THÉRÈSE WILEY DANCKS, Magistrate Judge.
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.
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's applications
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:
(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.)
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.)
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).
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:
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.
"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.
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.
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.)
ACTION: Notice of Social Security Ruling (SSR).
SUMMARY: We are providing notice of SSR 17-4p. This SSR clarifies our responsibilities and the responsibilities of a claimant and a claimant's representative to develop evidence and other information in disability and blindness claims.
FOR FURTHER INFORMATION CONTACT: Patrick McGuire, Office of Appellate Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 605-7100. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at
SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are doing so in accordance with 20 CFR 402.35(b)(1). Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans' benefits programs. We may base SSRs on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations.
Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1).
This SSR will remain in effect until we publish a notice in the Federal Register that rescinds it, or until we publish a new SSR that replaces or modifies it.
(Catalog of Federal Domestic Assistance, Programs Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006—Supplemental Security Income.)
Nancy A. Berryhill,
Acting Commissioner of Social Security.
This Ruling clarifies our responsibilities and those of the claimant and the claimant's representative to develop evidence and other information in disability and blindness claims under titles II and XVI of the Social Security Act (Act). This Ruling applies at all levels of our administrative review process, as described below.
Sections 206(a), 223(d), and 1614(a) of the Social Security Act, as amended; 20 CFR 404.935, 404.970, 404.1512, 404.1513, 404.1593, 404.1594, 404.1614, 404.1740, 404.1745, 416.912, 416.913, 416.993, 416.994, 416.1014, 416.1435, 416.1470, 416.1540, and 416.1545.
We need complete evidentiary records to make accurate, consistent disability determinations and decisions at each level of our administrative review process. Although we take a role in developing the evidentiary record in disability claims, claimants and their appointed representatives have the primary responsibility under the Act to provide evidence in support of their disability or blindness claims. Consequently, we expect claimants and their representatives to make good faith efforts to ensure that we receive complete evidence.
A representative's duty to submit evidence is derivative of the claimant's;
This Ruling explains the requirement to submit or inform us about evidence and clarifies who has the final responsibility to obtain written evidence.
In general, an individual has a statutory obligation to provide us with evidence to prove to us that he or she is disabled or blind. The Act also precludes us from finding that an individual is disabled or blind unless he or she submits such evidence to us.
The Act also provides that we "shall consider all evidence available in [an] individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under a disability."
Our regulations require an individual to submit or inform us about all evidence known to him or her that relates to whether or not he or she is disabled or blind.
Generally, individuals must submit or inform us about any written evidence no later than 5 business days prior to the date of the scheduled hearing before an ALJ.
We expect individuals to exercise their reasonable good faith judgment about what evidence "relates" to their disability claims.
To satisfy the claimant's obligation under the regulations to "inform" us about written evidence, he or she must provide information specific enough to identify the evidence (source, location, and dates of treatment) and show that the evidence relates to the individual's medical condition, work activity, job history, medical treatment, or other issues relevant to whether or not the individual is disabled or blind. If the individual does not provide us with information specific enough to allow us to identify the written evidence and understand how it relates to whether or not the individual is disabled or blind, the individual has not informed us about evidence within the meaning of 20 CFR 404.935, 404.1512, 416.912 or 416.1435, and we will not request that evidence.
Our regulations require appointed representatives to assist claimants in complying fully with their responsibilities under the Act and our regulations. All representatives must faithfully execute their duties as agents and fiduciaries of claimants. In that regard, representatives must assist claimants in satisfying the claimants' duties regarding the submission of evidence and in complying with our requests for information or evidence as outlined in the prior section.
While our regulations state that a claimant must submit or inform us of all written evidence at least 5 business days prior to a hearing, our rules of conduct place additional requirements on representatives. As discussed above, under the rules of conduct, representatives are: (1) Required to act with reasonable promptness to help obtain information or evidence the claimant must submit; (2) required to assist the claimant in complying with our requests for information or evidence as soon as practicable; (3) prohibited from unreasonably delaying or causing a delay of the processing of a claim without good cause; and (4) prohibited from actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings. Therefore, we expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative.
We will evaluate each circumstance on a case-by-case basis to determine whether to refer a possible violation of our rules to our Office of the General Counsel (OGC). For example, in accordance with the regulatory interpretation discussed above, we may refer a possible violation of rules to OGC when:
· A representative informs us about written evidence but refuses, without good cause, to make good faith efforts to obtain and timely submit the evidence;
· a representative informs us about evidence that relates to a claim instead of acting with reasonable promptness to help obtain and timely submit the evidence to us;
· the representative waits until 5 days before a hearing to provide or inform us of evidence when the evidence was known to the representative or available to provide to us at an earlier date;
· the clients of a particular representative have a pattern of informing us about written evidence instead of making good-faith efforts to obtain and timely submit the evidence; or
· any other occasion when a representative's actions with regard to the submission of evidence may violate our rules for representatives.
When we refer a possible violation to OGC, it does not change our duties with respect to the development of the evidence.
Before we make a determination that an individual is not disabled, we must develop the individual's complete medical history, generally for at least 12 months preceding the month in which he or she applied for benefits.
We will assist with developing the record and may request existing evidence directly from a medical source or entity that maintains the evidence if:
· We were informed about the evidence (in the manner explained above) no later than 5 business days before the date of the scheduled hearing; or
· we were not informed about the evidence at least 5 business days before the date of the scheduled hearing, but one of the circumstances listed in 20 CFR 404.935(b) or 416.1535(b) applies.
At the Appeals Council level of review, development of evidence is more limited. The Appeals Council will not obtain or evaluate additional evidence when deciding whether to grant review unless:
· One of the circumstances listed in 20 CFR 404.970(b) or 416.1470(b) applies and the individual or his or her representative shows that the evidence is related to the period on or before the date of the hearing level decision; or
· the claim is a title XVI claim that is not based on an application for benefits (e.g., an age-18 redetermination).
[FR Doc. 2017-21252 Filed 10-3-17; 8:45 am]
BILLING CODE 4191-02-P
OF COUNSEL: E. KENTON FOULKE, ESQ., FOULKE LAW FIRM, Counsel for Plaintiff, 5 Court Street, Auburn, NY 13021.
OF COUNSEL: AMELIA STEWART, ESQ., Special Assistant U.S. Attorney, SOCIAL SECURITY ADMINISTRATION, OFFICE OF GENERAL COUNSEL-REGION I, Counsel for Defendant, 625 JFK Building, 15 New Sudbury Street, Boston, MA 02203.
GLENN T. SUDDABY, Chief United States District Judge
Plaintiff was born in 1968, making her 46 years old at her application filing date and 49 years old at the date of the ALJ's decision. Plaintiff reported having a high school education with a history of special education. Plaintiff alleges disability due to fibromyalgia, headaches, borderline personality disorder, osteopenia, osteoarthritis, acid reflux, obsessive compulsive disorder ("OCD"), panic attacks, anxiety attacks, depression, overactive bladder, back problems, high blood pressure, scoliosis, and sinus problems.
Plaintiff applied for Supplemental Security Income on December 15, 2015. Plaintiff's application was initially denied on January 7, 2016, after which she timely requested a hearing before an Administrative Law Judge ("ALF). Plaintiff appeared at a video hearing before ALJ Laureen Penn on February 14, 2018. On March 12, 2018, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. (T. 15-35.)
Generally, in her decision, the ALJ made the following six findings of fact and conclusions of law. (T. 18-35.) First, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her application filing date. (T. 18.) Second, the ALJ found that Plaintiff's bilateral knee arthritis, fibromyalgia, osteoarthritis, degenerative disc disease, spondylosis, sacroiliitis, idiopathic scoliosis, lumbosacral radiculopathy, systemic lupus erythematosus, undifferentiated connective tissue disease, osteoporosis, degenerative joint disease, carpal tunnel syndrome, major depressive disorder, OCD, generalized anxiety disorder, post-traumatic stress disorder ("PTSD"), panic disorder without agoraphobia, and cognitive disorder are severe impairments. (Id.) Third, the ALJ found that Plaintiff's severe impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the "Listings"). (T. 20-24.) Specifically, the ALJ considered Listings 1.02, 1.04, 11.14, 12.04, 12.06, 12.11, 12.15, 14.02, and 14.06. (Id.) Fourth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform
(T. 24.) Fifth, the ALJ found that Plaintiff is unable to perform her past relevant work. (T. 33.) Sixth, the ALJ found that Plaintiff remains able to perform a significant number of sedentary jobs in the national economy, specifically as a document preparer, a toy staler, and an addresser. (T. 34.) The ALJ therefore concluded that Plaintiff is not disabled.
Generally, in her memorandum of law, Plaintiff asserts two arguments. (Dkt. No. 10, at 7-19 [Pl.'s Mem. of Law].) First, Plaintiff argues that the ALJ's RFC finding is not supported by substantial evidence because (a) that finding is based on her lay opinion, her selective consideration of the evidence, and her misinterpretation of the evidence, and (b) the ALJ erred in failing to afford controlling weight to the opinion from treating physician Martin Schaeffer, M.D., in that she failed to provide adequate reasons supported by the evidence for declining to adopt the limitations opined by Dr. Schaeffer. (Id. at 7-17.)
Second, Plaintiff argues that the ALJ erred in refusing to consider or accept evidence from the Brownell Center that was submitted two days before the hearing because (a) it resulted in the ALJ considering an opinion from Nurse Practitioner Melinda Myers without the benefit of her treatment records, and (b) it left the record incomplete such that the ALJ could not have rendered a sufficient decision without that evidence. (Id. at 17-19.)
Generally, in his memorandum of law, Defendant asserts two arguments. (Dkt. No. 14, at 3-18 [Def.'s Mem. of Law].) First, Defendant argues that the ALJ's RFC finding is supported by substantial evidence because (a) the ALJ properly and fairly considered and reconciled all of the evidence in the record when making that finding, and (b) the ALJ properly considered Dr. Schaeffer's opinion and provided good reasons for declining to afford that opinion controlling weight or to accept all of the opined limitations. (Id. at 3-15.)
Second, Defendant argues that the ALJ was entitled to reject the late-submitted evidence from the Brownell Center because Plaintiff's counsel did not submit that evidence within the time period required by the regulations and did not offer any reason sufficient under the regulation to merit consideration of that evidence. (Id. at 15-18.) Defendant notes that the record does contain other treatment notes from the Brownell Center, and argues that the regulations allow for consideration of an otherwise "incomplete" record where the relevant evidence was not submitted within the time period required by law. (Id.)
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, 91 S.Ct. 1420, 1427 (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).
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, 107 S.Ct. 2287 (1987). The five-step process is as follows:
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord 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. Thompson, 540 U.S. 20, 24 (2003).
After careful consideration, the Court answers this question in the affirmative for the reasons stated in Defendant's memorandum of law. (Dkt. No. 14, at 3-15 [Def.'s Mem. of Law].) To those reasons, the Court adds the following analysis.
Plaintiff has attempted to poke holes in the ALJ's decision by honing in on specific statements and arguing why she believes those statements were erroneous, including statements that there was no objective evidence to support the reported severity of Plaintiff's back pain, that the MRI of her lumbar spine showed only mild-to-moderate changes, and that Plaintiff did not make ongoing complaints to providers about her back pain. (Dkt. No. 10, at 7-11 [Pl.'s Mem. of Law].) Plaintiff's various arguments are without merit.
Plaintiff also argues that the ALJ erred in failing to afford controlling weight to Dr. Schaeffer's opinion and in failing to adopt the limitations contained in that opinion. (Dkt. No. 10, at 11-17 [Pl.'s Mem. of Law].) "[T]he opinion of a claimant's treating physician as to the nature and severity of the impairment is given `controlling weight' so long as it is `well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.'" Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 [2d Cir. 2008]). However, in situations where the treating physician's opinion is not entitled to controlling weight, the ALJ must "explicitly consider, inter alia: (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist." Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 [2d Cir. 2013]). However, "[w]here an ALJ's reasoning and adherence to the Regulations is clear, she is not required to explicitly go through each and every factor of the Regulation." Blinkovitch v. Comm'r of Soc. Sec., 15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017) (Carter, M.J.) report and recommendation adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017) (Suddaby, C.J.) (citing Atwater v. Astrue, 512 F. App'x 67, 70 [2d Cir. 2013]). After considering these factors, "the ALJ must `comprehensively set forth [his] reasons for the weight assigned to a treating physician's opinion.'" Greek, 802 F.3d at 375 (quoting . Burgess, 537 F.3d at 129). "The failure to provide `good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand.'" Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30).
As an initial matter, the Court rejects Plaintiff's argument that the ALJ was required to afford Dr. Schaeffer's opinion controlling weight because, as the ALJ found, it is not well-supported or consistent with the substantial evidence in the record. In affording only "some" weight to Dr. Schaeffer's opinion,
Additionally, the ALJ's RFC finding is, as a general matter, supported by substantial evidence. Although the ALJ inadvisedly afforded "some weight" to all of the opinions in the record, it is clear from her explanations which opinions she relied on to a greater extent when formulating the RFC and which she found to be lacking. As to the functional opinions related to Plaintiff's physical impairments from the relevant time period, the ALJ made the following findings: (1) the opinion from consultative examiner Mohammed Zaman, M.D., was generally consistent with her complaints and the findings, but additional limitations were warranted in standing and walking due to subsequent treatment for her knee impairment;
The Court notes that Plaintiff did not challenge the weight afforded to any of the opinions related to her mental functioning or argue that the mental RFC was unsupported, other than to argue that the ALJ lacked sufficient evidence to make a mental determination (an argument the Court rejects, as will be discussed below in Part III.2 of this Decision and Order). As a result, the Court states only that it finds that the ALJ's findings as to Plaintiff's mental functioning are supported by substantial evidence based on her consideration of the evidence as a whole and her appropriate weighing of the relevant opinion evidence.
For all of the above reasons, the Court finds that the ALJ's RFC finding is consistent with the applicable legal standards and supported by substantial evidence.
Section 1435 of Title 20 of the Code of Federal Regulations states that "[e]ach party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 416.912, no later than 5 business days before the date of the scheduled hearing." 20 C.F.R. § 1435(a). 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" (1) the agency's actions mislead the party, (2) the party had a physical, mental, educational, or linguistic limitation that prevented him or her from submitting the evidence, or (3) the party experienced an unusual, unexpected, or unavoidable circumstance that prevented him or her from submitting the evidence earlier, such as serious illness, the death or serious illness of an immediate family member, accidental destruction or damage to the records, or inability to obtain those records in the relevant time despite active and diligent searching. 20 C.F.R. § 416.1435(a)-(b).
In her decision, the ALJ explained that she declined to admit the evidence from the Brownell Center because Plaintiff's representative submitted it the day prior to the hearing "indicating that these had been in his files but had been missed previously," and this reason did not meet an exception in 20 C.F.R. § 416.1435(b). (T. 15.) The ALJ noted that the representative "should reasonably have been aware of the missing records given the absence of updated records in the file and his appointment to the case more than six months prior to the hearing." (Id.)
At the hearing, Plaintiff's representative attempted to explain his late submission of the relevant records, noting that, when he received the records, they did not include the therapy notes from NP Myers, so he wrote another letter to the provider to request those and intended to put all of the records together to submit, but the provider never sent the therapy notes; it was not until he was reviewing the records from the Brownell Center that were already submitted that he realized the updated records had not been submitted, about which he stated, "I guess I overlooked it." (T. 44, 75-76.) The representative also stated, "I don't think I submitted the records that went up to 2015 but it made me think I did, and those would have been the complete records. But I don't think I'm the one that submitted those records up to 2015, I think that was put in by the Social Security Administration. So it was just a combination of unfortunate events." (T. 76.) In other words, Plaintiff's counsel saw records from the Brownell Center that had been submitted by the Social Security Administration and mistakenly believed that he had submitted the updated records.
The Court finds that the ALJ's determination that Plaintiff had not shown any of the exceptions in 20 C.F.R. § 416.1435(b) is consistent with the regulations and supported by substantial evidence. The representatives explanation makes it clear that he simply forgot to submit those updated records from the Brownell Center; such a mistake by a representative is not an unusual, unexpected, or unavoidable circumstance as contemplated by the regulation. Nor does his statement that the inclusion of older records from the Brownell Center made him think he submitted the updated records indicate that the Social Security Administration's actions in uploading those older files misled Plaintiff's counsel into believing the newer records had been submitted; a cursory glance at those older records would have revealed to him that they did not extend past 2015.
The circumstances of this case do not suggest that any different outcome is warranted. Plaintiff has been represented by her current counsel since June 23, 2017, which was approximately eight months before her hearing occurred, and thus counsel had plenty of time to obtain and submit mental health treatment records from the Brownell Center for the period after October 2015. (T. 236-38.) Additionally, the evidence in the record (excluding the relevant Brownell Center records) provides sufficient evidence from which the ALJ could assess Plaintiff's mental functioning; in addition to the opinion from NP Myers, the record contains a consultative examination and reports and examinations related to Plaintiff's mental health symptoms (particularly her anxiety) from her family physician and other providers. The Court therefore cannot say that the record is so insufficient that it rendered the ALJ incapable of making a determination without the ability to consider the more recent Brownell Center records. As a result, in the absence of any sufficient reason for failing to timely submit those records, the Court finds that the ALJ was within her discretion under the regulations to refuse to consider the late-submitted evidence.
