Opinion
No. 01 Civ. 4285 (GEL)
August 19, 2002
Charles E. Binder for Plaintiff.
Lorraine S. Novinski, Assistant United States Attorney, Southern District of New York (Mary Jo White, United States Attorney, on the brief), for Defendant.
OPINION AND ORDER
Linda D. Wiggins brings this action pursuant to 42 U.S.C. § 405 (g), challenging the final decision of the Commissioner of Social Security ("the Commissioner"), denying her application for Supplemental Security Income ("SSI") benefits under the Social Security Act ("Act"). Plaintiff and Defendant both move for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiffs motion will be denied, and defendant's granted.
BACKGROUND
I. Procedural History
Plaintiff applied for disability benefits on June 18, 1997, alleging an onset of disability on February 19, 1990. She seeks review only of the Commissioner's denial of her SSI benefits as of July 18, 1997, the date on which she filed her SSI application. (Tr. 56-58.) After her application was denied, she requested a hearing before an Administrative Law Judge ("ALJ"), and on May 15, 1998, plaintiff appeared, with legal representation. before ALJ Joseph K. Rowe. (Tr. 32-41, 363.) On September 9, 1998, the ALJ ruled that plaintiff had not been disabled at any time through that date. (Tr. 15-25.) The Appeals Council upheld the ALJ's decision on March 23, 2001, thus making the ALJ's decision the final decision of the Commissioner. (Tr. 7-8.) This action followed.
Initially, plaintiff also applied for disability insurance benefits dating back to February 1990. Finding that there was no medical evidence in the record dating back as far as December 1991, when Wiggins last met the disability insured status requirement, the ALJ denied this claim. (Tr. 16, 17-18.) "Tr." refers to pages of the administrative record filed by the commissioner as part of her answer. See 42 U.S.C. § 405 (g).
II. Plaintiffs Personal History and Testimony
Plaintiff was born on May 31, 1959. (Tr. 56.) She obtained her high school diploma, completed three years of college, and started working as a secretary in 1977. (Tr. 364-366.) Her last job was in 1989, when she worked as a secretary for a district manager at McDonnell Douglas Time Net. (Tr. 366.) Plaintiff is raising three children, one with Tourette's syndrome, with the help of her brother and stepdaughter. (Tr. 374-375.)
At the Social Security hearing, plaintiff testified that she suffered from hypertension, high cholesterol, heart murmurs, chronic bronchitis, tendinitis in her right wrist, lightheadedness, nosebleeds, frequent migraine headaches, swelling, and depression. (Tr. 369-384.) Plaintiff further testified that she could sit or stand for no more than 15-20 minutes, after which point her body would stiffen or she would lose her breath, and that walking and lifting made her lightheaded. (Tr. 376-378.) Her previous employment involved sitting, standing, walking, and lifting approximately 10-20 pounds. (Tr. 367.) Finally, plaintiff testified variously that she stopped work because she was sick (Tr. 367) and because she needed to take care of her mother, who died in 1990 (Tr. 379). She also testified that it is her depression "that's keeping me where I'm at other than just health." (Tr. 378.)
III. Medical Evidence
In support of her application, plaintiff submitted medical evidence consisting of treatment records, dating from March 1994 to April 1998, from three hospitals — Health Insurance Plan Northern Center ("HIP"), St. Luke's Roosevelt Hospital ("St. Luke's"), and Harlem Hospital Center ("Harlem Hospital"). Following her application, plaintiff was examined by several state consultative physicians, whose reports were considered by the ALJ. After the ALJ's denial of benefits, plaintiff submitted additional medical evidence for the Appeals Council's consideration.
A. Treatment Records
Plaintiff was diagnosed and treated for tendinitis in the right wrist and lower arm at HIP on May 19, 1994. (Tr. 267.) Plaintiff returned to HIP on August 17, 1994 for x-rays on her wrist, which revealed no abnormalities. (Tr. 270.) On November 15, 1994, HIP diagnosed plaintiff with an upper respiratory infection. (Tr. 268.)
The record reflects that on January 3, 1997, plaintiff was admitted to the Emergency Room of St. Luke's for an allergic reaction. (Tr. 135-137.) At this time plaintiff was also examined by a psychiatrist for her depression. (Tr. 140.) Plaintiff informed the psychiatrist that her depression stemmed from the deaths of her mother and brother, and from her marital problems. (Tr. 140-141.) The psychiatrist noted that plaintiff was psychiatrically stable and did not need further intervention. (Tr. 141.)
On January 27, 1997, plaintiff returned to St. Luke's for a follow-up visit with Dr. Aruwani. (Tr. 132, 149.) Plaintiff again expressed her depression and inability to sleep. (Tr. 133.) The doctor noted that plaintiff was depressed but not suicidal and prescribed Zoloft, in addition to prescribing Procardia for plaintiffs hypertension. (Tr. 132-133, 147.) On February 25, 1997, Dr. Aruwani increased the dosage of plaintiffs anti-depressant medication and noted that her hypertension was well controlled. (Tr. 130.)
Dr. Lapeyrolerie performed a complete physical of plaintiff at Harlem Hospital on March 24, 1997. (Tr. 199-201.) He noted that plaintiffs hypertension was moderately well controlled, found that her headaches were likely related to depression, and scheduled a followup appointment for her with the psychiatry department on April 28, 1997. (Tr. 201.) Wiggins returned for another visit on March 31. An unidentified doctor or staff person noted a variety of symptoms, including that she "continues to experience [symptoms] of depression," such as loss of appetite, trouble sleeping, and "depressed mood," and stated that plaintiff was "actively suicidal," but "prefers to speak to psychiatrist directly, won't say if she has a plan," and that she occasionally "hears voices' that make derogatory comments." (Tr. 204.) Dr. Lapeyrolerie then noted that he spoke to Wiggins and that she "denied suicidal ideation." He described her as depressed secondary to "several compounding social issues" and "complicated by vegetative symptoms." (Tr. 202, 198.) Dr. Lapeyrolerie noted the upcoming appointment with the psychiatry department, and recommended that she be seen "as soon as possible." (Tr. 198, 202) Plaintiff was apparently seen by a Dr. Cruikshank on April 2, 1997, but there are no records relating to this appointment, or indicating whether she attended a follow-up appointment scheduled for April 4 or 5. (Tr. 197, 196.)
Plaintiff attributes these notes to Dr. Lapeyrolerie. (P. Mem. 5-6.) The notes at Tr. 203-04 do not appear to be in his handwriting, however, and at the bottom of Tr. 204, Dr. Lapeyrolerie adds see my continuation note on next page, which appears to refer to the note of his follow-up interview at Tr. 202.
Plaintiff returned to the hospital on a number of occasions in April and May, 1997, for medical problems such as an allergic reaction (Tr. 191) and hypertension (Tr. 186, 207). On these occasions, medical personnel reported that Wiggins became tearful when describing her situation and felt depressed (Tr. 186), and they referred her to the mental hygiene department for evaluation. (Tr. 189, 207.) The record does not reflect whether this evaluation took place.
Plaintiff met with Dr. Lapeyrolerie on May 28, 1997, to monitor her hypertension. (Tr. 186.) Dr. Lapeyrolerie noted that her hypertension was well controlled, but that her cholesterol was high. He also observed that plaintiff continued to be depressed and "urged" her to "f[ollow] u[p] w[ith] psychiatry." (Tr. 187-88.) There is no evidence that plaintiff complied with that recommendation. Dr. Lapeyrolerie also referred plaintiff for a CT scan of her head, which was performed on September 9, 1997, and found to be normal. (Tr. 183.) Sometime between October 1997 and July 1998, plaintiff returned to Harlem Hospital to obtain medication. During that visit plaintiff complained of headaches, shortness of breath, chest pain, and hypertension. (Tr. 277.)
B. SSA Consultative Examinations and Consultative Review
After filing for SSI benefits Wiggins was examined by Dr. Howard Finger, a state-appointed consultative physician, on July 15, 1997. (Tr. 152-154.) Plaintiff reported a history of high blood pressure that was hard to control, reported that she was currently taking Norvasc and Mellaril, and complained of her persistent migraine headaches. (Tr. 152-153.) Dr. Finger noted that plaintiff had a positive family history of migraines and hypertension. (Tr. 152.) He observed that plaintiffs blood pressure was poorly controlled, and that she had a history of bronchitis, anaphylactic reaction to MSG, depression, and tendinitis of the right wrist. (Tr. 152-154.) Observing that plaintiff had chronic depression that "interferes with patient's ability to function," Dr. Finger referred plaintiff to a psychiatrist for further evaluation that day. (Tr. 154.) Assessing her physical complaints, Dr. Finger found plaintiff mildly to moderately limited in her ability to stand, walk, lift, and carry, and noted that plaintiff had no gross difficulty sitting. Id
That same day, Wiggins was also seen by a state-appointed consultative psychiatrist, Dr. Richard King. (Tr. 150-151.) Plaintiff reported that she had been hearing voices telling her to kill herself since January 1997. (Tr. 150.) She further reported her depression, anxiety, and sleeplessness, and told Dr. King that she was taking Mellaril as her current medication, since Zoloft was not helpful. The doctor noted that plaintiffs "mood is slightly depressed and slightly tearful" but that no hallucinations or delusions were observed during the interview. (Tr. 150.) Dr. King also determined that plaintiff was not a suicide risk and that plaintiff could satisfactorily understand, remember, carry out instructions, and respond appropriately to a work environment. (Tr. 150-151.)
Following Wiggins' application to the Appeals Council for reconsideration of the ALJ's decision, another state-appointed consultative physician reviewed her medical record on August 11, 1997. The reviewing physician noted plaintiffs hypertension and bronchitis and then found plaintiff was able to push and pull, occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk about six hours in an eight-hour day, and sit about six hours in an eight-hour day. (Tr. 174-180.) The record also contains a "Mental Residual Functional Capacity Assessment;" apparently dated December 10, 1997, by a state-appointed physician, Dr. Juan Echevarria. Dr. Echevarria noted that plaintiff had an affective disorder of depression, which was characterized by disturbances in sleep and appetite, and psychomotor agitation or retardation. (Tr. 213, 218.) He indicated that plaintiff was "moderately limited" in her ability to understand, remember and carry out short and simple instructions, to "interact appropriately with the general public," and to "accept instructions and respond appropriately to criticism from superiors." (Tr. 209-10.) He found plaintiff "not significantly limited" in 16 other categories of mental functioning related to work assignments, and did not find her "markedly limited" in any category. Id.
C. Additional Evidence Presented to the Appeals Council
After the ALJ's decision, plaintiff presented to the Appeals Council a written assessment of plaintiffs mental residual functional capacity by Dr. Hanne Favelukes of the Mental Health Service Department of HIP, dated July 19, 1999. (Tr. 319-321.) After four meetings with plaintiff, Dr. Favelukes found that plaintiff suffered from phobic anxiety and severe personal stress. She noted that as a result of this disorder, plaintiff had difficulty attending appointments and was markedly limited in a number of functions. (Tr. 319.) Plaintiff also submitted a note written by Dr. Marvin Witt, dated March 17, 2000, stating that she suffered from severe depression and was unable to work "at this time." (Tr. 358-359.)
DISCUSSION
To determine whether the Commissioner made an appropriate finding that plaintiff was not disabled, the Court considers first, whether, on the record of the administrative proceedings, the Commissioner's determination that Wiggins was not disabled under the Act was procedurally and substantively valid, and second, whether the additional evidence presented by Wiggins warrants remand for further consideration by the Commissioner.
I. The Applicable Law
A. Determining Disability
In order for a claimant to be deemed "disabled" under the Act, she must demonstrate her "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A). Moreover, the impairment must be:
of such severity that [she] is not only unable to do h[er] previous work but cannot, considering h[er] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for h[er], or whether [she] would be hired if [she] applied for work.42 U.S.C. § 423 (d)(2)(A).
As promulgated in 20 C.F.R. § 416.920, the Commissioner is required to apply a five-step procedure in evaluating disability claims. This procedure was recently articulated by the Second Circuit as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If [she] is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits h[er] physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider h[er] disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, [she] has the residual functional capacity to perform h[er] past work. Finally, if the claimant is unable to perform h[er] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curium)); see also Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000).
Although reference to Appendix 1 appears in 20 C.F.R. § 416.920, Part 416 does not actually contains an Appendix 1. However, 20 C.F.R. Part 404, Subpart P, Appendix 1 is incorporated by reference into Part 416 in 20 C.F.R. § 416.925.
The disability claimant bears the burden of proving the first four steps laid out above. Once claimant's burden has been satisfied, the burden shifts to the Commissioner to establish the fifth step, that work exists in the national economy that the claimant can perform. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) ("If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working.").
B. Standard of Review
Under the Act, the findings of the Commissioner as to any fact are conclusive if supported by "substantial evidence." 42 U.S.C. § 405 (g). The statutory standard of substantial evidence in the Social Security benefits context 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 (1971) (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
Despite this apparently deferential standard of review, administrative decisions regarding claimants' eligibility for disability benefits have proven surprisingly vulnerable to judicial reversal. This vulnerability results primarily from the creation by the Commissioner, and the enforcement by the courts, of a variety of procedural obligations to which ALJ's must scrupulously adhere. Failure to do so is treated as "legal error" permitting reversal of the ALJ's decision. Thus, a district court may remand, modify, or reverse an ALJ's decision if the ALJ has misapplied the appropriate legal standard, or if his finding is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) ("We set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence." For example, the Commissioner has adopted regulations that give great, and under some circumstances controlling, weight to the opinion of a claimants treating physician, and set forth a particular methodology that must be followed in deciding whether to accept or reject such an opinion. 20 C.F.R. § 416.927 (d)(2). Such regulations will be enforced by courts. See Rosa, 168 F.3d at 78-79; Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).
Further, an ALJ may not rely, as factfinders in adversarial proceedings customarily do, on the absence of probative evidence supporting the opinions of a claimant's expert, without making an affirmative effort to fill any gaps in the record before him. See Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) ("[E]ven if the clinical findings were inadequate, it was the ALJ's duty to seek additional information from [the treating physician] sua sponte.").
In light of rules such as these see Santiago v. Massanari, 00-CIV-3847, 2001 U.S. Dist. LEXIS 9881, at *24-28 (S.D.N.Y. July 16, 2001) (discussing additional procedural rules), a district court reviewing a benefits denial may not simply accept the administrative determination because a cursory review of the record reveals plausible testimony or documentary evidence or expert opinion that supports the administrative determination. Rather, the record must be carefully evaluated to determine whether all the relevant regulations were fully complied with.
II. Application to this Case
A. The Commissioner's Decision on Plaintiffs Claim
Applying the five step procedure as set forth in 20 C.F.R. § 416.920, the ALJ first determined that plaintiff was currently unemployed. The ALJ next found that although plaintiff had a severe impairment in her ability to lift, her condition did not constitute a per se disability under 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ denied plaintiffs claim at step four, finding that, despite plaintiffs physical and mental limitations, she could still perform her past secretarial work. (Tr. 18.)
Plaintiff does not challenge the ALJ's "third step" conclusion that her physical and psychological symptoms did not meet or exceed the level of severity associated with a listed impairment. (Tr. 18.)
B. Plaintiffs Physical Impairments
At the hearing before the ALJ, plaintiff relied on a variety of physical problems in addition to her psychological diagnosis of depression. The record shows that plaintiff frequently visited with physicians for various ailments. However, none of these visits revealed a serious condition that could not either be controlled or treated with medication. In particular, physicians that examined plaintiff generally found that her blood pressure was well controlled. (Tr. 130, 147, 187.) Plaintiffs swelling was merely the result of an allergic reaction to food. (Tr. 135, 138, 140.) Although plaintiff suffers from tendinitis, x-rays revealed that her wrist was otherwise normal. (Tr. 155, 270.) Further, both the medical records and plaintiffs testimony show that her tendinitis was not debilitating since she was able to retain the use of her hands for fine or gross manipulation. (Tr. 153, 376.) Plaintiffs shortness of breath and chronic bronchitis were diagnosed as only a "mild" condition (Tr. 153), and there is neither any evidence in the record of a diagnosed heart murmur nor any treatment for the alleged nosebleeds or lightheadedness. Moreover, although plaintiff complained of persistent headaches, the record shows that plaintiff received medication for that condition and that the CT scan of her head revealed no abnormalities. (Tr. 183.) Even with these various impairments, Dr. Finger found that plaintiff was only mildly to moderately limited in her ability to carry out work related activities such as sitting, walking, lifting, carrying. (Tr. 154.) Therefore, plaintiff's physical impairments do not provide compelling grounds on which to challenge the Commissioner's denial of benefits.
C. Plaintiffs Depression
Largely abandoning the arguments for physical disability that constituted a primary focus of the ALJ's opinion, plaintiff relies in this Court primarily on arguments relating to her psychological condition. With respect to plaintiffs depression, the ALJ relied heavily on the July 1997 assessment by Dr. King, who found, as the ALJ determined, that "the claimant's memory and ability to pay attention are intact," and that her speech is "relevant and coherent, her insight and judgment intact and she is alert and well oriented." (Tr. 20; cf. Tr. 150-51.) The ALJ also appropriately, and correctly, noted that the record contains no "opinions from any treating physicians indicating that claimant is disabled or has any work-related limitations." (Tr. 23.) These conclusions are well-supported by the record. In none of the medical records or treatment notes relating to plaintiffs depression does any of the physicians or staff members who saw plaintiff address the seriousness of her symptoms or the relationship between those symptoms and either her ability to work generally or any specific mental or emotional capacity or function required in the workplace. The ALJ also took note of the evidence showing that plaintiffs physical and mental problems did not significantly interfere with her daily activities. (Tr. 23.)
The ALJ did make one apparent error, on which plaintiff focuses. In discussing the evidence of psychological disability in the plaintiffs medical records, the ALJ referenced only plaintiffs contact with a psychiatrist at St. Luke's in January 1997. (Tr. 21, 140-143.) As noted above, however, the record shows that plaintiff apparently obtained or was referred for psychiatric care more than once, and that the medical staff at Harlem Hospital consistently noted her depressive symptoms and continued her psychotropic medication. As plaintiff argues, while "the ALJ is not required to "reconcile explicitly every conflicting shred of medical testimony. he cannot "pick and choose' evidence in the record that supports his conclusions." Morgan v. Chater, 913 F. Supp. 184, 188 (W.D.N.Y. 1996) (citing Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir. 1983)).
During the hearing, for example, plaintiff testified that she had met with Dr. Schwartz and Dr. Cruickshank for psychiatric care. (Tr. 382.) A note written by Dr. Cruickshank, which stated that plaintiff was last treated for psychiatric care on April 2, 1997, supports her testimony. (Tr. 197.) This note also referred to a future appointment set for April 4, 1997. In yet another note, a nurse practitioner referred plaintiff to Mental Hygiene for evaluation of her depression. (Tr. 189.) The Harlem Hospital medical records indicate that plaintiff met with a psychiatrist on May 28, 1997. (Tr. 186.) Those records also indicate that plaintiff was scheduled to meet with a psychiatrist on April 7, 1997 (Tr. 202) and April 28, 1997 (Tr. 201). It is not clear, however, whether plaintiff kept any or all of these appointments. Plaintiff who was represented by counsel, supplied voluminous medical records, and was given every opportunity by the ALJ to supplement the record with additional records or reports.
None of these records, however, provide any basis for questioning the correctness of the ALJ's conclusion. While the Harlem Hospital records corroborate the diagnosis of depression, acknowledged by the ALJ on the basis of Dr. Aruwani's January 1997 evaluation, the picture they present of plaintiffs condition is entirely consistent with the ALJ's conclusion that Wiggins "has not generally received the type of medical treatment one would expect for a totally disabled individual." (Tr. 21.) Rather, the records reveal a pattern in which plaintiff periodically visited the hospital, usually in connection with a minor physical complaint; the doctors noting her history of depression and general sadness, referred her for psychiatric evaluation or treatment; and plaintiff wound up receiving treatment that was, as the ALJ found, "essentially routine and/or conservative in nature," such as moderate doses of anti-depressant medication. Id. Thus, the ALJ's failure to discuss these records in detail does not justify overturning the Commissioner's conclusion.
D. Additional Evidence Proffered by Plaintiff
After the ALJ's decision, the plaintiff submitted new evidence to the Appeals Council for their review. In rendering its decision, the Appeals Council found the evidence immaterial to plaintiffs claim of disability for the period before September 3, 1998, because it was dated after the ALJ's decision. That finding was correct.
As provided in 42 U.S.C. § 405 (g), judicial review of the Commissioner's disability determination is based on the "pleadings and transcript of the record." However, a district court may remand a case to the Commissioner for consideration of new evidence, "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) (2001). This test is satisfied only if plaintiff shows (1) that the evidence is new and not merely cumulative, (2) that the evidence is material, meaning both that it is relevant to plaintiffs condition during the time period for which benefits were denied, and that it could have affected the Commissioner's decision had it been presented earlier, and (3) that there is good cause for not having presented the evidence earlier. Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988).
The proffered evidence includes a report of plaintiffs mental residual functional capacity prepared by a psychiatrist, Dr. Favelukes (Tr. 320-321), and a brief note by Dr. Witt, an internist, stating that plaintiff suffers from "severe depression" and "is unable to work at this time." (Tr. 359.) Both items constitute new information that was unavailable at the time of the hearing. Both, moreover, in contrast to the previous medical reports submitted by plaintiff, directly address the severity of plaintiffs symptoms and their relationship to capacity to work. Dr. Favelukes' report directly assesses plaintiffs mental functional capacity, and finds her abilities considerably more limited than Dr. Echevarria did. While Dr. Witt's note is less persuasive, as the diagnosis is outside his specialty, the note is more casual and less detailed than Dr. Favelukes' report, and Dr. Witt (unlike Dr. Favelukes) fails to indicate the basis of his opinion or the extent of his contact with the patient, it is the only evidence in the record actually expressing a doctor's opinion that plaintiff is disabled.
In order to satisfy the materiality requirement, however, additional evidence must also relate back to the time period for which benefits were denied, that is, before the ALJ's decision. Dr. Favelukes, who first saw plaintiff on February 11, 1999, assessed plaintiffs condition as of July 19, 1999, more than ten months after the ALJ's decision. Dr. Favelukes did not, expressly or implicitly, state any opinion about plaintiffs condition during the relevant period, that is, the period between June 18, 1997, and September 9, 1998. (Tr. 319-21.) Dr. Witt's note, dated March 17, 2000, also fails to meet this requirement, as it was written long after the ALJ's decision and expressly states that plaintiff "is unable to work at this time." (Tr. 359; emphasis added.)
SSI claim remains in effect only through the decision of the ALJ. 20 C.F.R. § 416.330. See also Grubb v. Chater, 992 F. Supp. 634, 637 (2d Cir. 1998) (additional evidence must relate back to period prior to ALJ's decision).
Under some circumstances, it could be inferred that a later examination reflects a condition that has been present for a period of time extending back before the ALJ's decision was rendered. See Tracy v. Apfel, 97-CIV-4357, 1998 WL 765137, at *6 (E.D.N.Y. April 22, 1998) ("While new evidence does not require remand where it proves only a later-acquired disability or subsequent deterioration of the previously non-disabling condition, later developments which shed light on the seriousness of the claimant's condition at the time of the ALJ's decision are relevant"). But on this record, the Appeals Council cannot be faulted for concluding that these later evaluations, which expressly address plaintiff's condition well after the relevant time period, were not material.
Even if these reports were material, plaintiff cannot satisfy the requirement of good cause. Good cause for not presenting evidence in a timely way exists when "the evidence surfaces after the [Commissioner's] final decision and the claimant could not have obtained the evidence during the pendency of that proceeding." Lisa v. Secretary of Dept. of Health and Human Svcs. of U.S., 940 F.2d 40, 44 (2d Cir. 1991); see also Schaal v. Apfel, 134 F.3d 496, 506 (2d Cir. 1998). But plaintiff, who was represented by counsel during the proceedings before the ALJ, has provided no reason for her delay in obtaining an evaluation of her mental residual capacity by a physician of her own choosing.
E. Past Relevant Work Experience
Finally, plaintiff appears to contend that the ALJ improperly designated plaintiffs past work experience as substantial gainful activity. (Tr. 16-17.) The record, however, supports the ALJ's designation of plaintiffs past work experience as secretarial or clerical in nature. (Tr. 24, 366.) The Regulations define relevant work experience to mean skills and abilities that the claimant developed within the last 15 years and which constituted substantial gainful activity. 20 C.F.R. § 416.965 (a). Substantial gainful activity is defined as work involving "significant and productive physical or mental duties; and [i]s done . . . for pay or profit." 20 C.F.R. § 416.910.
The record shows that plaintiff had been employed by various companies in both a secretarial and clerical capacity from 1979 through 1989. (Tr. 104.) This 10-year period is ample time to develop the skills of this occupation, which clearly require significant and productive mental duties. Further, the record shows that plaintiff held paid positions throughout her employment. (Tr. 104.) The ALJ, accordingly, did not err in finding that plaintiff's past work was substantial gainful activity.
Melville v. Apfel, 198 F.3d 45, 53 (2d Cir. 1999), on which plaintiff relies, is easily distinguishable. In that case, the ALJ mistakenly identified the claimant's prior employment. The Second Circuit held that because the ALJ was under this mistaken impression, the ALJ failed to make a proper inquiry into the details of claimant's work experience to make an appropriate determination of past relevant work. Id. at 54. The case is thus inapposite here, where the past relevant work was correctly identified and the record accurately developed as to its nature.
CONCLUSION
For the reasons stated above, the plaintiffs motion for judgment on the pleadings is denied, and the defendant's motion for judgment on pleadings is granted.
SO ORDERED