See 42 U.S.C. §

405(g); Jesurum v. Secretary of U.S. Department of Health & Human Services, 48 F.3d 114, 117

(3d Cir. 1995); Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied sub nom.,

507 U.S. 924 (1993); Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). See also Berry v.

Sullivan, 738 F. Supp. 942, 944 (W.D. Pa. 1990) (if supported by substantial evidence, the

Commissioner’s decision must be affirmed, as a federal court may neither reweigh the evidence,

nor reverse, merely because it would have decided the claim differently) (citing Cotter v. Harris,

642 F.2d 700, 705 (3d Cir. 1981)).1

1 Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in formulating her

residual functional capacity (“RFC”) because he failed to consider a medical opinion by one of

her treating physicians, Wendy Helkowski, M.D., submitted after the administrative hearing but

before the ALJ issued his decision on December 17, 2018. The Court disagrees and finds that

the ALJ did not err in not addressing the medical opinion at issue and further finds that

substantial evidence supports the ALJ’s decision that Plaintiff is not disabled.

The administrative hearing in this case was held on October 30, 2018. (R. 29-65). Prior

to this hearing, on August 3, 2018, ALJ Michael S. Kaczmarek sent Plaintiff notice that all

written evidence was to be submitted no later than 5 business days before the date of the hearing

and that he may decline to consider evidence that was not timely provided unless it fit within one

of the limited exceptions. (R. 139). Although Plaintiff did produce a significant amount of

evidence prior to the hearing, she did not submit the medical opinion from Dr. Helkowski at

issue here. Indeed, this would not have been possible, since the opinion was not generated until

December 5, 2018, and purports to rely primarily on a progress note dated November 19, 2018.

The record contains no other mention of Dr. Helkowski, and Plaintiff did not identify her as a

relevant treating source at any point before the ALJ.

According to Plaintiff, on December 5, 2018, Dr. Helkowski sent the opinion regarding

Plaintiff’s functional capacity, along with several unrelated treatment notes from years earlier, to

the ALJ via facsimile. The materials Plaintiff has submitted include a fax cover sheet indicating

that the information was sent by Dr. Helkowski to ALJ Kaczmarek at what appears to be a

correct fax number. There is no indication that the ALJ was, in fact, aware of this evidence, and

it was not included in the administrative record. Plaintiff did submit the opinion, as well as other

evidence, to the Appeals Council in seeking review of the ALJ’s decision, but at no point

indicated that her position was that the material was received by ALJ Kaczmarek prior to his

December 17, 2018 decision. (R. 2, 161-62, 242). The Appeals Council treated the opinion and

other material as new evidence and declined to remand the case to the ALJ based on it, stating

that there was not a reasonable probability that the material would change the outcome of the

ALJ’s decision.

Plaintiff now alleges that since the ALJ had received Dr. Helkowski’s opinion as to her

functional limitations prior to issuing his decision, he was required to consider and discuss it in

formulating her RFC and in otherwise determining whether she was disabled. She asserts that

this is especially true given that Dr. Helkowski is a treating physician whose opinion is entitled

to special consideration pursuant to long standing Third Circuit case law. Defendant maintains

that there is no indication that the materials were ever, in fact, received by the ALJ and that, even

if they were, he was not required to consider them because they were not properly and timely

submitted. The Court agrees with Defendant.

The Court first notes that evidence that was not before the ALJ cannot be considered by a

district court in its determination of whether or not the ALJ’s decision was supported by

substantial evidence. See Matthews v. Apfel, 239 F.3d 589, 594 (3d Cir. 2001); Chandler v.

Comm’r of Soc. Sec., 667 F.3d 356, 360 (3d Cir. 2011). Accordingly, the Court cannot rely on

any records that were not part of the administrative record upon which the ALJ based his

decision in making its determination here. Whether the ALJ did or did not receive the opinion at

issue in a timely manner and whether or not he should have included it in the record before him,

it is clear that he did not. The issue, then, is whether there is a basis for remanding this case to

account for this evidence. While the Appeals Council treated the evidence as “new evidence”

pursuant to sentence six of 42 U.S.C. § 405(g), Plaintiff asserts that the evidence is not “new”

and therefore not subject to the requirements for the remand of a case under sentence six.

Instead, she claims that the evidence was before the ALJ and that he improperly disregarded it.

However, as noted above, Plaintiff had been informed that written evidence was to be

submitted at least 5 days before her October 30, 2018 hearing. This is consistent with the

relevant regulations, which provide:

Each party must make every effort to ensure that the [ALJ]

receives all of the evidence and must inform us about or submit

any written evidence . . . no later than 5 business days before the

date of the scheduled hearing. If you do not comply with this

requirement, the [ALJ] may decline to consider or obtain the

evidence, unless the circumstances described in paragraph (b) of

this section apply.

20 C.F.R. § 404.935(a). Subsection (b) provides that the ALJ will accept later-submitted

relevant evidence if received before a decision has been issued and if it was not submitted in

accordance with subsection (a) because: (1) The Social Security Administration (“SSA”)’s

actions misled the claimant; (2) the claimant had physical, mental, educational, or linguistic

limitations that prevented him or her from informing the SSA about or submitting the evidence

earlier; or (3) some other unusual, unexpected, or unavoidable circumstance beyond the

claimant’s control prevented him or her from informing the SSA about or submitting the

evidence earlier. See 20 C.F.R. § 404.935(b). It is clear here that Dr. Helkowski’s opinion was

not submitted in accord with subsection (a), and the Court finds that none of the exceptions set

forth in subsection (b) apply. As such, the material was not properly before the ALJ and did not

need to be accepted and considered.

Plaintiff was unambiguously directed to submit her evidence at least 5 days prior to the

hearing and informed that evidence not submitted then might not be considered. Plaintiff does

not allege, nor does the record show, that she was limited in communicating with the ALJ or in

submitting evidence to him. Indeed, she submitted a substantial amount of evidence that was

included in the record. Plaintiff, in fact, does not really assert that any of the exceptions set forth

in Section 404.935(b) apply, but rather argues that the ALJ had a heightened duty to develop the

record given her pro se status. Plaintiff waived her right to representation for these proceedings

(R. 31-32, 160), and she does not challenge the validity of this waiver. Rather, she argues that in

the absence of counsel, the ALJ had a particularly strong obligation to assure that the record was

complete.

However, it is not reasonable to assign error to the ALJ based on the facts in this case.

As noted, Dr. Helkowski was not one of the health care providers identified by Plaintiff, so her

name would not have been known to the ALJ when she sent the December 5 facsimile. The fax

cover does not identify the material sent other than to state that it relates to Stephanie De Leon.

Nothing submitted in the fax establishes what treating relationship Dr. Helkowski had with

Plaintiff, and the opinion itself merely references a November 18 treatment note not included

with the opinion which may or may not have pertained to treatment by Dr. Helkowski. Indeed,

much of the information contained in the fax was from years earlier and clearly did not relate to

Dr. Helkowski or her opinion.

Under these circumstances, it would not be surprising that such late-submitted evidence

never made its way to ALJ Kaczmarek. Even if it did, it arrived with no explanation as to why it

was sent so long after the hearing and was sent by a doctor not otherwise mentioned in the

record. As noted, the opinion referenced only a progress note that was not included in the fax.

The Court finds that, even assuming the ALJ should have been aware of the existence of this

opinion, he certainly was under no obligation to consider it. The Court further notes that the ALJ

relied on a great deal of evidence in rendering his decision, and that substantial evidence

supports his findings.

As noted, Plaintiff does not argue that the case should be remanded on the basis of new

evidence under sentence six of 42 U.S.C. § 405(g). However, even if she did, the Court would

not find such a remand to be warranted. Section 405(g) provides, in relevant part:

[The court] may at any time order additional evidence to be taken

before the Commissioner of Social Security, but only upon a

showing that there is new evidence which is material and that there

is good cause for failure to incorporate such evidence into the

record in a prior proceeding.

To remand a case based on new evidence which was not before the ALJ, the Court must

determine that the following criteria have been met: First, the evidence must be new and not

merely cumulative of what is in the record. Second, the evidence must be material. This means

that it must be relevant and probative, and there must be a reasonable possibility that the new

evidence would have changed the outcome of the determination. Third, the plaintiff must

demonstrate good cause for not having incorporated the new evidence into the administrative

record. See Matthews, 239 F.3d at 594; Szubak v. Secretary of Health & Human Services, 745

F.2d 831, 833 (3d Cir. 1984). Plaintiff could not meet this burden even if she did seek a sentence

six remand.

Because Dr. Helkowski’s opinion was not included in the record before the ALJ, and,

indeed, did not exist until after the administrative hearing, it appears to be new and not merely

cumulative of what is in the record. However, the Court agrees with the Appeals Council that

there is no reasonable possibility that Dr. Helkowski’s opinion as to Plaintiff’s functional

limitations would have changed the outcome of the determination. As the Court discussed

above, the record fails to establish the nature of the treating relationship between Plaintiff and

Dr. Helkowski, and the only “supporting” information is a reference to treatment note that was

not provided. Given the volume of evidence that the ALJ did consider, it is unlikely that Dr.

Helkowski’s unsupported opinion that Plaintiff had somewhat greater functional limitations

would have made any difference.

Therefore, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary

Judgment (document No. 10) is DENIED and that Defendant’s Motion for Summary Judgment

(document No. 12) is GRANTED.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

In any event, Plaintiff cannot establish good cause for failing to properly submit the

evidence to the ALJ. No reason is provided for Plaintiff’s failure to obtain a medical opinion

from Dr. Helkowski, or from any other physician, prior to her hearing. Moreover, as discussed

above, the evidence was not submitted in a timely manner, and no explanation has been

proffered for its untimeliness.

Accordingly, for all of the reasons stated herein, the Court affirms the ALJ’s decision.