Lynch v. HHS CV-94-80-B 2/17/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Virginia Lynch

v. Civil No. 94-80-B

Donna E. Shalala, Secretary of Health and Human Services

O R D E R

Virginia Lynch challenges the Secretary of Health and Human

Services' denial of her application for Social Security

disability benefits. Lynch contends that her claim should be

remanded to the Secretary because new and material evidence has

come to light. In the alternative, she argues that the decision

of the Administrative Law Judge must be reversed because the

ALJ's finding that she was not disabled before the expiration of

her insured status is not supported by substantial evidence. For

the following reasons, I deny both of Lynch's motions.

BACKGROUND

Lynch suffers from a mental impairment described as bipolar

illness, depressed type; mixed traits (developmental disorders) ;

mild severity of psychosocial stressors; and poor global

assessment of functioning.1 Her medications included

1 Dr. Alexander Vuckovic, her physician from 1986 until late 1992, also diagnosed Lynch with schizoaffective disorder neuroleptics, lithium carbonate (mood stabilizer), and

Desipramine (antidepressant). She also experiences lengthy

periods of symptom remission, although such periods are

unpredictable.

Lynch applied for disability insurance benefits on October

27, 1992, alleging an inability to work since December 31, 1973,

due to her mental impairment. Her initial application and

reguests for reconsideration were denied. Thereafter, on

September 22, 1993, an Administrative Law Judge considered the

matter de novo. The ALJ issued a decision finding that Lynch was

not disabled at any time before the expiration of her period of

insured status on March 31, 1976, and was therefore not entitled

to disability benefits. Specifically, the ALJ, applying the five

step seguential evaluation outlined in

(1993), found that during the relevant period. Lynch suffered

from a severe impairment, although the impairment did not meet or

egual any of the listed impairments. Noting that Lynch lacked

any past relevant work experience, the ALJ concluded at Step 5 in

the seguential analysis that despite her severe impairment she

which is a subtype of schizophrenia. Dr. Phillip Sullivan, Lynch's current treating physician, concurred in the diagnosis of bipolar disorder, but also opined that Lynch suffered from mood congruent psychotic features.

2 was capable of performing other jobs that existed in the national

economy in significant numbers.

The Appeals Council denied Lynch's reguest for review on

January 27, 1994. The matter is now before me on her motion for

remand and, in the alternative, for reversal.

DISCUSSION

A. New Evidence as Grounds for Remand

Lynch contends that she is entitled to a remand under §

405(g) because there exists good cause why new and material

evidence, her medical records from Newport Naval Hospital, were

not presented at the original proceeding.2 The government argues

against remand, citing the plain language of the statute as well

as the nonmateriality of the medical records.3 Pursuant to 42

2 Lynch also submitted a letter from Dr. Vuckovic as a supplement to her memorandum in support of her motion. She has made no showing with respect to this evidence as to whether it is new or material, and has not articulated any reason as to why it was not presented to the ALJ for his consideration. Thus, I find that she has failed to meet her burden for a § 405(g) remand on the basis of this piece of additional evidence.

3 I reject the government's argument with respect to the plain language of the statute. The government fails to take account of the second clause of sentence six which states in pertinent part: "[the court] may at any time order additional evidence to be presented before the Secretary," upon a showing of

(g) (West Supp. 1994), a district court "may at any

time order additional evidence to be taken before the Secretary,

but only upon a showing that there is new evidence which is

material and that there is no good cause for the failure to

incorporate such evidence into the record in a prior

proceeding...." The statute, therefore, imposes three

reguirements before a district court may remand a case to the

Secretary to obtain additional evidence: (1) newness, (2)

materiality, and (3) good cause. Evangelista v. Secretary of

Health & Human Servs.,

(1st Cir. 1987) .

The moving party bears the burden of establishing that these

three reguirements have been met. Id.. Conseguently, "[t]the

party seeking the remand must present to the court the evidence

it hopes to submit in the administrative proceeding should remand

be granted or at least a general showing of the nature of the

evidence." Falu v. Secretary of Health and Human Servs., 7 03

newness, materiality, and good cause.

(g) (West Supp. 1994) (emphasis added). Thus, while the government is correct that the Secretary may reguest remand before answering to hear additional evidence, it ignores the fact that there is an alternative basis for remand when good cause is shown as to why new and material evidence was not presented. The government also makes an argument that the plaintiff has failed to meet the reguirements for reopening her application. While this may be true. Lynch is not asking the court to reopen her application. Therefore I decline to address this issue.

(1st Cir. 1983) (quoting King v. Califano,

(4th Cir. 1979)). Irrespective of whether the medical

records are sufficiently new4 or whether good cause5 is shown as

to why they were not produced at the original proceeding, Lynch's

motion to remand fails because the medical records are not

material.

Evidence is material in this context when it is necessary to

afford the claimant a fair hearing because the ALJ's decision

"might reasonably have been different" if the evidence had been

considered. Evangelista,

(quoting Falu, 703 F.2d

at 27). The medical records at issue show that Lynch was

admitted to Newport Naval Hospital October 4, 1970, and was

released two days later. The records indicate that she attempted

suicide by ingesting a large quantity of sleeping pills. In

addition, the records note that she had several "slash" marks on

her elbows and forearms. Lynch asserts that there is no question

4 Additional evidence is sufficiently "new" if it is not cumulative or merely a reinterpretation of information previously presented to the ALJ. Evangelista,

- 40; Heggartv v. Sullivan,

(1st Cir. 1991) .

5 Good cause is shown where the claimant provides a legally sufficient reason for not presenting the new evidence at the prior proceeding. Evangelista,

.

5 as to the materiality of this evidence and that it shows

"multiple, serious, suicide attempts prior to her date of last

insured."

The evidence before the ALJ established that Lynch was

hospitalized after an attempted suicide in 1974 and then not

again until 1986. Her treating physician at the time of the 1974

incident. Dr. Hans Standow, referred to the suicide attempt as

vague, with a superficial cut to the wrist. After treatment with

antidepressant medication and psychotherapy. Lynch improved

guickly and no longer complained of depression in August 1974.

Her husband also testified that from 1974 through 1982, they had

several children and Lynch was stable and did not seek treatment

during that time.

There were no medical records introduced indicating that

Lynch sought and/or received treatment between the 1974

hospitalization and her second hospitalization nearly ten years

after she lost her insured status. The new evidence offered by

Lynch does nothing to fill this gap as it relates to a period

prior to the 1974 hospitalization and her alleged onset date.

See Heggartv,

. The new evidence is too

attenuated and limited to support the conclusion that the ALJ's

decision might reasonably have been different had he known of the

6 1970 incident. Thus, I reject Lunch's claim that the new

evidence is material and warrants remand to the Secretary.

B. Review of the ALJ's Decision

Lynch also argues that the decision of the ALJ is not

supported by substantial evidence in the record as a whole and

therefore reversal of his decision is warranted. She contends

that the objective and subjective facts, coupled with the medical

evidence, do not support the ALJ's determination that she was not

disabled. In particular she states that the ALJ gave too much

weight to Dr. Standow's opinion because it misrepresented the

severity of the 1974 incident. Furthermore, the ALJ should have

given more credence to the opinion of Dr. Sullivan, her present

treating physician. I disagree.6

6 Lynch contends that both the objective and subjective evidence do not support the ALJ's decision. With respect to the objective evidence, she argues that I should consider the new evidence she has brought forth in reviewing the ALJ's decision. However, district courts review such appeals "on the administrative record, without taking new evidence." Evangelista,

; accord Torres v. Secretary of Health & Human Servs.,

, 1137 n.l (1st Cir. 1988). Thus, I will only consider the evidence presented to the ALJ in the original proceeding. She also contends that "[t]he subjective evidence is that she remained severely mentally ill but her symptoms were not necessarily acute until she has very dramatic psychotic episodes which reguired treatment." This is not inconsistent or contradictory with the ALJ's conclusion that she was capable of

7 Pursuant to

(g), the court is empowered to

"enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary...." In reviewing a Social Security decision, factual

findings of the Secretary "shall be conclusive if supported by

'substantial evidence.'" Ortiz v. Secretary of Health & Human

Servs.,

(1st Cir. 1991) (guoting

(g)). Thus, the court must "'uphold the Secretary's findings

... if a reasonable mind, reviewing the evidence in the record as

a whole, could accept it as adeguate to support [the Secretary's]

conclusion.'"

(guoting Rodriquez v. Secretary of Health &

Human Servs.,

(1st Cir. 1981)). The findings

of the Secretary are conclusive if supported by substantial

evidence and should be upheld even in those cases in which the

reviewing court, had it heard the same evidence de novo, might

have found otherwise. Lizotte v. Secretary of Health & Human

Servs.,

(1st Cir. 1981).

At Step Five in the seguential evaluation process, the

Secretary has the burden of showing that, despite the severity of

engaging in substantial gainful activity during the relevant period. Thus, while I acknowledge this evidence, I find that it supports, rather than refutes the ALJ's decision. the claimant's impairment and inability to return to past

relevant work, he or she retains the residual functional capacity

to perform other occupations that exist in significant numbers in

the national economy and region where the claimant lives.

(f); see also Heggartv,

. The

ALJ's determination at Step 5 that Lynch, in light of her

residual functional capacity to perform work at a medium exertion

level, was not disabled, is supported by substantial evidence in

the record.

There was limited medical evidence detailing Lynch's

treatment during the relevant period. Dr. Standow's opinion

after treating her for eight months with medication and

psychotherapy was that she recovered guickly and no longer

appeared depressed. The ALJ noted that the opinion of Dr.

Standow was consistent with the testimony of Lynch's husband who

stated that his wife's condition was relatively stable through

1982. In addition, reports in the record indicated that Lynch

maintained an active lifestyle including caring for her children,

maintaining her household, and teaching religious education. The

hypothetical posed to the vocational expert by the ALJ accounted

for a woman in her early twenties who was stabilized on

medication, with a residual functional capacity for at least medium work, and who could perform one to two step operations

with a limitation for low stress. The vocational expert

indicated that there were significant numbers of relevant jobs in

both the national and local economies in and around 1975. Thus,

I find that the ALJ's determination that Lynch was not disabled

at Step 5 in the sequential evaluation, is supported by

substantial record evidence.

Lynch also contends that the ALJ gave excessive weight to

Dr. Standow's opinion and should have given more weight to Dr.

Sullivan's opinion, regarding her capacity to engage in gainful

activity. The regulations, however, give the ALJ wide discretion

in weighing the evaluations of treating physicians. See

(d). It is firmly established that the ALJ is

not required to accept the conclusions of any particular

physician on the ultimate issue of disability. See Arrovo v.

Secretary of Health & Human Servs.,

(1st Cir.

1991) (per curiam).

The ALJ stated in pertinent part:

[T]he reports from Dr. Standow specifically indicate that the claimant was capable of handling gainful employment.... The undersigned is also aware of the opinions of Drs. Sullivan and Vuckovic. Although Dr. Sullivan opined that the claimant had disabling symptoms dating back to 1969, he specifically indicated that he initiated treatment with the claimant in January of 1993 and stressed that his opinion was being made without any

10 documentation from the claimant's prior care-givers or her past history. Dr. Sullivan's opinion concerning the claimant's symptomology during the period of December 31, 1973 through March 31, 1976 is clearly in contradiction with the claimant's treating source during that time. Dr. Standow. Accordingly, greater weight has been given to Dr. Standow's first hand observations than to the retroactive opinions of disability made by Dr. Sullivan.

The regulations clearly state that the more support a

medical opinion is shown to possess the more weight the ALJ may

give that opinion.

(d) (3) . Dr. Sullivan's

opinion concerning the claimant's ability to engage in gainful

employment during the relevant period is lacking in support and

therefore, under the regulations, the ALJ was clearly entitled to

give it less weight in his determination.

Moreover, it is the Secretary's responsibility to "determine

issues of credibility and to draw inferences from the record

evidence," and "the resolution of conflicts in the evidence is

for the Secretary, not the courts." Ortiz,

(citing Rodriquez,

)). Thus, Lynch's contention

that the ALJ erred in crediting Dr. Standow and not Dr. Sullivan

is without merit.

11 CONCLUSION

For the foregoing reasons, I deny plaintiff's motion to

reverse the ALJ's decision or in the alternative to remand

(document n o . 7).

SO ORDERED.

Paul Barbadoro United States District Judge

February 17, 1995

cc: Marc W. MacDonald, Esg. David L Broderick, AUSA

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