FREDERICK J. SCULLIN, Jr., Senior District Judge.
Plaintiff Erin S. Connell f/k/a Erin Wroblewski, proceeding pro se, brought this action pursuant to the Social Security Act, 42 U.S.C. § 405(g) ("Act"), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"), denying her application for benefits. See generally Dkt. Nos. 1, 16. Pending before the Court are the parties' crossmotions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. See Dkt. Nos. 16, 19.
Plaintiff applied for benefits on January 30, 2012, alleging disability as of March 15, 2011. See Administrative Record ("AR") at 70. The Social Security Administration denied Plaintiff's applications on May 25, 2012. See id. at 77. Plaintiff filed a timely request for a hearing on June 25, 2012. See id. at 85. A video hearing was held on February 20, 2014, before Administrative Law Judge Joseph L. Brinkley ("ALJ"). See id. at 13. Attorney Timothy J. McMahon represented Plaintiff at the hearing. See id.
On July 18, 2014, the ALJ issued a written decision in which he made the following findings "[a]fter careful consideration of the entire record. . . ."
See AR at 15-24 (citations omitted).
The ALJ's decision became the Commissioner's final decision on October 20, 2015, when the Appeals Council of the Social Security Administration denied Plaintiff's request for review.
Plaintiff's letter, construed liberally, disagrees with the ALJ's decision that she is able to perform her past relevant work. See Dkt. No. 16 at 10 (stating, "I do not feel that I could in any way shape or form function in a work environment"). Moreover, Plaintiff limits her discussion to her mental issues including her anxiety, depression, borderline personality disorder, and loss of memory. In other words, Plaintiff argues that there is not substantial evidence in the record to support the ALJ's residual functional capacity determination and his decision that she can perform work as a cleaner.
Before addressing the merits of the ALJ's decision, the Court must consider whether it can perform meaningful review of the record due to the new evidence that Plaintiff has submitted. In this regard, the Court must first determine whether the evidence Plaintiff submitted to the Appeals Council, after the ALJ's decision, warrants remand because it contradicts the ALJ's decision and whether the new evidence Plaintiff submitted to the Court in this proceeding warrants remand to the ALJ. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
After obtaining a negative decision from the ALJ, a claimant "may request" that the Appeals Council review an ALJ's decision. See 20 C.F.R. § 404.967. When a claimant requests such review, the Appeals Council "may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to an administrative law judge." Id. The Appeals Council will grant a claimant's request for review rather than deny or dismiss the request if
20 C.F.R. § 404.970(a).
Furthermore, the regulations specifically permit claimants to submit additional evidence to the Appeals Council that was not before the ALJ. See 20 C.F.R. §§ 404.968, 404.970(b). If a claimant does so, the Appeals Council determines whether the evidence "relates to the period on or before the date of the [ALJ's] decision" and whether it is "new and material." 20 C.F.R. § 404.970(b). Evidence is new if it is not "`merely cumulative of what is already in the record'" and is material if the new evidence is relevant, probative, and provides a reasonable possibility that the new evidence could change the Commissioner's decision. Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (quotation and other citation omitted); see also Lisa v. Sec'y of Dep't of Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991) (quotation omitted).
The Appeals Council is required to consider "new and material" evidence if it "relates to the period on or before the date of the [ALJ's] hearing decision" and must "then review the case if it finds that the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record." Perez, 77 F.3d at 45 (quoting § 404.970(b)) (other citation omitted). "Therefore, even when the Appeals Council declines to review a decision of the ALJ, it reaches its decision only after examining the entire record, including the new evidence submitted after the ALJ's decision." Id. In other words, "new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision." Id. Accordingly, the court's role is to review the entire administrative record, which includes the new evidence, to decide whether the Commissioner's decision is supported by substantial evidence. See id.; see also Sears v. Colvin, No. 8:12-CV-570, 2013 WL 6506496, *5 (N.D.N.Y. Dec. 12, 2013) (stating, "[i]f the Appeals Council fails to consider new, material evidence, `the proper course for the reviewing court is to remand the case for reconsideration in light of the new evidence'" (quotation omitted)); Bushey v. Colvin, 552 F. App'x 97, 98 (2d Cir. 2014) (summary order) (supporting the Appeals Council's decision declining review because new evidence "did not alter the weight of the evidence so dramatically as to require the Appeals Council to take the case").
The Supreme Court has defined substantial evidence to mean "`more than a mere scintilla'" of evidence and "`such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). Accordingly, a reviewing court "`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.'" Cohen v. Comm'r of Soc. Sec., 643 F. App'x 51, 52 (2d Cir. 2016) (summary order) (quoting Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). In other words, "[t]he substantial evidence standard means once an ALJ finds facts, [a reviewing court may] reject those facts `only if a reasonable factfinder would have to conclude otherwise.'" Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (quotation and other citation omitted).
In this case, the Appeals Council acknowledged that it had reviewed the new evidence but did not provide any reasons for its conclusion that, despite this new evidence, substantial evidence supported the ALJ's decision. See AR at 1, 4. The new evidence that Plaintiff submitted to the Appeals Council included treatment notes from Dr. Maroldo on July 8, 2014, and treatment with, among others, Dr. Reddy at St. Joseph's Hospital on January 7, 2014, February, 18, 2014, March 11, 2014, April 1, 2014, May 13, 2014 and July 1, 2014. See AR at 695-736, EX. "30F."
Plaintiff visited Dr. Maroldo's office on July 8, 2014, to follow-up on her treatment from a year earlier.
Dr. Maroldo's treating notes regarding Plaintiff's July 8, 2014 visit are generally consistent with the ALJ's decision. One minor contradiction is that Plaintiff reported group therapy made her symptoms worse whereas the ALJ credited Plaintiff's ability to attend group therapy as showing that she was able to leave her home and be in crowds. See id. at 22. However, the ALJ ultimately concluded, in determining Plaintiff's RFC, that she should not engage in teamwork and could only "occasionally" engage in nonphysical contact with coworkers or the public. See id. at 17. Furthermore, Dr. Maroldo's treating notes only reflect Plaintiff's subjective complaints that were documented elsewhere. Thus, the Court concludes that this new evidence, by itself, does not justify remand. See Hutchinson v. Colvin, No. 6:14-CV-787, 2016 WL 843376, *5 (N.D.N.Y. Mar. 1, 2016).
However, in addition to Dr. Maroldo's July 8, 2014 treatment notes, Plaintiff submitted treatment notes from St. Joseph's Hospital to the Appeals Council.
The treatment notes from St. Joseph's Hospital paint a different picture than the one the ALJ provides. In his decision, the ALJ noted that, "[b]y January 2013, the [Plaintiff] reported symptom control" and progress. See id. at 20. Thus, the ALJ stated, "it is unclear how the [Plaintiff] could report such difficulty going out of her home, when she was able to go to doctor's appointments, was cooperative during most examinations, and even attended group therapy sessions." See id. To the contrary, the St. Joseph's Hospital records show that Plaintiff's symptoms were getting worse despite Plaintiff consistently taking medication.
Had the ALJ reviewed these records, the Court finds that he might have reached a different conclusion. For example, the ALJ gave Dr. Iosileveck's medical opinion limited weight because there were inconsistencies in the treatment notes and because Dr. Iosileveck last saw the Plaintiff in August 2013.
Furthermore, if the ALJ were to give the St. Joseph's Hospital treating notes great weight, it may very well be dispositive based on the additional record evidence. Uncontroverted testimony from the Vocational Expert stated that, if Plaintiff were off-task 10% of the time during an eight-hour work day or if she could not perform low-stress work, it would eliminate her ability to perform her past relevant work. See AR at 68. Since the St. Joseph's Hospital records consistently label Plaintiff as erratic, labile, with poor insight, and continuing symptoms, the ALJ might very well find that Plaintiff would be unable to perform low stress work or to be on task. Thus, the Court finds that the Appeals Council erred when it determined that the new evidence that Plaintiff submitted was insufficient to trigger review of the ALJ's decision.
Moreover, the evidence that Plaintiff submitted to the Court includes two letters from Dr. Reddy claiming "100% disability." See Dkt. No. 16 at 2-3.
On the facts of this case, the ALJ's ultimate conclusion and credibility assessment is incomplete without a review of Plaintiff's continued history of treatment within the relevant time period. Thus, because the new evidence submitted to the Appeals Council and to the Court contradicts the ALJ's decision, remand is necessary. See Perez, 77 F.3d at 46; see also Lesterhuis, 805 F.3d at 88; Sobolewski v. Apfel, 985 F.Supp. 300, 311 (E.D.N.Y. 1997); 42 U.S.C. § 405(g).
On remand the ALJ should consider whether the evidence contained in Exhibit 30F, as well as the letters from Dr. Reddy in which she stated that Plaintiff is 100% disabled, alters his judgment.
Having reviewed the entire record in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby
In this case, it is immaterial that the evidence that Plaintiff submitted to the Court was generated after the ALJ decision because it "directly supports many of [Plaintiff's] earlier contentions regarding [her] condition." Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004). Furthermore, Dr. Reddy's letter provides an assessment of Plaintiff's condition while under her control prior to the ALJ's final decision. Moreover, Dr. Reddy's assessment "suggests that, during the relevant time period, [Plaintiff's] condition was far more serious than previously thought[.]" Id. Therefore, the Court finds that it may consider Dr. Reddy's letter.
