Opinion
20-CV-5598 (GBD) (BCM)
09-19-2022
JECCA JECCA, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jecca Jecca filed this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying her application for Disability Insurance Benefits (DIB). Now before me for report and recommendation are the parties' cross-motions for judgment on the pleadings. (Dkts. 19, 31.) For the reasons that follow, plaintiff's motion should be granted, the Commissioner's motion should be denied, and the case should be remanded to the Commissioner for further proceedings.
Pursuant to Fed.R.Civ.P. 25(d), Kilolo Kijakazi, the current Acting Commissioner of Social Security, is substituted for former Acting Commissioner Andrew Saul as the defendant in this case.
I. BACKGROUND
Plaintiff was born on June 11, 1962. See Certified Administrative Record (Dkt. 16) (hereinafter "R. ") at 213, 262. She completed four years of college (R. 256) and worked as a communications manager, teaching assistant, web page designer, and - from March 2016 through April 2017 - as a freelance artist, writer, and photographer. (Id.) Plaintiff alleges a disability onset date of March 7, 2016. (R. 213, 256.) In a Disability Report submitted on May 16, 2018, she listed her medical conditions as PTSD (post-traumatic stress disorder), cachexia anorexia syndrome, peripheral neuropathy, gelatinous bone narrow transformation, difficulty walking, strabismus esotropia, double vision, severe dry eyes, myositis, myalgia, paresthesia, dysesthesia, "sormitheion," abdominal pain, irritable bowel syndrome, gastritis, carpal tunnel syndrome, De Quervain's tenosynovitis, degenerative disc disease, cervical radiculopathy, Raynaud's disease, and pain, "chronic and severe." (R. 255.) She also wrote that she stood five feet six inches tall and weighed 75 pounds. (Id.)
A. Overview of Issues
The principal issues in this case are (i) whether the Administrative Law Judge (ALJ) properly denied plaintiff's claim at step two for lack of medical evidence showing that any of her impairments were severe; and (ii) whether the case should nonetheless be remanded for further proceedings so that the Commissioner can consider additional medical evidence that plaintiff attempted to submit prior to the ALJ's decision but that the ALJ never saw, and that the Appeals Council declined to exhibit. On the unusual facts of this case, I answer both questions in the affirmative.
As discussed in more detail below, plaintiff put herself at a disadvantage, from the outset of the DIB application process, by refusing to permit the Social Security Administration (SSA) to contact any of her medical providers or obtain any of the medical records necessary to support her claim. Although she assured the agency that she would submit all required records herself, she did so slowly and erratically, sending in scattered notes and reports - some of them seemingly incomplete, and some annotated in her own handwriting - from a fraction of the many medical providers that she listed as having treated her for her impairments during the relevant period.
On May 31, 2018, plaintiff's claim was initially denied for insufficient evidence. Thereafter, although she requested review by an ALJ, she disadvantaged herself again by waiving her right to an evidentiary hearing, leaving the ALJ nothing but the fragmentary documentary record upon which to rely. In a written decision dated May 8, 2019, the ALJ characterized that record (accurately) as "quite limited," and denied plaintiff's claim on the ground that she had failed to show that any of her claimed impairments were "severe," as required by 20 C.F.R. §§ 404.1520(a)(ii) and (c).
What the ALJ did not recognize - and in my view could not have known - was that some of the medical records that plaintiff attempted to submit to the SSA did not arrive at all, while others, likely due to staff error, were not properly scanned and filed in plaintiff's electronic claim folder. Plaintiff herself had ample opportunity to alert the agency to this problem, but failed to do so until April 25, 2019, when she submitted (or attempted to submit) an explanatory letter with a complete copy of all of the records that she had previously sent to the agency and that she wanted the ALJ to consider in support of her claim.
Plaintiff's April 25, 2019 submission did not arrive in time for the ALJ to see it. In fact, insofar as this Court can determine from the present administrative record, that April 25, 2019 submission failed to arrive at all. However, on July 17, 2019 - after plaintiff requested Appeals Council review of the adverse ALJ decision - she resubmitted her April 25, 2019 letter and its enclosures to the Appeals Council (along with other, more recent medical records that plaintiff had never previously attempted to submit).
The Appeals Counsel declined to exhibit any of plaintiff's resubmitted evidence and, on November 8, 2019, denied her request for review, rendering the ALJ's determination final. In so doing, however, the Appeals Council failed to recognize that the resubmitted evidence included, among other things: (i) complete copies of medical records that were before the ALJ only in part; (ii) opinion evidence from plaintiff's long-time primary care physician, which never reached the ALJ; and (iii) plaintiff's detailed responses to the SSA's standard Function Report, describing her pain and other symptoms, which similarly never reached the ALJ. These documents - all of which plaintiff attempted to submit (in some cases twice) prior to the ALJ's unfavorable decision - could have produced a different decision, thus warranting remand.
B. Initial Application
Plaintiff began filling out her DIB application form online in late 2017. (R. 228-31.) The form advised her that, in order to make a decision, "we need to obtain your . . . Medical Records[.]" (R. 228.) It then explained, "We will help get your records if you give us permission. Signing the Medical Release Form (Authorization to Disclose Information to the Social Security Administration) is voluntary, but failing to sign it, or revoking it before we receive the necessary information, could prevent an accurate or timely decision on your claim, and could result in [a] denial or loss of benefits." (Id.)
On November 10, 2017, plaintiff signed the medical release form, known as a Form SSA-827. (R. 232.) But she also signed a letter stating, "I hereby Revoke the Medical Release Form, SSA-827 as of today, Nov. 10, 2017." (R. 314.) Thereafter, when plaintiff printed out her DIB application and mailed it to the SSA - which according to her handwritten notes was on April 19, 2018, followed by a second mailing on May 2, 2019 - she wrote "revoke" or "revocation" in the margins of the document whenever the release was mentioned. (See, e.g., R. 228-30, 233, 317-18.) She also submitted a copy of her revocation letter "signed again" on April 30, 3018. (R. 314.)
On May 11, 2018, an SSA staff member called plaintiff to discuss the status of her medical release form, warning that her claim could be denied "if we do not have sufficient information." (R. 319.) Plaintiff, however, "insisted on revoking the SSA-827." (Id.) She reconfirmed that revocation in a letter dated May 16, 2018. (R. 111.) On May 18, 2018, a different staff member called plaintiff to ask "if we can use the 827 in [the] file or not." (R. 309.) Plaintiff said "no," explaining that she "revoked the document and [the SSA] cannot use it." (Id.) Plaintiff assured the caller that she had "all of her medical records and will provide what we need." (Id.)
Also on May 18, 2018, the SSA sent plaintiff an 8-page Function Report (Adult) form and a 10-page Work History form, asking her to return them by mail. (R. 289-308.)
On May 31, 2018, plaintiff's claim was initially denied for "insufficient evidence." (R. 175, 192-96.) At that point the only evidence in the agency's records, beyond the application itself, was a 38-page typed summary (designated Exhibit 1F) that was prepared by plaintiff personally and listed the many doctors and other medical providers who had treated her during the relevant period (29 doctors and other medical providers, at 20 hospitals or clinics), the conditions for which they treated her, the tests they ordered, and the medicine or other therapies they prescribed. (R. 33673.) No actual medical records, from any of the listed providers, were in plaintiff's file.
C. Proceedings Before the ALJ
Plaintiff timely requested a hearing before an ALJ, on the ground that on May 31 and June 1, 2018 (the day of and the day after the initial determination), she had mailed medical evidence to the SSA, which was not "scanned in" before the agency made a decision. (R. 198-99.) At the same time, plaintiff waived her right to appear and testify before the ALJ, opting instead to have her case "decided on the written merits" pursuant to 20 C.F.R. § 404.948(b). (Id.) In a letter dated June 6, 2018, the SSA reiterated what a staff member told plaintiff on the phone on June 5, 2018: that a personal appearance before the ALJ would provide her with the opportunity to present written evidence and testimony, which "could be helpful" to the ALJ in making a decision, particularly in plaintiff's case, "since the [ALJ] would have an opportunity to hear an explanation as to how [her] impairments prevent [her] from working and restrict [her] activities." (R. 199.)
Thereafter, while plaintiff remained steadfast in her refusal to allow the SSA to contact her providers (see R. 272, 322, 398-99) or to appear personally before the ALJ (see R. 322), scattered medical records and other evidence began to make their way to her electronic file at the SSA. Plaintiff's June 1, 2018 submission arrived and was designated Exhibit 3F. (R. 395-97.) It consisted of a 1-page cover letter from plaintiff and a 2-page letter from her primary care physician, Desiree Chow, M.D., dated May 29, 2018, which listed, in bare-bones fashion, plaintiff's "medical diagnoses," the conditions that were "addressed" at her last visit (on November 6, 2017), and various additional diagnoses found in plaintiff's "medical history." (Id.)
On June 5, 2018, plaintiff sent in another letter "revoking the Medical Release Form SSA-827 as of today, June 5, 2018," adding, in a hand-written note, that she did not have any "additional records to add at this time" beyond the "Function Report, Work History, and Medical Diagnoses I sent May 18, 2018 and June 1, 2018[.]" (R. 398-99.) The June 5, 2018 submission was designated Exhibit 4F. (Id.)
On June 7, 2018, the agency received a 2-page segment of the 8-page Function Report, filled out by plaintiff. (R. 270-71.) In response to many of the questions on the form, plaintiff wrote, "see attached." (Id.) It appears that on May 31, 2018, plaintiff prepared a 9-page typed document, in which she answered the questions on the Function Report in detail, and attempted to send it to the SSA, along with her completed Work History, under cover of a letter dated May 31, 2018. (R. 92-109.) However, there is no sign of the May 31, 2018 cover letter, the 9-page Function Report attachment, or the Work History in the portion of the SSA file available to the ALJ. As relevant here, the only copy of the Function Report attachment in the administrative record was sent, the following year, to the Appeals Council, which (as discussed below) declined to exhibit it.
In her 9-page Function Report attachment, dated and signed on May 31, 2018, plaintiff stated, among other things, that she suffered from "physical and psychological pain that is chronic and severe," which made walking "very painful" and going up even one step "extremely painful." (R. 101.) She wrote that she had poor balance, poor vision - requiring prism glasses - and tended to fall. (Id.) Due to her Raynaud's disease, she experienced "excruciating pain from coldness" and tried not to go out when the temperature was less than 60 degrees. (Id.) She typically became exhausted by 5:30 p.m. but frequently woke in the night, "sometimes in terrible pain[.]" (R. 102.) She experienced anxiety and mentally relived several near-death experiences. (Id.) Her ability to do housework, shop, travel, and groom herself was limited by her pain, poor balance, and poor vision, and her social life was similarly limited, though she "spen[t] a lot of time with doctors and therapists." (R. 103-05.) Plaintiff wrote that she could not lift more than one pound without pain, could not stand "for more than 15 minutes" without support, had to "lie down and rest about every 30 minutes," because "[s]itting does not alleviate pain," could not "use her hands without pain," and sometimes had difficulty speaking. (R. 106.)
On December 1, 2018, plaintiff sent the SSA a grab-bag of medical records from assorted providers, together with a cover letter summarizing the evidence, which the agency designated, collectively, as Exhibit 2F. (R. 374-94.) According to the cover letter, the submission totaled 39 pages, "printed recto-verso" (on both sides of the page). (R. 374.) However, Exhibit 2F totals only 21 pages, including three pages of plaintiff's cover letter, marked "page 1/5," "page 3/5," and "page 5/5." (R. 374-76.) Other portions of Exhibit 2F are similarly incomplete. For example, the exhibit contains one page of Dr. Chow's 2-page letter dated May 29, 2018 (compare R. 396-97 with R. 377), as well as treatment notes from other doctors that appear only in part, with pages missing.
See, e.g., R. 378 (one page of a treatment note from Kimberly Ann Sackheim. M.D., internally paginated as "1 of 3"); R. 379 (similar); R. 381-82 (two pages of a treatment note from Monique Uriarte, R.N., internally paginated as "1 of 6" and "3 of 6."
On January 7, 2019, the SSA sent plaintiff a CD "that contains all of the evidence in your electronic folder to date," and reminded her: "It is your responsibility to provide medical evidence showing that you have an impairment(s) and how severe it is during the time you allege disability." (R. 275.) The SSA urged plaintiff to submit "[a]ll medical records" for the relevant period - "from one year prior to the alleged onset date to the present" - and to complete the forms that had been sent to her. (Id.)
On January 15, 2019, plaintiff wrote to the SSA to say that she had submitted additional information on December 1, 2018, but that she could not tell if it had been received because she could not open the CD on her MacIntosh. (R. 207.) She asked for a "printed copy of all of the information . . . in my file." (Id.) Instead, on March 6, 2019, an SSA staff member called plaintiff on the telephone and "went through the MER [medical evidence of record] with the claimant." (R. 322.) According to the staff member, plaintiff "stated that the file was up to date." (Id.) On the same call, plaintiff confirmed that "she had not completed an e827, as she wished to obtain evidence herself," and that she still "wished to waive the hearing." (Id.)
On March 7, 2019, the SSA sent plaintiff another CD containing all of the evidence in her electronic folder to date, and reminded her, again, that it was her responsibility to provide the medical evidence necessary to support her claim. (R. 324.) On March 18, 2019, the assigned ALJ,
Melissa Warner, wrote to plaintiff personally with the same message, and to advise that time was running short. (R. 321.) The ALJ gave plaintiff 14 days to appoint a representative, should she wish to do so, and the same period to ensure that her file was complete:
As you have declined to have us request evidence on your behalf, you also have 14 days to provide me all the evidence you want me to consider in your claim unless a representative is appointed. If you believe you need additional time, you must call and ask me and provide the reasons, and I will decide if you have good cause to receive additional time.(Id.)
Plaintiff did not act within the next 14 days. Nor did she seek additional time. Instead, on April 25, 2019 (after 38 days), she prepared a 3-page letter to ALJ Warner (R. 23-25), stating that she had just reviewed the contents of the CD, which the Legal Aid Society helped her print out, and determined that there were "many copies missing." (R. 23.) Plaintiff stated that she was enclosing "duplicate copies" of all of her prior submissions, totaling 122 pages (id.), and described the materials she was resubmitting, including - as relevant here - a "Residual Functional Capacity [RFC] Assessment from Dr. Desiree Chow," which plaintiff said that she had sent, along with her Function Report attachment and various medical records (totaling 58 pages) on May 31, 2018; and a complete copy of the cover letter and medical records (totaling 39 pages) that she sent on December 1, 2018. (R. 23-24.) Regarding her December 1, 2018 submission, plaintiff noted, correctly, that "it appears [that] only one side of each page was scanned into my file." (R. 24.)
Compare R. 374-94 (Exhibit 2F; 21 pages total, including three pages of the 5-page cover letter) with R. 116-159 (43 pages total, including complete 5-page cover letter).
Although plaintiff states that she sent her April 25, 2018 letter by certified mail - and later provided a certified mail receipt (R. 23) and a tracking number (R. 26) to support that claim - there is no sign of the letter itself, Dr. Chow's RFC assessment, or any of the letter's other enclosures in the portion of the SSA file available to the ALJ. To the contrary: although the administrative record now before this Court contains multiple copies of the April 25, 2019 letter (R. 23-25, 113-15), those copies were submitted months later, to the Appeals Council, which (as discussed below) declined to exhibit it or any of its enclosures.
D. The ALJ's Decision
On May 8, 2019, ALJ Warner issued an unfavorable decision (Decision) (R. 181-88), concluding that plaintiff was insured through March 31, 2018 (R. 184), but that she was not disabled, as that term is used in the Act, at any time from her alleged onset date of March 7, 2016 through her date last insured (DLI). (R. 188.)
At step one of the required five-step analysis, see 20 C.F.R. § 404.1520(a)(4)(i), the ALJ found that plaintiff did not engage in substantial gainful activity during the relevant period. (R. 184.) At step two, see 20 C.F.R. § 404.1520(a)(4)(ii), the ALJ found that plaintiff had the following medically determinable impairments:
Sicca syndrome, carpal tunnel syndrome, chronic migraine without aura, myalgias and myositis, chronic pain, idiopathic peripheral neuropathy, unspecified eating disorder/anorexia, degenerative disc disease of the cervical spine[,] low-grade papillary urothelial carcinoma status post transection of the bladder, chronic kidney disease (stage II), sloping to a mild to moderate sensorineural hearing loss, and unspecified estrobia[.](R. 184.)
The ALJ explained that this list was based largely on the May 29, 2018 letter from Dr. Chow listing plaintiff's past and present diagnoses. (R. 185.) However, the ALJ wrote, the agency did not have any "treatment notes or physician opinions" from Dr. Chow "that might otherwise serve to develop the record." (Id.) ALJ Warner also noted that although the record before her included a few treatment notes from other providers, they were all "dated subsequent to the date last insured," and some of them "ended before discussion of exam findings or additional diagnoses." (R. 186.) Consequently, although the ALJ gave plaintiff the "benefit of the doubt" that the impairments listed by Dr. Chow were "medically determinable" (R. 186-87), she found that plaintiff had failed to establish that any of them were "severe." (Id.) The ALJ explained:
Besides Dr. Chow's letter, the medical records available to the ALJ included a handful of treatment notes, some of them incomplete or cut off, from: (i) Dr. Sackheim, who saw plaintiff on August 10 and November 6, 2018, for "Generalized Body Aches" and related conditions (R. 37879); (ii) Nurse Uriarte, who saw plaintiff on October 9, 2018, for "follow-up," and who wrote that plaintiff complained of "excruciating chronic pain" throughout her body, for which no cause had been found and which was getting worse despite trials of Cymbalta, Lyrica, and "other pain regimens" (R. 381-82); (iii) Amy Wu, M.D., who saw plaintiff on September 11, 2018 for right ear pain but noted that she was "well appearing" and that her hearing was normal (R. 392); and (iv) an optometrist (identified in a handwritten note from plaintiff as Suzanne Bellante, O.D.), who saw plaintiff on October 9, 2018, and found that her vision was 20/20 with correction but that she had "unspecified subjective visual disturbances," "unspecified esotropia" (misalignment of the eyes), and dry eye syndrome. (R. 391.) The ALJ also reviewed a cervical spine MRI report dated August 30, 2018, showing "diffusely abnormal bone marrow signal" and "[s]evere left posterior facet arthritic changes" (R. 380); portions of two surgical pathology reports, dated October 17 and 18, 2018, showing no bone marrow abnormalities (R. 383-84); portions of several lab reports showing what appear to be normal blood test results (R. 385-90); an unreadable page on which plaintiff wrote, by hand, "nasal pharynx biopsy results" (R. 393); and a July 13, 2018 letter from plaintiff's health plan approving coverage for an antifungal medication. (R. 394.)
[I]t is the claimant's burden to provide sufficient information so that functional limitations can be established. In this case, the medical evidence of record is merely a list of conditions with a few scattered treatment notes after the date last insured. Even these notes are largely devoid of examination details and findings, and it seems a great deal of claimant's treatment evidence has not been submitted.(R. 187.)
Because the ALJ found at step two that plaintiff did not have any "severe" impairments (R. 184), the analysis did not proceed further. See 20 C.F.R. § 404.1520(a)(4) ("If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step."); id. § 404.1520(a)(4)(ii) ("If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled.").
E. Proceedings Before the Appeals Council
Plaintiff timely sought review by the Appeals Council, initially stating that she had sent "125 pages of documents" to the SSA on April 25, 2019, which were "not reviewed" by the ALJ, and "still have not been scanned." (R. 211.) On May 30, 2019, the Council informed plaintiff that she could "provide additional evidence that is new, material, and related to the period on or before the date of the hearing decision," but must submit it within 25 days. (R. 10.) On June 17, 2019, plaintiff requested an extension of time "to send you additional information," noting again that she sent a total of 125 pages on April 25, 2019, but was not certain whether those documents were "scanned in." (R. 26.)
On July 17, 2019, plaintiff submitted a letter to the Appeals Council stating that she was enclosing "19 pages of new medical records," along with "125 pages which were apparently not fully scanned in the records you have on file." (R. 12-15.) The 19 pages of "new medical records" all date from May and June 2019, more than a year beyond plaintiff's DLI. (R. 16-22, 28-39.) The "125 pages which were apparently not fully scanned in the records you have on file" comprise plaintiff's April 25, 2019 letter and its enclosures, which plaintiff submitted (or attempted to submit) even earlier. The enclosures include:
• Plaintiff's 9-page Function Report narrative, dated May 31, 2018, which she first submitted (or attempted to submit) on May 31, 2018, and resubmitted (or attempted to resubmit) on April 25, 2019 (R. 100-109);
• Plaintiff's 5-page letter, dated December 1, 2018, along with complete copies of all of the medical records listed in that letter, which she first sent on December 1, 2018 - at which point some but not all pages were scanned and became Exhibit 2F - and resubmitted (or attempted to resubmit) on April 25, 2019 (R. 116-59); and
• Dr. Chow's RFC assessment, dated May 22, 2018, which plaintiff claims to have first submitted (or attempted to submit) on May 31, 2018, and resubmitted (or attempted to resubmit) on April 25, 2019. (R. 86-91.)
In her RFC assessment, Dr. Chow listed plaintiff's primary diagnosis as "chronic pain" and her secondary diagnosis as "eating disorder." (R. 86.) She opined that plaintiff could lift "less than 10 pounds," could stand and walk for "less than 2 hours in an 8-hour workday," would need to alternate sitting and standing, and was limited in her ability to push and pull with either the upper or the lower extremities. (R. 87.) According to Dr. Chow, plaintiff was also limited in reaching, handling, fingering, and feeling, had visual limitations due to strabismus esotropia, for which she "require[d] prism glasses," "report[ed] difficulty with speaking due to anxiety," and had to avoid exposure to extremes in temperature, wetness, humidity, noise, vibrations, fumes, and hazards. (R. 89-90.)
On August 28, 2019, plaintiff submitted more medical evidence, in the form of a letter dated that same day and signed by Leonard Amoruso, M.D., who wrote that plaintiff was "being followed for" a long list of "active problems," including chronic PTSD, peripheral neuropathy, "[t]otal body pain," weight loss, and anorexia, and as a result was "disabled and unable to support herself at this time." (R. 41-43.)
On September 18, 2019, the Appeals Council again informed plaintiff that she could "provide additional evidence that is new, material, and related to the period on or before the date of the hearing decision," but must submit it within 25 days. (R. 7-8.)
On November 6, 2018, the Appeals Council denied plaintiff's request for review of the Decision, rendering the ALJ's determination final. (R. 1-4.) The Council reasoned that some of the evidence plaintiff submitted with her request for review was "not new" because "it is a copy of Exhibit(s) 1F, 2F, and 3F," which were before the ALJ; some of it was new, but post-dated the ALJ's Decision and did not "relate to the period at issue," such that it did not "affect the decision about whether you were disabled beginning on or before March 31, 2018"; and some of it, although new and related to the relevant time period, did not "show a reasonable probability that it would change the outcome of the decision." (R. 2.) Consequently, the Appeals Council did not exhibit any of plaintiff's additional evidence (id.), and "found no reason under our rules to review the Administrative Law Judge's decision." (R. 1.)
The Appeals Council did not discuss - and appears not to have noticed - that what it characterized as duplicative evidence was not in fact wholly duplicative, in that it included complete copies of various treatment notes and lab reports that were before the ALJ only in part. (Compare R. 374-94 with R. 116-59.) Nor did the Council discuss Dr. Chow's RFC assessment, which was dated May 22, 2018 - less than two months beyond plaintiff's DLI - but was never before the ALJ. Similarly, as the Commissioner now concedes, see Def. Mem. (Dkt. 20) at 18, the Appeals Council "overlooked" plaintiff's 9-page, detailed Function Report attachment, dated May 31, 2018, in which she described her pain and other symptoms and provided a function-by-function assessment of her ability to care for her personal needs, perform housework, travel, shop, socialize, and perform various job-related physical and mental activities. That document, like the unscanned portion of Exhibit 2F and Dr. Chow's assessment, was never before the ALJ.
F. Proceedings in this Court
Plaintiff filed this action, pro se, on July 20, 2020. (Dkt. 1.) The case was referred to me on March 31, 2021 (Dkt. 8), at which point I issued an Order of Service (Dkt. 9), which required the Commissioner to file the Certified Administrative Record within 90 days after service of the summons. The record was filed on July 13, 2021. (Dkt. 16.) After requesting and receiving one extension of time (Dkt. 18), the Commissioner filed her motion for judgment on the pleadings, and accompanying brief, on November 12, 2021. Plaintiff then requested and received two extensions of her time to cross-move (Dkts. 23, 27), ultimately filing her cross-motion and accompanying brief (Pl. Mem.) (Dkt. 31), through counsel, on March 10, 2022. The Commissioner filed a short reply brief (Def. Reply Mem.) (Dkt. 32) on March 31, 2022.
II. THE PARTIES' POSITIONS
The Commissioner argues that the ALJ correctly determined, based on the scanty record before her, that plaintiff, who bore the burden of proof before the agency, failed to establish the existence of any "severe" impairments on or prior to her date last insured, see Def. Mem. at 11-14; that the scantiness of the record "was not the fault of the ALJ," given plaintiff's repeated refusal to permit the agency to assist her in gathering records, id. at 14-16; and that any error on the part of the Appeals Council in failing to exhibit plaintiff's additional evidence was harmless, because none of that evidence "could have altered the outcome of the case." Id. at 18. In particular, the Commissioner contends, Dr. Chow's May 31, 2018 opinion would not have been deemed "persuasive" under the relevant regulatory standard, see 20 C.F.R. § 404.1520c(a)-(b), because it in turn relied heavily on plaintiff's "self-reported limitations" and was not supported by Dr. Chow's own "underlying treatment notes," id. at 18-19, while plaintiff's Function Report responses would not be enough, standing alone, "to establish her claim of disability." Id. at 19.
Plaintiff argues that despite the slim record before her, the ALJ erred in not accepting plaintiff's anorexia diagnosis, combined with her abnormally low Body Mass. Index (BMI), as a severe impairment, and then considering, at step three, whether that condition satisfied Listing 5.08 ("weight loss due to any digestive disorder"). Pl. Mem. at 5. Further, plaintiff contends, although plaintiff's refusal to authorize the SSA to obtain her medical records "severely limited the scope of available evidence at the hearing level," id. at 8, the Appeals Council should have exhibited the evidence that plaintiff submitted after the adverse ALJ decision - in particular Dr. Chow's functional assessment, as well as a few additional treatment notes from Dr. Chow - and remanded the matter to the ALJ to consider on a fuller record. Id. at 9-10.
Listing 5.08 is satisfied when the claimant has lost weight despite "continuing treatment as prescribed, with BMI of less than 17.50 calculated on at least two evaluations at least 60 days apart within a consecutive 6-month period." 20 C.F.R. 404, subpt. P., app. 1 § 5.08. Plaintiff's BMI, when she saw Dr. Wu on September 11, 2018, was 12.11. (R. 392.)
In her reply brief, the Commissioner points out that plaintiff had multiple opportunities to confirm that the record before the ALJ was complete - or to augment it - but "never asserted before the ALJ that any records she submitted were missing." Def. Reply Mem. at 2. She adds that an ALJ who finds no severe impairments at step two has no obligation to proceed to step three, and reiterates that none of the evidence submitted for the first time to the Appeals Council - even Dr. Chow's opinion - "could have changed the ALJ's decision." Id.
In my view, the Commissioner is correct as to the proceedings before the ALJ. Given the scant record before her - attributable largely to plaintiff's refusal to allow the agency to develop that record and her delay in reviewing her electronic file for deficiencies - the ALJ did not err in finding, at step two, that plaintiff failed to establish any severe impairments, and ending the analysis there. However, plaintiff is correct that at least some of the records that she submitted to the Appeals Council should have been exhibited, pursuant to 20 C.F.R. § 404.970(a)(5), because they were new, material, related to the period before the date of the Decision, and could have affected the ALJ's determination. Moreover, there is substantial evidence that plaintiff attempted to submit those records before the ALJ ruled, but failed to do so either because they went astray while in the hands of the Postal Service or due to evidence handling errors by the staff of the SSA, thus establishing good cause for the late addition pursuant to 20 C.F.R. § 404.970(b).
III. STANDARDS
In considering the parties' motions, I have reviewed the entire administrative record, (totaling 399 pages), including the portion that the Appeals Council declined to exhibit, and have applied the familiar and frequently reiterated standards used by federal district courts to review decisions of the Commissioner. Generally speaking, a court may set aside an ALJ's decision only if it is based upon legal error by that ALJ or if her factual findings are not supported by substantial evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *11-13 (S.D.N.Y. Mar. 12, 2019); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008). The substantial evidence standard is "a very deferential standard of review." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012).
Under Second Circuit law, "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." Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). Thus, while the reviewing court cannot look to such evidence to determine whether the ALJ (who did not see it) committed legal error, it can and should review the entire administrative record, including the new evidence, "to determine whether the agency decision is supported by substantial evidence." Citro v. Colvin, 2018 WL 1582443, at *4 n. 12 (S.D.N.Y. Mar. 28, 2018); see also Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015) (per curiam) (holding that the ALJ's decision was "not supported by substantial evidence, particularly in light of treating physician Dr. Holder's medical opinion, which was added to the record by the Appeals Council" and which "contradicted the ALJ's conclusion in important respects").
IV. ANALYSIS
A. The ALJ Did Not Err at Step Two
In a DIB case, at step two of the required five-step analysis, the ALJ must determine whether any of the claimant's medically-determinable impairments, singly or in combination, were "severe" prior to that claimant's DLI. A "severe" impairment "significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 404.1522(b). "Basic work activities" include physical functions such as "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling," the capacity for "seeing, hearing, and speaking," and mental functions such as "[u]nderstanding, carrying out, and remembering simple instructions," using "judgment," "[r]esponding appropriately to supervision, co-workers and usual work situations," and "[d]ealing with changes in a routine work setting. 20 C.F.R. § 404.1522(b)(1)-(6).
While the step two standard is de minimis, "intended only to screen out the very weakest cases," McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014), it is not met by evidence of "the mere presence of a disease or impairment." Bonilla Mojica v. Berryhill, 397 F.Supp.3d 513, 529 (S.D.N.Y. 2019) (quoting Taylor v. Astrue, 32 F.Supp.3d 253, 265 (N.D.N.Y. 2012)); accord Santiago Sanchez v. Comm'r of Soc. Sec., 2022 WL 3152585, at *8 (S.D.N.Y. Aug. 8, 2022); Holly P. v. Comm'r of Soc. Sec., 2022 WL 2872650, at *3 (W.D.N.Y. July 21, 2022); Dione B. v. Comm'r of Soc. Sec., 2022 WL 1458594, at *3 (W.D.N.Y. May 9, 2022). Rather, the claimant must furnish "medical evidence showing how these alleged impairments limited [her] ability to work." Britt v. Astrue, 486 Fed.Appx. 161, 163 (2d Cir. 2012) (summary order) (upholding ALJ's step two finding that plaintiff's obesity and arthritis were not severe).
"A finding that a condition is not severe means that the plaintiff is not disabled[.]" Rosario v. Apfel, 1999 WL 294727 at *5 (E.D.N.Y. Mar. 19, 1999); see also 20 C.F.R. § 404.1520(c) ("If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled.") Consequently, "a lack of evidence of severe impairment constitutes substantial evidence supporting a denial of benefits[.]" Martin v. Astrue, 337 Fed.Appx. 87, 89 (2d Cir. 2009) (summary order) (ALJ did not err in finding plaintiff's obesity non-severe where the medical reports in the record "provide no evidence of a severe impairment limiting work ability"); see also Britt, 486 Fed.Appx. 1 at 163; Santiago Sanchez, 2022 WL 3152585, at *8 (affirming denial of benefits at step two where ALJ found that plaintiff's multiple medically- determinable impairments did not limit her ability to perform basic work-related activities and consequently were not severe); Holly P., 2022 WL 2872650, at *3 (affirming denial of benefits at step two where the record contained insufficient objective evidence that plaintiff's migraines were severe); Dione B., 2022 WL 1458594, at *3-4 (affirming denial of benefits at step two where "despite diagnosis and treatment" for diabetes, sleep apnea, hyperlipidemia, hypertension, ophthalmoplegia, and lumbar spine disorder, "the record does not contain any evidence of functional limitations" due to these conditions).
Here, as in Santiago Sanchez and Dione B., the ALJ agreed that plaintiff had multiple medically determinable impairments, with which she was diagnosed and for which she was treated, but properly found, based on the mere "snippets of medical evidence" before her, Pl. Mem. at 9, and that plaintiff had failed to show that any of those impairments - including her anorexia -limited her ability to perform basic work activities on or prior to March 31, 2018. Indeed, although several of the medical records before the ALJ, including those from Dr. Chow, Dr. Wu, and Nurse Uriarte, noted plaintiff's diagnosis of anorexia nervosa (or, more generically, "eating disorder"), Dr. Chow and Nurse Uriarte also noted that this was a long-standing condition, first diagnosed when plaintiff was in her 20's (R. 381-82, 397), long before her alleged onset date in 2016. Moreover, as the ALJ noted (R. 186), Dr. Wu wrote that plaintiff was "[w]ell appearing" despite her abnormally low BMI of 12.11. (R. 392.) I note as well that Dr. Wu recorded that low BMI on September 11, 2018, five and a half months after plaintiff's DLI, and Nurse Uriarte wrote on October 10, 2018, that she "continued to lose weight" despite trying special diets with her nutritionist. (R. 381.) The record before the ALJ did not contain any notes from plaintiff's nutritionist, any direct evidence concerning plaintiff's BMI on or before March 31, 2018, or indeed any records predating her DLI that discussed her anorexia. Nor did plaintiff submit any medical evidence suggesting that her underweight condition was due to a "digestive disorder," as required by Listing 5.08.
Rather than penalize plaintiff for this gap, the ALJ expressly considered plaintiff's anorexia as a "mental impairment" and consequently "considered the four broad areas of mental functioning set out in the disability regulations for evaluating mental disorders[.]" (R. 187). Those areas are the ability to "[u]nderstand, remember, or apply information," the ability to "interact with others," the ability to "concentrate, persist, or maintain pace," and the ability to "adapt or manage [her]self." See 20 C.F.R. § 404.1520a(c)(3). Since "no evidence" of limitations in any of these areas was before the ALJ (R. 187), she did not err in concluding that plaintiff failed to establish that her medically-determinable impairments limited her ability to perform basic work-related mental activities.
The same is true for plaintiff's other medically-determinable impairments. For example, although plaintiff reported that she suffered chronic pain throughout her body, Nurse Uriarte noted that "no cause has been found thus far despite multiple consultations with physicians within multiple specialties." (R. 381.) Although plaintiff told Nurse Uriarte that she was "seeing pain management" (id.), Exhibit 2F did not contain any examination or treatment records from her pain management physician beyond two uninformative appointment summary pages from Dr. Sackheim (R. 378-79) and a cervical spine MRI report that did not appear to show any significant objective findings. (R. 380.) And although plaintiff's claimed impairments included strabismus esotropia (misaligned eyes), double vision, and severe dry eyes, her optometrist, Dr. Bellante, found that with correction she had 20-20 vision. (R. 391.) Moreover, as the ALJ noted (R. 185), she had no opinion evidence or detailed treatment notes from plaintiff's PCP, Dr. Chow. The ALJ's step two finding was thus free from legal error and - if judged against the record available to her - supported by substantial evidence.
It bears emphasis here that "[p]aintiff bears the ultimate burden of proving that she was disabled throughout the period for which benefits are sought[.]" Holly P., 2022 WL 2872650, at *3; see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) ("[t]he claimant has the general burden of proving that he or she has a disability within the meaning of the Act"). The plaintiff's burden is set forth in the Act, see 42 U.S.C. § 423(d)(5)(A) (an individual "shall not be considered to be under a disability" unless she "furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require"), and throughout the relevant regulations. See, e.g., 20 C.F.R. § 404.1512(a) (the claimant must "prove to [the SSA] that [she] is blind or disabled"). The claimant's duty is ongoing and "applies at each level of the administrative process." 20 C.F.R. § 404.1512(a). Moreover, the agency "will consider only impairments . . . about which [it] receive[s] evidence." Id. That evidence may not consist solely of "[a]n individual's statement as to pain or other symptoms[.]" 42 U.S.C. § 423(d)(5)(A). "[T]here must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques" showing the existence of impairments(s) that "could reasonably be expected to produce the pain or other symptoms alleged," as well as credible evidence "as to the intensity and persistence of such pain or other symptoms." Id.
Because a benefits proceeding (unlike a civil trial) is "essentially non-adversarial," a social security ALJ "must on behalf of all claimants . . . affirmatively develop the record." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citations omitted). Thus, in the ordinary case, it is the ALJ's duty "to investigate and develop the facts and develop the arguments both for and against the granting of benefits." Id. at 112-13. That duty is "heightened" when the claimant is unrepresented by counsel. Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (with pro se claimant, an ALJ must "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts"); accord Moran, 569 F.3d at 113.
This is not, however, an ordinary case. The ALJ cannot assist a claimant in developing the record without that claimant's permission. See 20 C.F.R. § 404.1512(b) ("Before we make a determination that you are not disabled, we will develop your complete medical history ....[and] will make every reasonable effort to help you get medical reports from your own medical sources when you give us permission to request the reports.") (emphasis added). "Even a pro se bears some responsibility for making a record," Marteua v. Comm'r of Soc. Sec., 2015 WL 639266, at *4 (N.D. Ill. Feb. 13, 2015), and cannot be heard to complain if - as here - she has repeatedly refused the agency's assistance in doing so. See, e.g., Webb v. Comm'r of Soc. Sec., 2017 WL 1164708, at *3-4 (E.D. Mich. Mar. 29, 2017) (rejecting plaintiff's claim that ALJ failed in his duty to develop the record where plaintiff asked for time to submit updated mental health treatment records, but did not ask the ALJ "to obtain or subpoena the additional records, let alone give permission for him to do so").
Here, plaintiff did not merely fail to ask for help in assembling an adequate record; she expressly and consistently rejected that help at every level of the agency proceedings, ignoring the many warnings she was given (R. 276, 309, 319, 321-22, 324) and insisting that she, and she alone, would gather and submit the necessary records to the SSA. (R. 111, 228, 309, 319, 322.) She also delayed in reviewing the record as assembled by the SSA, and declined to appear before the ALJ, thus depriving herself of the opportunity to testify, as well as the opportunity to discuss the record with the ALJ and notify her (before the Decision was issued) that certain documents had not been received or completely scanned in to plaintiff's electronic folder. Under these circumstances, the ALJ was not required to proactively "probe into, inquire of, and explore for" the possibility that the records before her was even slimmer than the plaintiff believed it to be, Cruz, 912 F.2d at 11, and did not err in failing to do so.
B. Remand is Required in Light of the Post-Decision Evidence
Under 20 C.F.R. § 404.970(a)(5) and (b), "[t]he Appeals Council will review a case if . . . [it] receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision," provided that the claimant shows "good cause" for not having submitted that evidence before the ALJ ruled. The Court's review is governed by the same standards. Graham v. Berryhill, 397 F.Supp.3d 541, 556 (S.D.N.Y. 2019). If the Court determines that the Appeals Council failed to fulfill its obligations under § 404.970(a)(5) and (b), "the proper course for the reviewing court is to remand for reconsideration in light of the new evidence." Graham, 397 F.Supp.3d at 557 (quoting Wilbon v. Colvin, 2016 WL 5402702, at *5 (W.D.N.Y. Sept. 28, 2016)); see also Anthony P.B. v. Comm'r of Soc. Sec., 2021 WL 288769, at *5 (W.D.N.Y. Jan. 28, 2021) ("If the AC fails to fulfill its obligations under [§ 404.970(b)], 'the proper course for the reviewing court is to remand for reconsideration in light of the new evidence.'") (quoting McIntire v. Astrue, 809 F.Supp.2d 13, 21 (D. Conn. 2010)).
The administrative record now before this Court includes three categories of evidence supplied by plaintiff after the ALJ's Decision: (1) records that, according to the Appeals Council, were duplicative of Exhibits 1F, 2F, and 3F, and thus already considered by the ALJ; (2) records that were not duplicative but which, according to the Appeals Council, did "not show a reasonable probability that [they] would change the outcome of the decision"; and (3) additional evidence, consisting of medical records dating from 2019, which according to the Appeals Council "does not relate to the period at issue" and therefore "does not affect the decision about whether [plaintiff was] disabled beginning on or before March 31, 2018." (R. 2.)
The Appeals Council was correct about the third category. The 19 pages of new medical records that plaintiff submitted for the first time on July 17, 2019 (R. 16-22, 28-39), together with the letter from Dr. Ameruso, dated August 28 and submitted on August 29, 2019 (R. 41-43), all concern plaintiff's symptoms in 2019 and say nothing about her condition or functional abilities on or before March 31, 2018. However, when discussing - and dismissing - the first category of evidence as "duplicative," the Appeals Council apparently failed to notice that the medical records that plaintiff resubmitted on July 17, 2019 included complete copies of lab reports, treatment notes, and other documents that the ALJ saw only in part. For example:
(i) The ALJ saw only three pages of plaintiffs December 1, 2018 letter (R. 374-76), but the entire 5-page letter was resubmitted (somewhat out of order) to the Appeals Council. (R. 116-22.) Among other things, that letter listed its intended attachments, including three MRI reports, of the plaintiffs cervical, lumbar, and thoracic spine. (R. 117.)
(ii) The ALJ saw a single MRI report, of plaintiffs cervical spine, which showed mild degenerative changes. (R. 380.) Plaintiff resubmitted all three MRI reports to the Appeals Council. (R. 130-32.) The lumbar spine MRI showed mild discogenic disease, "[s]evere loss of subcutaneous fat," and "[s]evere heterogenerous bone marrow signal which could be related to an infiltrative process[.]" (R. 130.) The thoracic spine MRI showed "[m]oderate degenerative disc disease with mild kyphosis." (R. 132.)
(iii) The ALJ saw (and noted as incomplete) two pages of Nurse Uriarte's treating notes. (R. 381-82.) Plaintiff resubmitted the complete, 6-page document to the Appeals Council, including the provider's "assessment and plan," noting that plaintiff had "multiple medical problems including anorexia nervosa." (R. 136.)
(iv) The ALJ saw (and noted as incomplete) fragments of two treating notes from Dr. Sackheim. (R. 378-79.) Plaintiff resubmitted complete copies of those notes to the Appeals Council, reflecting plaintiffs then-current "problem list," comprising:
"Total body pain," "Fibromyalgia," "Peripheral neuropathy," "Lumber radiculopathy," "Cervical radiculopathy," "PTSD," and "Anorexia." (R. 126, 129.)
(v) The ALJ saw a 1-page report of Dr. Bellante's eye examination, which showed that plaintiff had 20/20 vision with correction and "unspecified esotropia." (R. 391.) Plaintiff resubmitted both sides of that page to the Appeals Council, including (on the reverse) Dr. Bellante's hand-written note, elaborating that plaintiff had "esotropia, crossing of the eyes, that causes her to have poor depth perception and severe eye strain." (R. 153.)
In my view, these documents qualified for exhibition in accordance with 20 C.F.R. § 404.970(a)(5) and (b). They are clearly new, in that they were not before the ALJ, and are not so far removed in time from plaintiff's DLI as to render them immaterial to her condition as of that date. And while it is of course possible that none of them would have changed (or will change) the outcome of the proceeding, there is also a "reasonable probability" that these documents would have caused the ALJ to deem plaintiff's chronic pain, eating disorder/anorexia, degenerative disc disease and/or esotropia "severe," which in turn would have required her to proceed at least to step three, and likely to steps four and five of the analysis set forth in 20 C.F.R. § 404.1520(a)(4). Further, given that plaintiff twice attempted to submit these documents to the ALJ (once on December 1, 2018, and then again on April 25, 2019), only to discover later that the agency incompletely processed them the first time and either did not receive them or mislaid them the second time, she has shown "good cause," see 20 C.F.R. § 404.970(a)(5), for resubmitting them, after the issuance of the Decision, to the Appeals Council.
The same is true for the evidence in the second category, which the Appeals Council declined to exhibit solely because it "does not show a reasonable probability that it would change the outcome of the decision." (R. 2.) Here again, it is apparent that the Appeals Council overlooked some of the evidence before it. Most significantly, it did not discuss - or even mention - Dr. Chow's function-by-function RFC assessment (R. 86-91), which is dated May 22, 2018 and draws on Dr. Chow's treatment of plaintiff during the period prior to her DLI, and which plaintiff states that she initially submitted (or attempted to submit) on May 31, 2018, and resubmitted (or attempted to resubmit) on April 25, 2019. In that RFC assessment, Dr. Chow opined that due to her impairments, plaintiff could lift "less than 10 pounds," could stand and walk for "less than 2 hours in an 8-hour workday," would need to alternate sitting and standing, was limited in pushing, pulling, reaching, handling, fingering, and feeling, and had visual limitations due to strabismus esotropia as well as anxiety severe enough to interfere with her ability to speak. (Id.)
The Appeals Council also ignored plaintiff's detailed Function Report attachment (R. 100109), which she attempted to submit to the ALJ on May 31, 2018 (R. 100) and again on April 25, 2019. (R. 23.) In that document, plaintiff described a life significantly circumscribed by pain, weakness, and vision problems, making it difficult for her venture out of her apartment or to care for it, and herself, without assistance.
In this Court, the Commissioner acknowledges that the Appeals Council overlooked Dr. Chow's opinion and plaintiff's Function Report attachment, Def. Mem. at 18, thereby violating 20 C.F.R. § 404.970(b), but argues that the error was harmless because neither document "could have altered the outcome of the case." (Id.) The Commissioner points out, correctly, that plaintiff's own statements, no matter how detailed, "are not alone sufficient to establish her claim of disability," id. at 19 (citing 42 U.S.C. § 423(d)(5)(A)), and argues that Dr. Chow's opinion could not have been found "persuasive" under the standards set forth in 20 C.F.R. § 404.1520c(b) because it was based largely on plaintiff's "self-reported limitations" rather than on any underlying treatment notes, from Dr. Chow, "that could have substantiated these symptoms." (Id. at 18.)
However, as discussed above, plaintiff did submit more complete treatment notes from other providers, some of which are consistent with the "self-reported limitations" described in her Function Report attachment and endorsed by Dr. Chow. For example, while Dr. Chow "indicated only that Plaintiff required glasses," Def. Mem. at 19, Dr. Bellante, an optometrist, confirmed that plaintiff has "esotropia, crossing of the eyes, that causes her to have poor depth perception and severe eye strain." (R. 153.) And in notes dated December 4 and December 27, 2017 - prior to plaintiff's DLI - Dr. Chow wrote that plaintiff had "severe chronic pain from peripheral neuropathy," "difficulty with mobility related to her pain," and "a history of falls in the past and often needs assistance getting up." (R. 61-62.) Additionally, in 2016 and 2017, Dr. Chow referred plaintiff to various specialists for "chronic myalgia," myositis, paresthesias, anorexia, and De Quervain's tenosynovitis, and also prescribed splints for the De Quervain's. (R. 72-85.) It is thus not obvious to me that the ALJ would have found Dr. Chow's opinion unpersuasive, under § 404.1520c(b), if given the opportunity to assess it against the fuller record that plaintiff attempted to place before the ALJ.
The Appeals Council noted and listed these records in the second category, stating that they would not likely change the outcome of the decision. (R. 2.) However, since the Council did not review Dr. Chow's opinion or plaintiff's Function Report attachment, it did not have the opportunity to consider whether these records might have had more impact in conjunction with the opinion and the Function Report. See Def. Mem. at 18 (conceding that the Appeals Council "provided only a perfunctory conclusion" as to the probability that the new evidence from the relevant period "would change the outcome of the decision").
There is of course no guarantee that any of the records rejected by the Appeals Council (including Dr. Chow's opinion) would change the outcome of this action at the hearing level. The regulatory standard, however, is "reasonable probability," 20 C.F.R. § 404.970(a)(5), not certainty.
In my view, that standard is met here, in that if the ALJ had the opportunity to review all of the documents in the second and third categories (that is, the documents that plaintiff repeatedly attempted to place before her), it is reasonably probable that she would have found plaintiff's impairments severe at step two, in which case she would have been required to consider whether plaintiff met any relevant Listing at step three, and thereafter (assuming that the analysis did not end at step three), to formulate plaintiff's RFC and consider whether, given that RFC, she could perform her past relevant work or, in the alternative, could make an adjustment to other work. See 20 C.F.R. § 404.1520(a)(4).
Because I cannot conclude that the Appeals Council's failure to fulfill its obligations under 20 C.F.R. § 404.970(a)(5) and (b) was harmless, remand is required. See, e.g., Davis v. Saul, 2020 WL 2094096, at *13 (S.D.N.Y. May 1, 2020) (where Appeals Council provided only a "boilerplate" explanation of its decision "not to consider" opinion evidence from plaintiff's treating physician, remand was required "for the ALJ to consider Dr. Themistocle's records"); Anthony P.B., 2021 WL 288769, at *5 (Appeals Council's failure to "address the reports from Dr. Redhead" required remand); Becerril o/b/o JATv. Comm'r of Soc. Sec., 2019 WL 4593622, at *4 (S.D.N.Y. Sept. 23, 2019) (remanding to the ALJ, rather than to the Appeals Council, where the Council erred in failing to consider new evidence that related to the relevant period); Lugo v. Berryhill, 390 F.Supp.3d 453, 460 (S.D.N.Y. 2019) (remanding because the new evidence presented to the Appeals Council "satisfies the requirements for reconsideration" and "the Appeals Council failed to provide a sufficient basis for rejecting the new evidence"); Mendoza v. Berryhill, 287 F.Supp.3d 387, 399 (S.D.N.Y. 2017) (remanding for consideration of proper weight to be given to opinion evidence first submitted to the Appeals Council where the Council failed to consider that evidence "on the merits").
V. CONCLUSION
For the reasons set forth above, I recommend that plaintiff's motion (Dkt. 31) be GRANTED, that the Commissioner's motion (Dkt. 19) be DENIED, and that this action be remanded to the Commissioner for further proceedings consistent with this Report and Recommendation.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. George B. Daniels at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Daniels. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).