CHARLES J. SIRAGUSA, District Judge.
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), denying the application of Felix Mendez ("Plaintiff") for Supplemental Security Income ("SSI") Benefits. Plaintiff claims to be completely disabled due a variety of ailments, including depression, sleep apnea and back pain, but the Commissioner found otherwise. Now before the Court is Defendant's motion for judgment on the pleadings (Docket No. [#11]) and Plaintiff's cross-motion [#22] for the same relief. Plaintiff's application is granted, Defendant's application is denied, and this matter is remanded for further administrative proceedings.
The reader is presumed to be familiar with the facts and procedural history of this action. The Court will briefly summarize the record as necessary for purposes of this Decision and Order.
On September 22, 2014, Plaintiff filed an application for SSI benefits, claiming that he became totally disabled on September 22, 2009, although he had no reported earnings at all for 2009.
After the Social Security Administration denied the claim initially, a hearing was held before an Administrative Law Judge ("ALJ") on July 26, 2016, at which Plaintiff appeared and waived his right to proceed with an attorney or other representative. The ALJ took testimony from Plaintiff, a mental health therapist, and a Vocational Expert ("VE").
On August 22, 2016, the ALJ issued his decision, denying Plaintiff's application and finding that he was not disabled at any time between the date of his application and the date of the decision. In pertinent part, applying the familiar five-step analysis for evaluating disability claims, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the date of the application, September 22, 2014; that he had serious impairments consisting of "affective disorder, anxiety disorder, post-traumatic stress disorder (PTSD), obstructive sleep apnea, lumbar spine degenerative changes and back pain, hypertension, obesity, and alcohol abuse in remission";
that he was unable to perform any past relevant work; and that with the RFC set forth above he was able to perform several other jobs identified by the VE, including "housekeeper," DOT 323.687-014 and "office helper," DOT 239.567-010.
After receiving the ALJ's unfavorable ruling, Plaintiff appealed to the Appeals Council. In connection with that appeal, Plaintiff submitted more than four hundred pages of additional evidence. However, the Appeals Council declined to review the ALJ's decision. Regarding the additional evidence submitted by Plaintiff, the Appeals Council stated:
Transcript 2.
On November 30, 2017, Plaintiff commenced this action, proceeding pro se. Pursuant to this Court's standing order on Social Security actions, Plaintiff was supposed to file a motion for judgment on the pleadings within a certain time after the filing of the administrative transcript, but he did not do so. Consequently, on August 6, 2018, the Commissioner filed the subject motion [#11] for judgment on the pleadings. Subsequently, Plaintiff retained an attorney, and on March 6, 2019, he filed the subject cross-motion [#22] for judgment on the pleadings. Plaintiff contends that the Commissioner's decision should be reversed for the following reasons: 1) the ALJ did not properly evaluate the opinion of consultative examiner Dr. Lin; 2) the ALJ did not properly evaluate the opinion of Plaintiff's treating mental health therapist, Ms. Gorman;
The Court agrees with Plaintiff that the Appeals Council erred, or, at least, that the Appeals Council's ruling is so cursory that the Court cannot say whether it erred. Accordingly, this matter must be remanded.
42 U.S.C. § 405(g) states, in relevant part, that "[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive." The issue to be determined by this Court is whether the Commissioner's conclusions "are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard." Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id
Plaintiff contends that the Appeals Council erred insofar as it "reject[ed] certain records provided after the ALJ's decision," stating:
As discussed earlier, Plaintiff submitted two groups of documents to the Appeals Council. The first group was dated prior the ALJ's decision, and the Appeals Council indicated that it did "not show a reasonable probability that it would change the outcome of the decision." The second group was dated after the ALJ's decision, and the Appeals Council stated that it would not affect the ALJ's decision because it did not relate to the period at issue. Plaintiff's argument in this action expressly relates only to the first group, which, as already mentioned, consisted of
Transcript 2.
Defendant responds that the Commissioner's "regulations do not require the Appeals Council to provide detailed explanations concerning evidence submitted, but will [sic] only briefly say `why it did not accept the additional evidence.' See, 20 C.F.R. § 416.1470(c) (2017)."
At the outset, Defendant's citation to 20 C.F.R. § 416.1470(c) in this instance is incorrect, since that sub-section applies to evidence that either does not relate to the period on or before the ALJ's decision, or that was submitted beyond a deadline for submission, neither of which is the case here.
The language used by the Appeals Council in denying the appeal expressly referred to this subsection.
The Appeals Council's adverse ruling essentially amounts to a sentence: "We find this evidence does not show a reasonable probability that it would change the outcome of the decision." In some other cases where the Appeals Council has used this same cursory statement to deny review, courts have ignored the Appeals Council's lack of explanation and simply examined the additional evidence for themselves to decide whether the new evidence actually might change the outcome. See, e.g., Velez v. Berryhill, No. 3:18CV01024(SALM), 2019 WL 2052013, at *6 (D. Conn. May 9, 2019) ("The Appeals Council determined that `the evidence did not show a reasonable probability that it would change the outcome of the decision.' The five pages of records documenting treatment prior to the ALJ's decision do not reveal any information the ALJ had not already considered. . . . As to the remaining records, [they do] not relate to the time frame under consideration by the ALJ.. . . Accordingly, the Appeals Council did not err in failing to consider this evidence as it did not meet the requirements of 20 C.F.R. § 404.970(a)(5) and § 416.1470(a)(5).").
This Court might be inclined to take a similar approach if the additional evidence was so limited and so clear that remand could only result in one outcome. Here, however, the additional evidence dated prior to the ALJ's decision consists of approximately 400 pages, which is more than half of the entire administrative record. The Appeals Council's perfunctory statement declining to review this material essentially leaves the Court without any idea as to whether the Council's ruling was correct, and with no way to make that determination except to scrutinize the records on its own. This the Court declines to do.
The Second Circuit has previously indicated that such "cursory, formulaic" statements by the Appeals Council are not helpful, and may not be accepted at face value. See, Pollard v. Halter, 377 F.3d 183, 192-93 (2d Cir. 2004) ("[T]he Appeals Council's conclusion that the `new regulations do not provide a basis to change the Administrative Law Judge's decision,' is cursory, formulaic, and not supported by any legal or factual reasoning. . . . [As some district courts have done,] we likewise refuse to credit the unsupported conclusion by the Appeals Council that Ms. Pollard's application would have failed under the Final Rules. We conclude that a remand to the SSA for reconsideration under the Final Rules is necessary.").
Other courts have also concluded that a cursory, formulaic denial by the Appeals Council under 20 C.F.R. § 416.1470(a)(5) requires remand to the Commissioner. See, e.g., Velez v. Berryhill, 2019 WL 2052013, at *7 ("The Appeals Council's failure to consider evidence that meets the criteria of 20 C.F.R. § 404.970(a)(5) and § 416.1470(a)(5) warrants remand. Additionally, the Appeals Council's cursory, formulaic rejection of the evidence without any legal or factual reasoning, is insufficient. Therefore, remand for reconsideration of plaintiff's SSI application is appropriate.") (citations and internal quotation marks omitted); see also, Kocol v. Berryhill, No. 17-CV-01268-LGF, 2019 WL 2428511, at *4 (W.D.N.Y. June 11, 2019) ("Remand is appropriate, however, in instances where the Appeals Council provides no reason for accepting an ALJ's decision upon receiving supplemental evidence from a claimant's treating physician.") (citations omitted).
Further, the post hoc rationalizations offered by Defendant's counsel, for why the additional evidence submitted to the Appeals Council would not have resulted in a different outcome, are not sufficient. See, Newbury v. Astrue, 321 F. App'x 16, 18 (2d Cir. 2009) ("A reviewing court may not accept appellate counsel's post hoc rationalizations for agency action.") (citations omitted).
Accordingly, the Court finds that this matter must be remanded for the Commissioner to explain why the additional evidence submitted would not result in a different outcome than that reached by the ALJ. Additionally, although Plaintiff here expressly objected only to the Appeals Council's treatment of the evidence dated prior to the ALJ's decision, the Court directs that the Commissioner also consider whether the evidence dated after the ALJ's decision might nevertheless be material to the disability determination. See, John v. Berryhill, No. 1:17-CV-00963 (JJM), 2019 WL 2314620, at *4 (W.D.N.Y. May 31, 2019) ("Here, the Appeals Council summarily declined to review Nurse Ireland's assessment, explaining only that it "does not relate to the period at issue". There may be reasons why Nurse Ireland's assessment is not new and material. However, the Appeals Council's conclusory treatment of Nurse Ireland's assessment, which post-dated the relevant period by mere days and was at least the second medical opinion assessing plaintiff with hand limitations, was insufficient."); see also, Gurnett v. Berryhill, No. 16-CV-955-FPG, 2018 WL 3853387, at *4 (W.D.N.Y. Aug. 14, 2018) ("The Appeals Council's cursory, formulaic rejection of the evidence simply because it was generated after the ALJ's decision, without any legal or factual reasoning, is insufficient. See 20 C.F.R. § 404.976(b) ("If [the claimant] submit[s] evidence that does not relate to the period on or before the date of the [ALJ's] hearing decision, the Appeals Council will explain why it did not accept the additional evidence[.]) (emphasis added).").
Because the Court is remanding the matter for further administrative proceedings that may moot the other arguments raised by Plaintiff, the Court declines to consider those arguments at this time.
For the reasons discussed above, Plaintiff's motion for judgment on the pleadings [#22] is granted, Defendant's motion [#11] is denied, and this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order. The Clerk of the Court is directed to enter judgment for Defendant and close this action.
So Ordered.