10-2119-cv
Mulrain 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 (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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 24th day of June, two thousand eleven.
PRESENT:
             BARRINGTON D. PARKER,
             DENNY CHIN,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.

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JUNIOR MULRAIN,
                    Plaintiff-Appellant,

                   v.                                   10-2119-cv

COMMISSIONER OF SOCIAL SECURITY,
               Defendant-Appellee.

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FOR APPELLANT:            JUNIOR MULRAIN, pro se, Brooklyn, NY.

FOR APPELLEE:             VARUNI NELSON and KATHLEEN A. MAHONEY,
                          Assistant United States Attorneys, KAREN T.
                          CALLAHAN, Special Assistant United States
                          Attorney, of counsel, for Loretta E. Lynch,
                          United States Attorney for the Eastern
                          District of New York, Brooklyn, NY.

             Appeal from a judgment of the United States District

Court for the Eastern District of New York (Gleeson, J.).
            UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

            Plaintiff-appellant Junior Mulrain, proceeding pro se,

appeals from the district court's April 29, 2010, decision

granting the Commissioner's motion for judgment on the pleadings

under Federal Rule of Civil Procedure 12(c), upholding the

Commissioner's denial of Mulrain's application for benefits under

the Social Security Act (the "Act").    We assume the parties'

familiarity with the underlying facts and procedural history of

the case, as well as the issues on appeal.

             We review an order granting judgment on the pleadings

de novo.    See Jasinski v. Barnhart, 341 F.3d 182, 184 (2d Cir.

2003).     In reviewing determinations made by the Commissioner, we

conduct a plenary review of the administrative record, see Schaal

v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (noting that the focus

of review is the administrative ruling, not the district court's

decision), and we will not set aside the Commissioner's decision

unless the factual findings are not supported by substantial
evidence or incorrect legal standards were applied, see Burgess

v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008); see also Halloran v.

Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).    A determination is

supported by substantial evidence if the record contains "such

relevant evidence as [a] reasonable mind might accept as adequate

to support a conclusion."    Jasinski, 341 F.3d at 184 (citation

omitted).



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            We have conducted an independent and de novo review of

the record in light of these principles and agree with the

district court's decision.    The medical evidence in the record

concerning Mulrain's condition and his own testimony provide

substantial evidence to support the administrative law judge's

("ALJ") determination that Mulrain was not disabled under the

Act.

            Mulrain has submitted new evidence to the district

court and on appeal, substantially all of which postdated the

period for which benefits were denied.    We could remand the case

to the Commissioner for consideration of this additional evidence

if Mulrain were able to show that the new evidence "is material

and that there [wa]s good cause for the failure to incorporate

such evidence into the record in a prior proceeding."    42 U.S.C.

§ 405(g).    To carry his burden, Mulrain would have to show that

(1) the proffered evidence is new and not merely cumulative of

what is already in the record; (2) the proffered evidence is

material, meaning that it is (a) relevant to his condition during

the time period for which benefits were denied; (b) probative;

and (c) reasonably likely to have influenced the Commissioner to

decide his application differently; and (3) good cause exists for

his failure to present the evidence earlier.    See Tirado v.

Bowen, 842 F.2d 595, 597 (2d Cir. 1988).

            Mulrain's new evidence fails to satisfy this standard

because it is not material to his disability claim.     Although

medical evidence, like Mulrain's, that postdates an ALJ's

decision is not irrelevant per se, see Pollard v. Halter, 377
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F.3d 183, 193 (2d Cir. 2004), the medical reports here do not

suggest that Mulrain's condition was more serious than previously

thought.   Rather, they indicate that Mulrain had muscle cramps

and foot pain, but that no further treatment -- other than

stretching -- was warranted.   Nor do the additional materials

provided on appeal indicate that Mulrain's condition has worsened

or that his treatment has changed.    Therefore, these materials

are neither probative nor likely to have affected the ALJ's

consideration of Mulrain's disability claim.

           We have considered Mulrain's other arguments and

conclude that they are without merit.    Accordingly, the judgment

of the district court is AFFIRMED.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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