McAlister v. Kijakazi ( 2023 )

22-353
McAlister v. Kijakazi
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 12th day of June, two thousand twenty-three.
PRESENT: Guido Calabresi,
Steven J. Menashi,
Eunice C. Lee,
Circuit Judges.
____________________________________________
DERRICK MCALISTER,
Plaintiff-Appellant,
v. No. 22-353
KILOLO KIJAKAZI, ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
____________________________________________
For Appellee: Derrick McAlister, pro se, Lackawanna, NY.
For Defendant-Appellant: SCOTT ELLIOTT, Special Assistant United
States Attorney (Ellen E. Sovern, Associate
General Counsel, United States Social
Security Administration, on the brief), for
Trini E. Ross, United States Attorney for the
Western District of New York, Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western
District of New York (Foschio, M.J.).
Upon due consideration, it is hereby ORDERED, ADJUDGED, and
DECREED that the judgment of the district court is AFFIRMED.
Appellant Derrick McAlister, proceeding pro se, appeals from a judgment
of the district court affirming a decision of the Commissioner of Social Security to
deny McAlister’s request for disability insurance benefits and supplemental
security income. On appeal, McAlister argues that the administrative law judge
(“ALJ”) incorrectly evaluated the evidence in concluding that McAlister had the
residual functional capacity (“RFC”) to perform light work with some additional
restrictions and that a person with this RFC could perform McAlister’s past work.
McAlister also presents new evidence about the source and extent of his
limitations. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
The Social Security Act provides that “[t]he findings of the Commissioner
of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “In reviewing a district court’s decision upholding
a decision of the Commissioner, we ‘review the administrative record de novo to
determine whether there is substantial evidence supporting the Commissioner’s
2
decision and whether the Commissioner applied the correct legal standard.’”
Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (quoting Machadio v. Apfel, 276 F.3d
103, 108 (2d Cir. 2002)). The Supreme Court has explained that “[s]ubstantial
evidence is more than a mere scintilla” and “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938). Under the substantial evidence standard,
“once an ALJ finds facts, we can reject those facts only if a reasonable factfinder
would have to conclude otherwise.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448 (2d
Cir. 2012) (internal quotation marks omitted).
I
Our review of the administrative record confirms that substantial evidence
supports the Commissioner’s decision. The Commissioner has established a five-
step procedure for determining whether an applicant is disabled. See 20 C.F.R.
§ 416.920(a)(4). McAlister’s arguments concern the fourth step, at which an ALJ
must determine whether the applicant has the RFC to perform his past relevant
work. See id. § 416.920(a)(4)(iv).
McAlister first argues that the ALJ failed adequately to consider McAlister’s
testimony regarding the severity of his back and leg pain, and he claims that the
ALJ overlooked or misinterpreted evidence regarding his activities of daily living
reflecting a more limited RFC. In determining whether the claimant is disabled,
the agency considers “all of [the claimant’s] statements about [his or her]
symptoms, such as pain,” but such “statements … will not alone establish”
disability. 20 C.F.R. § 404.1529(a). “In evaluating the intensity and persistence of
… pain, [the agency] consider[s] all of the available evidence, including … medical
history, the medical signs and laboratory findings, and statements about how [the
claimant’s] symptoms affect [him or her].” Id.Applying this framework, the ALJ properly considered McAlister’s
statements about the severity of his pain and reasonably concluded that those
statements were inconsistent with the remainder of the record. That record
3
included: treatment consisting of pain medication and a muscle relaxant with no
other intervention; an examination in which McAlister showed some restrictions
in squatting and spine flexion but no other abnormal results; x-ray images
showing “mild” defects; and the opinions of two physicians, based on that
evidence, that McAlister could sit or stand for six hours in an eight hour work day
(or more). 1
As the district court explained, the ALJ determined that the administrative
record reflected an RFC “limiting [McAlister] to light work with additional
postural limitations.” App’x 15. Given those limitations, the ALJ determined that
McAlister remained capable of performing his past work as a mortgage clerk,
mortgage loan processor, or policyholder information clerk.
Contrary to McAlister’s argument, the ALJ did not consider whether
McAlister could remember the name of his medications at his hearing in
evaluating his claim. Nor did the ALJ improperly overlook testimony from the
vocational expert that work would not be available if McAlister were frequently
off task. While the vocational expert gave that testimony, the record does not
compel the conclusion that McAlister would be off task to the extent that he could
not perform his past work.
II
Because McAlister has presented new evidence on appeal, we also consider
whether we should remand pursuant to our authority to “at any time order
1 McAlister does not challenge the ALJ’s reliance on those opinions in this appeal. Nor
does he argue that the ALJ should have obtained additional opinions. Accordingly, we
do not address those issues. See Moates v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998)
(explaining that we generally decline to consider issues not raised in a pro se appellant’s
brief). Because McAlister filed his applications after March 2017, the ALJ’s decision was
not constrained by the “treating physician rule,” under which the medical opinion of a
claimant’s treating physician received controlling weight in some circumstances. See
Colgan v. Kijakazi, 22 F.4th 353, 360 n.2 (2d Cir. 2022); 20 C.F.R. § 404.1527.
4
additional evidence to be taken before the Commissioner of Social Security …
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). New evidence is material if it is relevant to the
claimant’s condition during the period for which benefits were denied—here,
from March 1, 2015, through April 29, 2019—and if it is probative and could
reasonably have influenced the Commissioner to decide the application
differently. Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004); Tirado v. Bowen, 842
F.2d 595, 597 (2d Cir. 1988).
None of the new evidence presented on appeal meets this standard.
McAlister alludes to having dyslexia, but he provides no information about
resulting restrictions. From the present record, dyslexia appears to be a lifelong
condition that has not interfered with McAlister’s ability to work. He also fails to
explain why this issue was not raised earlier. See Pollard, 377 F.3d at 193.
As to the conditions that he did raise before the agency, McAlister asserts
for the first time that his pain originated from an assault experienced as a teenager
rather than—as he previously asserted—a work injury in the 1990s. But he offers
no reason to believe that this information would change the Commissioner’s
opinion about the extent to which the pain restricted McAlister’s activities
between 2015 and 2019. McAlister also asserts that he has received citations for
failing to maintain his roof and lawn. Again, he does not explain why he failed to
reveal this information earlier. In any event, inability to do roof and lawn work
would be consistent with the Commissioner’s RFC finding. See 20 C.F.R.
§ 404.1567(b) (defining “light work”).
In addition, McAlister has presented images from a CT scan of his spine
conducted in December 2020. These images postdate, by approximately twenty
months, the period for which the agency denied benefits. While subsequent
medical records may be material if probative of the applicant’s claimed
impairment during the relevant period, see Pollard, 377 F.3d at 193-94, McAlister
5
provides no reason to believe that this is the case here. Similarly, McAlister’s
assertion that he has been prescribed additional medications is not grounds for
remand because he has not explained when the drugs were prescribed, why the
drugs were not included in the list he prepared for the ALJ or mentioned in his
treating physician’s notes, or—if the drugs were prescribed later—why the
prescriptions are probative of his condition during the relevant period.
Accordingly, no grounds exist to remand for consideration of new evidence.
* * *
We have considered McAlister’s remaining arguments, which we conclude
are without merit. For the foregoing reasons, we affirm the judgment of the district
court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6