Summary
declining to reach remaining arguments where remand was warranted
Summary of this case from Karen S. v. Comm'r of Soc. Sec.Opinion
6:18-CV-1350 (TWD)
03-17-2020
JONATHAN V., Plaintiff, v. COMM'R OF SOC. SEC., Defendant.
APPEARANCES: JONATHAN V. Plaintiff, Pro Se U.S. SOCIAL SECURITY ADMIN. OFFICE OF THE GEN. COUNSEL Counsel for Defendant OF COUNSEL: DANIEL STICE TARABELLI, ESQ
APPEARANCES: JONATHAN V.
Plaintiff, Pro Se U.S. SOCIAL SECURITY ADMIN.
OFFICE OF THE GEN. COUNSEL
Counsel for Defendant OF COUNSEL: DANIEL STICE TARABELLI, ESQ THÉRÈSE WILEY DANCKS, United States Magistrate Judge DECISION AND ORDER
Currently before the Court, in this Social Security action filed by Jonathan V. ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff's motion for judgment on the pleadings and Defendant's motion for judgment on the pleadings. (Dkt. Nos. 14 and 18.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted and Defendant's motion for judgment on the pleadings is denied.
I. RELEVANT BACKGROUND
A. Procedural History
On September 4, 2015, Plaintiff applied for child's insurance benefits and Supplemental Security Income alleging disability beginning August 1, 2009, due to back pain from herniated discs, scoliosis and arthritis, bipolar disorder, depression, anger, attention deficit hyperactivity disorder, and effects of breaks in the left forearm (radius and ulna). (T. 106, 117, 125, 133-35, 139, 141, 216-29.) Plaintiff was born in 1989 and reported completing the twelfth grade. He has previous work as a material handler. (T. 218, 220, 276.)
The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative Transcript will be referenced as "T." and the Bates-stamped page numbers as set forth therein will be used rather than the page numbers assigned by the Court's CM/ECF electronic filing system.
Plaintiff's applications were initially denied on February 2, 2016, after which he timely requested a hearing before an Administrative Law Judge ("ALJ"). (T. 106-35, 158-71.) He appeared at an administrative hearing before ALJ David S. Pang on November 15, 2017. (T. 92-105.) Plaintiff was represented by Kimberly MacDougall, a non-attorney representative. Id. On December 28, 2017, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. (T. 136-57.) On September 13, 2018, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 1-6.)
As Defendant points out, Plaintiff based his original child's insurance benefits application on his mother's social security record and filed a child's insurance benefits application on his father's record the following month. (Dkt. No. 18 at 2, n.4; T. 133, 135, 249.)
B. The ALJ's Decision
The ALJ found Plaintiff had not attained the age of 22 as of August 1, 2009, the alleged onset date. (T. 141.) The ALJ noted Plaintiff had worked after the alleged disability onset date but the work did not rise to the level of substantial gainful activity. (Id.) He found Plaintiff's lumbar disc disorder with herniation and degenerative changes, status post ulnar fracture, bipolar disorder, and social anxiety disorder are severe impairments. (T. 142.) He determined Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1. (T. 142-43.) The ALJ found Plaintiff has the residual functional capacity ("RFC") to perform light work with additional limitations. (T. 144.) Specifically, the ALJ found Plaintiff:
is able to lift up to 20 pounds at a time, frequently lift or carry objects weighing up to 10 pounds, and stand, walk, and sit for approximately six hours each in an eight-hour workday. [He] can push and pull the same amount as he can lift and carry. [He] can occasionally climb ramps and stairs and he can never climb ladders, ropes or scaffolds. He can occasionally stoop, kneel, crouch and crawl. [He] can tolerate occasional exposure to concentrated dust, fumes and gases. He is limited to performing simple, routine and repetitive tasks and he can have occasional interaction with supervisors, coworkers and the public.(T. 144.) The ALJ found Plaintiff has been unable to perform any past relevant work at all times relevant to the decision. (T. 150.) The ALJ determined he can perform other jobs existing in significant numbers in the national economy. (T. 150-151.) Therefore, the ALJ concluded Plaintiff is not disabled. (T. 151-52.)
C. The Parties' Briefings on Their Cross-Motions
Plaintiff, appearing pro se, argues the ALJ erred because he disregarded the opinions from Plaintiff's treating physicians and gave more weight to the opinions of the consultative examiners. (Dkt. No. 14 at 4-5, 19, 39-40, 64-65.) Plaintiff maintains he is disabled by his physical and mental conditions. (Id. at 5-14, 20-35, 41-63, 66-74.) Defendant argues substantial evidence supports the ALJ's assessment of Plaintiff's RFC and the Step Five determination. (Dkt. No. 18 at 3-14.) In so doing, Defendant maintains the ALJ properly considered the opinions of treating providers Nathaniel Gould, M.D., and Steven Schaeffer, M.D., and consultative examiners Brian Cole, M.D., and Cheryl Loomis, Ph.D. (Id. at 5-13.)
II. RELEVANT LEGAL STANDARD
A. Standard of Review
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Under that five-step sequential evaluation process, the decision-maker determines:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of working. Id.
III. REMAND IS REQUIRED BECAUSE IT IS UNCLEAR WHETHER EVIDENCE WAS RECEIVED AND/OR CONSIDERED BY THE ALJ AND/OR THE APPEALS COUNCIL
A. Applicable Law
"Once evidence is added to the record, the Appeals Council must then consider the entire record, including the new evidence, and review a case if the 'administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.'" Lesterhuis v. Colvin, 805 F.3d 83, 86 (2d Cir. 2015) (quoting 20 C.F.R. § 404.970(b)). "The Appeals Council is obligated to consider 'new and material evidence.'" Stratton v. Colvin, 51 F. Supp. 3d 212, 218 (N.D.N.Y. 2014) (citing 20 C.F.R. § 404.970(b)). "New evidence is 'material' if it is: '(1) relevant to the claimant's condition during the time period for which benefits were denied and (2) probative.'" Stratton, 51 F. Supp. 3d at 218 (quoting Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004)). "'The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide claimant's application differently.'" Id. (quoting Pollard, 377 F.3d at 193) (alteration in original).
In December 2016, the Social Security Administration ("SSA") adopted the requirement that a claimant must submit or inform SSA about written evidence at least five business days before the date of his or her scheduled hearing. 20 C.F.R. § 416.1435(a); Social Security Ruling ("SSR") 17-4p, 2017 WL 4736894, at *2 (SSA Oct. 4, 2017). "If a party fails to comply with this requirement to submit all written evidence at least five days before the hearing, 'the administrative law judge may decline to consider or obtain the evidence' unless" one of the exceptions in 20 C.F.R. § 416.1435(a)-(b) applies. Shari Lee Z. v. Saul, 19-CV-0265 (GTS), 19-CV-0268, 2019 WL 6840134, at *6 (N.D.N.Y. Dec. 16, 2019). The five-day rule was effective at the time of the ALJ's December 2017 decision here.
B. Analysis
The certified administrative record contains office treatment records from Bassett Healthcare dated January 2012 to September 2014. (T. 61-91.) Based on the time stamps at the top of each page, it appears this evidence was obtained (and/or submitted) by Ms. MacDougall, Plaintiff's non-attorney representative at the administrative level, on November 27, 2017, prior to the ALJ's December 28, 2017, decision. (T. 1-6, 308.) A letter to ALJ Pang dated November 8, 2017, from Ms. MacDougall indicates she requested records from orthopedist Joseph Dutkowsky, M.D., on October 20, 2017 and received records on November 8, 2017, and also submitted them that day. (T. 300-01.) Ms. MacDougall's letter also indicates records were missing pertaining to a second surgery and continued treatment of Plaintiff's left ulnar fracture, which she noted limited his left hand function. (T. 300.) It appears the records Ms. MacDougall submitted on November 8, 2017, are at Exhibits 17F and 18F based on the time stamp on the top of each page. (T. 511-20.) The ALJ's December 2017 decision does not reflect consideration of any additional evidence regarding Plaintiff's forearm surgery and it does not appear any additional records from Dr. Dutkowsky were added to his exhibit list following the administrative hearing on November 15, 2017. (T. 92-105, 136-57.)
At the hearing, Ms. MacDougall noted Plaintiff had surgery to remove the hardware in his forearm, but additional evidence or missing records were not discussed. (T. 94-95.) The ALJ's decision indicates Plaintiff submitted or informed him about all written evidence at least five business days before the date of Plaintiff's scheduled hearing. (T. 139.) Therefore, it appears the evidence at T. 61-91 may have been submitted to the ALJ following Plaintiff's November 15, 2017, hearing but was not otherwise discussed or exhibited.
Defendant cites to the additional evidence in his brief and notes that Plaintiff attached a large amount of evidence to his brief, arguing the evidence in Plaintiff's brief is not new because it is in the administrative record already. (Dkt. No. 18 at 4, n.7, 6.) That much is true, Plaintiff does include and cite to some pages from the evidence at T. 61-91 in his brief. (Dkt. No. 14 at 6, 20-25, 74.) However, the Court's review indicates these records were not considered by the ALJ and the ALJ did not address any violations of the five-day rule or applicable exceptions. (T. 139.) Because the evidence was not addressed or exhibited by either the ALJ or the Appeals Council, it remains unclear if this additional evidence was ever properly considered by the Agency. (T. 1-6, 136-57.) Ms. MacDougall also did not address this evidence in her June 12, 2018, letter brief to the Appeals Council. (T. 1-6, 306-07.)
"It is the function of the Social Security Administration—not the federal district court—to 'weigh the conflicting evidence in the record' and resolve such conflicts." Blisko v. Comm'r of Soc. Sec., 378 F. Supp. 3d 140, 144-45 (E.D.N.Y. May 7, 2019) (quoting Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); citing Cage v. Comm'r v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012)). Here, it is not clear the additional evidence was ever weighed at all and that should not be undertaken by this Court in the first instance. Therefore, although the Court does not reach a finding on the materiality of this evidence, the Court finds remand is required here because such evidence directly contradicts portions of the ALJ's analysis. (T. 145.) For example, the ALJ stated in his decision that there was no evidence that removal of the hardware in Plaintiff's forearm took place after an appointment with Dr. Dutkowsky in September 2011. (T. 145.) The additional evidence indicates that, in January 2012, Plaintiff was status-post removal of hardware of both the left radius and ulna performed by Dr. Dutkowsky in November 2011; however, the evidence at T. 61-91 does not contain actual operative records from that procedure. (T. 61.) The ALJ also stated that after the September 2011 appointment with Dr. Dutkwosky, "[t]he next medical evidence is from over three years later." (T. 145.) The ALJ's analysis therefore implies there was a gap in Plaintiff's treatment between September 2011 and December 2014, whereas the additional evidence not exhibited or addressed by the ALJ or the Appeals Council indicates Plaintiff was seen by treatment providers in January, May, August, and September 2012, and then again in June 2014 with additional testing and scans of the lumbar spine performed in 2014. (T. 61-91, 145, 355-66, 516.)
The ALJ's summary of the medical evidence indicates Plaintiff's last appointment in 2011 was in October. (T. 145.) However, the treatment note cited by the ALJ from Dr. Dutkowsky at Exhibit 17F is dated September 28, 2011. (T. 516.) --------
To be sure, it is possible the Appeals Council could find this additional evidence is insufficient to trigger review of the ALJ's decision. However, it is unclear whether this evidence was ever received or properly considered by the Agency and this Court therefore is unable to determine whether the final decision of the Commissioner is supported by substantial evidence. Therefore, this mater is remanded so the Commissioner can clarify consideration of the evidence at T. 61-91. Because remand is required, and in light of the ALJ's indication that there was a gap in treatment between September 2011 and December 2014, the Court declines to reach findings on issues related to the ALJ's RFC and Step Five determinations. (T. 144-51.)
ACCORDINGLY, it is
ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 14) is GRANTED; and it is further
ORDERED that Defendant's motion for judgment on the pleadings (Dkt. No. 18) is DENIED; and it is further
ORDERED that the decision of the Commissioner is REVERSED and this case REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for a proper explanation of the consideration of the additional evidence and any other further proceedings, consistent with this Decision and Order; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Dated: March 17, 2020
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge