BOUCHER v. KIJAZAKI

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD J. BOUCHER, )

)

Plaintiff, )

)

v. ) Civil Action No. 20-1341

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social Security, )

)

Defendant. )

O R D E R

AND NOW, this 31st day of August, 2022, 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 (“DIB”) 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); Biestek v. Berryhill, 139 S. Ct. 1148, 1153-54 (2019); Jesurum v. Secretary of U.S. Dep’t

of Health & Human Servs, 48 F.3d 114, 117 (3d Cir. 1995) (citing 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 is proceeding pro se in this case, and while the Court believes that he has done a

credible, good-faith job of explaining his positions, the Court must, at the outset, explain what it

can and cannot review here. Several of Plaintiff’s arguments relate to a decision denying his

prior claim for Social Security DIB benefits dated April 17, 2017 (R. 139-48). As the

Commissioner points out, that is not the decision that the Court is reviewing here. Rather, it is

reviewing the decision of the Administrative Law Judge (“ALJ”) denying his claim for benefits

dated May 6, 2019 (R. 53-61).

42 U.S.C. § 405(g) permits a district court to review only the Commissioner’s “final

decision.” See also Califano v. Sanders, 430 U.S. 99, 108 (1977). “But the Act does not define

‘final decision,’ instead leaving it to the [Social Security Administration (“SSA”)] to give

meaning to that term through regulations.” Sims v. Apfel, 530 U.S. 103, 106 (2000) (citing §

405(a); Weinberger v. Salfi, 422 U.S. 749, 766 (1975)). As the Supreme Court explained in

Sims, pursuant to the SSA’s regulations, “if the Appeals Council grants review of a claim, then

the decision that the Council issues is the Commissioner’s final decision. If the Council denies

the request for review, the ALJ’s opinion becomes the final decision.” Id. at 106-07 (citing 20

C.F.R. §§ 404.900(a)(4)-(5), 404.955, 404.981, 422.210(a)). However, if a claimant fails to

request review from the Appeals Council, “there is no final decision and, as a result, no judicial

review in most cases.” Id. at 107 (citing § 404.900(b); Bowen v. City of New York, 476 U.S. 467,

482–483 (1986)). In other words, a claimant may not obtain judicial review when he fails to

exhaust his administrative remedies by seeking review by the Appeals Council. See id.

Plaintiff asserts that he intended to appeal the April 17, 2017 denial of his claim, but

inadvertently filed a new claim instead. Regardless of his intent, the record is clear that Plaintiff

did, in May of 2017, file a new claim instead of an appeal to the decision. (R. 226-32).

Although he would later proceed pro se, Plaintiff was represented at the time he filed his new

claim. (R. 167). Moreover, the previous ALJ explained to Plaintiff, via her April 17, 2017 letter,

that filing a new claim was not the same thing as filing an appeal. (R. 136-38). Because Plaintiff

did not exhaust his administrative remedies in regard to the April 17, 2017 decision, it is not a

“final decision” that this Court may review. See Crossley v. Kijakazi, No. 3:20-CV-02298, 2021

WL 6197783, at *9 (M.D. Pa. Dec. 31, 2021). Therefore, arguments as to that decision, such as

those pertaining to the medical opinion of Dr. Lieber and reference to an alleged prior drug

conviction, are moot.

Plaintiff did, though, exhaust his administrative remedies in regard to the May 6, 2019

decision by appealing the denial of benefits to the Appeals Council. Because the Appeals

Council declined to review the ALJ’s decision (R. 1-3), the ALJ’s decision is a “final decision”

that this Court has authority to review. However, the Court emphasizes that, since this is a claim

for DIB benefits under Title II of the Act, Plaintiff must establish that he became disabled before

his date last insured. See 42 U.S.C. § 423(a)(1)(A); Kelley v. Barnhart, 138 Fed. Appx. 505, 507

(3d Cir. 2005) (citing Kane v. Heckler, 776 F.2d 1130, 1131 n.1 (3d Cir.1985). There is no

dispute that Plaintiff’s date last insured was September 30, 2017. (R. 55). Accordingly, to

prevail on his claim, Plaintiff must prove that he was disabled as of that date.

Unfortunately for Plaintiff, a good deal of his position appears to be based on a request

for the Court to consider evidence that the ALJ did not have when she issued her decision.

However, 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 her decision in making its determination

here.

What the Court may do is consider whether the new evidence establishes the need for a

“sentence six remand.” See Matthews, 239 F.3d at 594. Sentence six of Section 405(g)

provides:

[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 cannot meet this burden.

The Court will address each piece of proposed new evidence separately. First, the

treatment notes from Clifford Vogan, M.D., P.C., dated January 11, 2018, are not new, as these

same treatment notes are already part of the record. (R. 406-08). They clearly fail to meet the

first requirement for a sentence six remand.

The October 17, 2017 cognitive testing results, on the other hand, are not part of the

record considered by the ALJ. However, it still does not appear that these records are “new,” as

they clearly existed at the time of the administrative hearing, and Plaintiff has offered no

explanation as to why they were not presented to the ALJ at that time. Regardless, the cognitive

testing results not material; they reflect nothing more than normal cognitive functioning, and

there is no reasonable possibility that this evidence would have changed the outcome of the

ALJ’s determination.

As for the medical opinions dated June 25, 2019, and July 19, 2019, which were offered

by Plaintiff’s treating psychiatrist, Hari K. Vemulapalli, M.D., even assuming these opinions

meet the first criterion for a sentence six remand by being “new,” they are not “material,” and

therefore fail to meet the second requirement, since they do not relate to the relevant time period.

“An implicit materiality requirement is that the new evidence relate to the time period for which

benefits were denied, and that it not concern evidence of a later-acquired disability or of the

subsequent deterioration of [a] previously non-disabling condition.” Szubak, 745 F.2d at 833;

see also Rainey v. Astrue, Civ. No. 11-125-E, 2012 WL 3779167, at *8 (W.D. Pa. Aug. 31,

2012). Therefore, evidence related to Plaintiff’s condition after the date he was last insured is

irrelevant. See Ortega v. Comm’r of Soc. Sec., 232 Fed. Appx. 194, 197 (3d Cir. 2007).

“Further, a medical condition which begins during a claimant’s insured period, but does not

become disabling until after its expiration, may not be the basis for qualification for disability

benefits under the Act.” Capoferri v. Harris, 501 F. Supp. 32, 36 (E.D. Pa. 1980), aff'd 649 F.2d

858 (3d Cir. 1981).

Dr. Vemulapalli’s opinions post-date Plaintiff’s date last insured by more than 20

months. Moreover, not only is there no indication that these opinions were intended to relate

back almost two years to Plaintiff’s insured period, Dr. Vemulapalli, in fact, did not begin

treating Plaintiff until months after the insured period ended. (R. 442-43). Accordingly, there is

no basis to relate these opinions to the relevant time period. The Court further notes that Dr.

Vemulapalli’s opinion regarding episodes of decompensation is completely unsupported by the

record and frankly draws into question his understanding of the SSA’s definitions and terms.

The same applies for the Functional Capacity Evaluation completed on July 16, 2019. As

with Dr. Vemulapalli’s opinions, this Evaluation was not even performed until many months

after Plaintiff’s date last insured. As such, it does not relate to the relevant time period and is

therefore not material.

There are several problems with Dr. Vogan’s medical opinion dated August 5, 2019.

First, although this specific document obviously did not exist at the time the ALJ rendered his

decision, Plaintiff provides no explanation as to why such an opinion was not obtained at that

time. Indeed, he had been treating with Dr. Vogan for some time at that point. The mere fact

that evidence did not exist at the time of the hearing is not good cause for failure to timely obtain

and file such evidence before the ALJ. See Stover v. Comm’r of Soc. Sec., No. CV 16-1265,

2017 WL 3190724, at *4 (W.D. Pa. July 27, 2017). Therefore, this opinion is not “new” for

purposes of sentence six of Section 405(g). Moreover, it is dated nearly two years after the end

of Plaintiff’s date last insured. While Dr. Vogan filled in a blank indicating that he “imposed

these restrictions” two years ago, there is no explanation as to what this means or how this

opinion is meant to relate back to the insured period. Therefore, it is also not “material.” In any

event, with no explanation offered for the opinion’s late submission, good cause has not been

established either.

Plaintiff does raise arguments regarding the May 6, 2019 ALJ decision based on the

evidence that is part of the record of this case, including claims regarding difficulty wiping after

bowel movements, problems with frequent urination, and back and neck pain causing limited

mobility. However, the ALJ acknowledged and considered these allegations. (R. 58-60). It is

important to remember that, while a claimant’s testimony regarding his subjective complaints is

certainly relevant, an ALJ is not under an obligation to simply accept what the claimant said

without question. See 20 C.F.R. § 404.1529(c)(4); Chandler, 667 F.3d at 363. Although the

ALJ found that Plaintiff’s conditions could reasonably be expected to cause the alleged

symptoms, she found that Plaintiff’s statements regarding the intensity, persistence, and limiting

effects of these symptoms were not entirely consistent with the evidence. She proceeded to

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

Judgment (Doc. No. 17) is DENIED and that Defendant’s Motion for Summary Judgment (Doc.

No. 21) is GRANTED as set forth herein.

s/Alan N. Bloch

United States District Judge

ecf: Counsel of record

cc: Ronald J. Boucher

211 Allegheny Avenue

Cheswick, PA 15024

discuss at significant length Plaintiff’s limited treatment history, the improvement of his

conditions with medication, objective medical evidence including clinical tests not consistent

with Plaintiff’s testimony, Plaintiff’s activities of daily living, as well as the opinions of the state

agency medical consultant and the consultative examiner. (R. 58-60). She ultimately found that

Plaintiff could return to his past relevant work as an order clerk as it is generally performed. (R.

60-61). It therefore does not matter whether Plaintiff could return to that position precisely as he

had performed it at J.C. Penney; it is sufficient that he could perform the job as ordinarily

required by employers. See S.S.R. 82-61, 1982 WL 31387, at **1-2 (S.S.A.); 20 C.F.R.

404.1560(b)(2).

The Court emphasizes that, 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. See Hartranft v. Apfel, 181 F.3d

358, 360 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)); Monsour Med. Ctr. v. Heckler, 806 F.2d

1185, 1190-91 (3d Cir. 1986); Berry, 738 F. Supp. at 944 (citing Cotter, 642 F.2d at 705). In

addition, “[t]he presence of evidence in the record that supports a contrary conclusion does not

undermine the [ALJ’s] decision so long as the record provides substantial support for that

decision.” Malloy v. Comm’r of Soc. Sec., 306 Fed. Appx. 761, 764 (3d Cir. 2009). Here, the

ALJ considered and discussed the objective medical evidence, Plaintiff’s testimony, and the

medical opinion evidence. All of this constitutes substantial evidence in support of the ALJ’s

findings.

Accordingly, for the reasons set forth herein, the Court finds that the ALJ employed the

proper legal standards and that substantial evidence supports her decision. The Court will

therefore affirm.