20

- 758

- cv Hairston

- Scott v. Commissioner of Social Security



## 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 (WI TH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 6 t h da y of A u g u s t , two thousand twenty

- one . 3 4 PRESENT: 5 REENA RAGGI , 6 DENNY CHIN , 7 MICHAEL H. PARK, 8 Circuit Judges

. 9 10

_______________________________________ 11 12 ROMARA HAIRSTON

- SCOTT , 13 14 Plaintiff

- Appellant, 15 16

v. 20

- 758 17 18 COMMISSIONER OF SOCIAL SECURITY , 19 20 Defendant

- Appellee

. 21

_______________________________________ 22 23 24 FOR PLAINTIFF

- APPELLANT: Romara Hairston

- Scott, Romulus, NY. 25 26 FOR DEFENDANT

- APPELLEE: Alexander Broche, Special Assistant United States 27 Attorney, for James P. Kennedy, Jr., United States 28 Attorney for the Western District of New York; Ellen 29 E. Sovern, Regional Chief Counsel

– Region II, 30 Office of the General Counsel, Social Security 31 Administration, New York, NY. 322 Appeal from a judgment of the United States District Court for the Western District of New 1

York (Wolford
, J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court entered on January 31, 2020 is AFFIRMED

. 4

Romara Hairston

- Scott, then represented by counsel, sought review of a final determination 5
by the Commissioner of Social Security (“Commissioner”) denying her application for social 6
security disability insurance benefits and supplemental security income

. The district court denied 7

Hairston

- Scott and granted the Commissioner judgment on the pleadings, reasoning that 8
substantial evidence supported the administrative law judge’s (“ AL J”) decision that Hairston

9
Scott’s mental impairments were not severe, remand for consideration of new evidence was not 10

re quired because the new evidence was not relevant, and the Appeals Council did not err in failing 11

to consider new evidence

. Hairston

- Scott

— now pro se

— appeals , arguing for the first time that 12
her residual functional capacity (“RFC”) is less than sedentary
, and that a determination by the 13
Social Security Administration in March 2019 (the “March 2019 Decision”) that found her to be 14

disabled since 2018 should be considered

. We assume the parties ’ familiarity with the underlying 15
facts, the procedural history of the case, and the issues on appeal. 16

As an initial matter, Hairston

- Scott does not challenge the district court’s determination 17
that the Appeals Council’s decision not to consider a 2018 report from clinical neuropsychologist 18
Dr. Tatyana Raby was proper. Nor does Hairston

- Scott challeng e the district court’s determination 19
that the ALJ’s finding at step two that her mental impairments were not severe was supported by 20

substantial evidence

. R eferences in her appeal brief to her depression and anxiety, along with a 213 variety of physical ailments, are in the context of summarizing her medical history only . Hairston

1

Scott has thus abandoned any challenge to those district court determination s

. See LoSacco v. City 2
of Middletow n , 71 F.3d 88, 92 (2d Cir. 1995) (holding that issues raised in district court but not 3
raised in pro se appellate brief were abandoned). 1 4

In addition, the district court had no occasion to rule on Hairston

- Scott’s argument that her 5

RFC was less than se dentary , which she raises for the first time on appeal. She was represented 6
by counsel in the district court and failed to challenge the ALJ’s RFC determination at all. We 7
generally do not consider claims raised for the first time on appeal

. This argume nt is waived. See 8

Greene v. United States , 13 F.3d 577, 586 (2d Cir. 1994). 9
The only other issue Hairston

- Scott raises in passing on appeal is that her 2019 favorable 10
disability determination should be considered, along with her “continuing medical condit ion
, ” in 11

support of a favorable disability decision in this case. S he does not argue

— as she did in district 12

1 Even if Hairston

- Scott had challenged the district court’s substantial evidence ruling, her argument would fail on the merits. The ALJ cited an evaluation by Dr. Christine Ransom, a consultative psychiatric examiner, of Hairston

- Scott’s concentration and memory skills ; a report by Dr. E. Kamin, a state agency psychologist, concluding that Hairston

- Scott would have had mild difficulties in maintaining concentration; and both doctors’ conclusions that Hairston

- Scott had mil d limitations in her ability to deal appropriately with stress and maintain activities of daily living. The ALJ concluded that Hairston

- Scott had no limitations in the first two functional areas required to be assessed when determining if a mental impair ment was severe ( i.e. , ability to understand, remember, or apply information ; and social functioning ) , and only mild limitations in the third and fourth areas ( i.e. , concentration, persistence, or pace; and adapt or manage oneself ). Because “the degree of limitation in each of the first three areas is rated mild or better, and no episodes of decompensation are identified,” the mental impairment is non

- severe. Kohler v. Astrue , 546 F.3d 260, 266 (2d Cir. 2008)

. Drs. Kamin and Ransom’s evaluations thus con stitute substantial evidence supporting the ALJ’s determination. See Talavera v. Astrue , 697 F.3d 145, 153

– 54 (2d Cir. 2012).4 court

— that remand is required for the ALJ to consider this evidence. In any event, this argument 1

is meritless. 2
A federal court will consider new evidence only to determine whether it provides a basis 3

for remand to the Commissioner. 42 U.S.C. § 405(g). To justify an order requiring the 4

Commissioner to consider additional evidence , (1) the proffered evidence must be “new and not 5
merely cumulative of what is already in the record
, ” (2) it must be “material,” and (3) the claimant 6
must show that “good cause ” existed for he r failure to present the evidence earlier. Tirado v. 7

Bowen , 842 F.2d 595 , 597 (2d Cir. 1988) (internal quotation marks and citations omitted). Material 8
evidence is “both relevant to the claimant’s condition during the time period for whic h benefits 9

were denied and probative, ” and the claimant must show “a reasonable possibility that the new 10

evidence would have influenced t he [ Commissioner ] to decide the claimant’s application 11
differently. ” Id

. at 597. 12

The March 2019 D ecision, which found Hairston

- Scott disabled as of September 14, 2018, 13
is not material to her disability claim here because it did not concern the relevant period for which 14
she sought disability benefits

— January 21, 2014 through June 30, 2017. ‘ “The mere existence of 15
[a] subsequent decision in a claimant’s favor, standing alone, cannot be evidence that can change 16
the outcome of his prior proceeding.” ’ Caron v. Colvin , 600 F. App’x 43, 44 (2d Cir. 2015) 17
(summary order) ( quoting Allen v. Comm’r of Soc. Sec. , 561 F.3d 646, 653 (6th Cir. 2009) 18
(alterations omitted) ) ; see also Polynice v. Colvin , 576 F. App’x 28, 31 (2d Cir. 2014) (summary 19
order) (“The finding that [plaintiff] was disabled more than two and a half years after the ALJ’s 20
unfavorable decision says little about whether plaintiff was disabled during the time period 21
relevant here, and any inference that can be drawn is too weak to displace the substantial evidence 225 supporting the ALJ’s determination.”) (internal quotation marks omitted). Here , the Mar ch 2019 1

Decision was based on medical records that were generated primarily after the ALJ’s 2017 2

decision. Thus, the finding that Hairston

- Scott was disabled as of September 2018, based on a 3
different set of facts and more than a year after the ALJ render ed a decision in this case, is not 4
“relevant to the claimant’s condition during the time period for which benefits were denied” and 5

could not have influenced the Commissioner ’s decision pertaining to an earlier time period

. See 6

Tirado , 842 F.2d at 597 ; se e also Cage v. Comm’r of Soc. Sec. , 692 F.3d 118, 127 (2d Cir. 2012) 7
(concluding that a later disability ruling did not bolster claim that an earlier ruling was not 8
supported by substantial evidence when the later ruling was based on evidence not in the record in 9
the original application and related in part to different impairments) . Therefore, to the extent that 10

Hairston

- Scott argues that the district court erred in not remanding her case because it did not 11

consider her 2019 disability determination, th at argument is meritless. 12

We have considered all of Hairston

- Scott’s remaining arguments and find them to be 13
without merit. Accordingly, we AFFIRM the judgment of the district court. 14

FOR THE COURT: 15 Catherine O ’ Hagan Wolfe, Clerk of Court 16 17