Opinion
6:20-CV-06303 EAW
2021-05-28
BARBARA W., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Andrew D. Spink, Legal Assistance of Western New York, Inc., Geneva, NY, for Plaintiff. Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, Nahid Sorooshyari, Kathryn Sara Pollack, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Andrew D. Spink, Legal Assistance of Western New York, Inc., Geneva, NY, for Plaintiff.
Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, Nahid Sorooshyari, Kathryn Sara Pollack, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Represented by counsel, Plaintiff Barbara W. ("Plaintiff") brings this action pursuant to Title II of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her application for disability insurance benefits ("DIB"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 14; Dkt. 17), and Plaintiff's reply (Dkt. 20). For the reasons discussed below, Plaintiff's motion (Dkt. 14) is granted in part, the Commissioner's motion (Dkt. 17) is denied, and the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.
BACKGROUND
Plaintiff protectively filed her application for DIB on September 22, 2016. (Dkt. 13 at 729, 810). In her application, Plaintiff alleged disability beginning November 23, 2012, due to the following conditions: diabetes ; neuropathy ; weakness; anxiety; depression; pinched nerves ; vertigo; and exhaustion. (Id. at 729, 797-98). Plaintiff's application was initially denied on November 30, 2016. (Id. at 729, 811-16). A video hearing was held before administrative law judge ("ALJ") John Loughlin on October 1, 2018. (Id. at 729, 750-96). Plaintiff appeared in Rochester, New York, and the ALJ presided over the hearing from Alexandria, Virginia. (Id. ). On February 4, 2019, the ALJ issued an unfavorable decision. (Id. at 729-43). Plaintiff requested Appeals Council review; her request was denied on March 12, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 6-8). This action followed.
When referencing the page number(s) of docket citations in this Decision and Order, the Court will cite to the CM/ECF-generated page numbers that appear in the upper righthand corner of each document.
LEGAL STANDARD
I. District Court Review
"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).
II. Disability Determination
An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.
At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 404.1520(e).
The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 404.1520(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).
DISCUSSION
I. The ALJ's Decision
In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2017. (Dkt. 13 at 731). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity from her alleged onset date of November 23, 2012 through her date last insured of December 31, 2017. (Id. ).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "type 2 diabetes with neuropathy, cervical spine stenosis, left ulnar nerve, left radial nerve impingement, left carpal tunnel syndrome, essential hypertension, hypotension, adjustment disorder with anxiety and depressed mood." (Id. at 731-32). The ALJ further found that Plaintiff's medically determinable impairments of pulmonary nodules, mitral valve disorder with murmur, irritable bowel syndrome, migraines, hyperlipidemia, pulmonary edema, and anemia were non-severe. (Id. at 732).
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 733). The ALJ particularly considered the criteria of Listings 1.04, 4.00, 11.14, 12.04, and 12.06 in reaching his conclusion. (Id. at 733-35).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff:
can frequently handle, finger and feel with both upper extremities and can frequently push and pull with the left upper extremity. The claimant can frequently push and pull or operate foot controls with both lower extremities. The claimant can frequently balance, can occasionally kneel, crouch, stoop, and crawl, can occasionally climb stairs and ramps, can never climb ladders, ropes and scaffolds, can occasionally be exposed to vibrations, but can never be exposed to unprotected heights and moving mechanical parts. The claimant can have occasional exposure to dust, noxious odors and fumes, and poor ventilation.
The claimant is able to understand and remember simple instructions, make simple work related decisions, carry-out simple instructions, and can occasionally deal with changes in a routine work setting.
(Id. at 735). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 741).
At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of routing clerk, cashier, and retail marker. (Id. at 742). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 743).
II. Remand of this Matter for Further Proceedings is Necessary
Plaintiff asks the Court to remand this matter to the Commissioner, arguing that: (1) the ALJ erred by failing to find that Plaintiff would be absent from work at least one day per month; (2) evidence pertaining to Plaintiff's new diagnosis of chronic kidney disease should have been considered by either the ALJ or the Appeals Council where Plaintiff's claim was denied due to lack of a unifying diagnosis; and (3) the ALJ erred in his consideration of the statement of Plaintiff's daughter. (Dkt. 14-1 at 22-31).
A. Plaintiff's New Diagnosis of Chronic Kidney Disease
Plaintiff contends that the Appeals Council did not properly address evidence generated after her administrative hearing. (Dkt. 14-1 at 24-29). The new evidence relates to a kidney biopsy that occurred on October 18, 2018, and medical records from thereafter indicating that Plaintiff suffers from chronic kidney disease. (Id. at 24-25). Plaintiff submitted this evidence to the Appeals Council, which addressed it as follows:
Additional Evidence
You submitted hospital records from the University of Rochester Medical Center, dated July 25, 2018 through October 15, 2019 (693 pages) and office treatment records from Richard Constantino, M.D., and Lura L. Deveau, ANP, dated September 11, 2018 through January 11, 2019 (16 pages). The Administrative Law Judge decided your case through December 31, 2017. This additional evidence does not relate to the period at issue. Therefore, it does not affect the decision about whether you were disabled beginning on or before December 31, 2017.
(Dkt. 13 at 7).
The new records reveal that on October 17, 2018, Catherine Moore, M.D., a nephrologist, noted a link between Plaintiff's kidney disease and hypertension. (See Dkt. 13 at 128-29 ("[i]t is possible that her renal disease is driving the hypertension")). Thereafter, in February 2019, Dr. Moore stated that she suspected Plaintiff's edema and hypertension to be "secondary" to renal disease. (See, e.g., id. at 241 ("Acute Kidney injury on [chronic kidney disease ] 3a: Recent progression noted, with a pattern more concerning for clinically active IGA nephropathy. I suspect that her edema and hypertension are secondary to her primary renal disease, and that her previous biopsy perhaps introduced a sampling error due to low yield.")). Plaintiff's kidney disease had progressed to stage five by July 2019 (id. at 490, 642 ("Progressive [chronic kidney disease ] now [chronic kidney disease ] 5")) and Plaintiff was preparing for dialysis and a renal transplant (id. at 490).
The medical record before the ALJ contained office notes from Plaintiff's initial August 15, 2018 visit with Dr. Moore. (Dkt. 13 at 2583). These records document Plaintiff's diagnosis for chronic kidney disease and indicated that Dr. Moore recommended "pursuing [a] renal biopsy in search for a unifying diagnosis." (Id. at 2587). However, the ALJ did not address this evidence.
"When reviewing a denial of DIB, the Appeals Council must consider additional evidence that a claimant submits after the ALJ's decision if it is new, material, and relates to the period on or before the ALJ's decision." Webster v. Colvin , 215 F. Supp. 3d 237, 242 (W.D.N.Y. 2016) (citing 20 C.F.R. § 404.970(b) ). As relevant to this case with regard to the evidence submitted to the Appeals Council, "medical evidence generated after an ALJ's decision cannot be deemed irrelevant solely because of timing." Carrera v. Colvin , No. 1:13-cv-1414 (GLS/ESH), 2015 WL 1126014, at *8 (N.D.N.Y. Mar. 12, 2015) (quoting Newbury v. Astrue, 321 Fed. App'x 16, 18 n.2 (2d Cir. 2009) ). Specifically, "[e]xaminations and testing conducted after the ALJ's decision is rendered may still be relevant if they clarify a pre-hearing disability and/or diagnoses." Id. (citation omitted).
Plaintiff contends that, although these records are from outside the period of disability, i.e. , after December 2017, they identify the cause of many of her symptoms existing during the period of disability, including fatigue, nausea and vomiting, numbness in her legs and feet, and swelling in her legs and toes, which had previously been unexplained and are typical symptoms of kidney disease (Dkt. 14-1 at 26-27), and the fact that Plaintiff's chronic kidney disease had progressed to stage five by mid-2019 suggests that she developed kidney disease before her date last insured (Dkt. 20 at 8-10). Plaintiff further contends that this evidence is material because the ALJ found that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were inconsistent with the evidence of record, including that there was "unclear etiology" for her symptoms. (Dkt. 14-1 at 29; see also Dkt. 13 at 739). In other words, Plaintiff contends that because these records explain the etiology for her symptoms, they undermine the ALJ's reason for finding that her complaints were not supported by the record.
Both Plaintiff's testimony and her daughter's statement support that Plaintiff suffered from various symptoms of her impairments, including swelling in her feet that made it difficult to walk, prolonged nausea and vomiting, dizziness caused by large swings in blood pressure, and extreme lethargy, which caused Plaintiff to experience up to 17 "bad days" per month and resulted in multiple emergency room stays. (See, e.g. , Dkt. 13 at 763-64, 768-73, 777; see also id. at 736). The ALJ discussed this evidence in the written determination, but found that Plaintiff's statements about the intensity, persistence, and limiting effects of her symptoms were inconsistent with the evidence of record, including because there did not appear to be a "clear etiology" for her symptoms. (See Dkt. 13 at 738; see also id. at 739 ("Dr. Barrett noted that there is unclear etiology for the claimant's joint pains, irritable bowel syndrome, hypotension, and lung findings," and she was "still unclear for the cause for the claimant's multitude of unusual symptoms including joint pains, blisters, numbness, pulmonary changes and labile hypertension."); id. ("there are many other instances where medical providers could not find clear etiology of the claimant's symptoms"); id. (discussing that Dr. Philip Vittore noted a "[c]omplicated/confusing presentation," including that he saw "objective weakness in the left upper extremity but ... was unimpressed in evaluation for radiculopathy on EMG."); id. at 740 ("As far as the statement of uncontrollable vomiting and diarrhea, I find this is not supported by medical evidence in the record.")). In other words, the written determination indicates that the lack of etiology for Plaintiff's symptoms—several of which, if substantiated, would seem to preclude Plaintiff from performing the activities required by the RFC—was a central consideration for the ALJ in finding that Plaintiff's complaints were not supported by the record. The new evidence offered by Plaintiff, which does offer an etiology for her symptoms, contradicts the ALJ's decision in this respect. See Lesterhuis v. Colvin , 805 F.3d 83, 88 (2d Cir. 2015) ("We agree that, on the facts of this case, the ALJ's decision was not supported by substantial evidence because the new evidence contradicted the ALJ's conclusion in important respects."); see also Pollard v. Halter , 377 F.3d 183, 193 (2d Cir. 2004) ("Although the new evidence consists of documents generated after the ALJ rendered his decision, this does not necessarily mean that it had no bearing on the Commissioner's evaluation of [the plaintiff's] claims. To the contrary, the evidence directly supports many of her earlier contentions regarding David's condition. It strongly suggests that, during the relevant time period, David's condition was far more serious than previously thought and that additional impairments existed when David was younger."); Bluman v. Colvin , No. 15-CV-627-FPG, 2016 WL 5871346, at *3-4 (W.D.N.Y. Oct. 7, 2016) (remanding for consideration of new treatment notes documenting that plaintiff had a surgical procedure which revealed that he had lung cancer, and plaintiff argued that the new evidence related to the relevant period because his lung cancer was directly related to his chronic and recurring respiratory papillomatosis and demonstrated the seriousness and severity of his condition).
The Commissioner argues that the ALJ did not deny Plaintiff's disability claim based on the lack of a unifying diagnosis. (Dkt. 17-1 at 27). It is well-settled that an ALJ is tasked with weighing all the evidence in the record in making a finding as to disability. See Matta v. Astrue , 508 F. App'x 53, 56 (2d Cir. 2013) (In deciding a disability claim, an ALJ is tasked with "weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole."). While the ALJ considered the evidence in the record in arriving at his final determination that Plaintiff was not disabled, the written determination also makes plain that the ALJ discredited Plaintiff's statements about her symptoms due to the lack of an objective diagnosis. The ALJ also cited to Plaintiff's alleged noncompliance in taking certain medications in making his credibility assessment, although he did not discuss that Plaintiff also reported that she experienced negative side effects from at least some of those medications. (Dkt. 13 at 738; see also id. at 767, 1620).
The Commissioner does not dispute that "evidence generated after an ALJ's decision cannot be deemed irrelevant solely based on timing," but argues that "the Appeals Council does not have to consider evidence that does not provide additional information about the claimant's functioning during the relevant time period." (Dkt. 17-1 at 28 (citation omitted)). The Commissioner further argues that the fact of the new diagnosis is irrelevant because "the mere presence of Plaintiff's kidney disease diagnosis or related symptoms would not alone have established disability," and the relevant inquiry is when she became unable to work because of the disease. (Dkt. 17-1 at 26). The Commissioner's argument is misplaced. The relevance of the new evidence is not that it "establishes" Plaintiff's disability. As explained above, there is evidence in the record from the relevant period of disability, such as Plaintiff's own testimony and her daughter's statement, supporting that Plaintiff would be unable to perform light work with limitations, as required by the RFC. Rather, the significance of the new diagnosis is that the ALJ rejected much of this evidence due to a lack of unifying diagnosis.
Both Plaintiff and the Commissioner cite Pazik v. Comm'r of Soc. Sec. , No. 1:19-CV-00943, 2020 WL 5511306 (W.D.N.Y. Sept. 14, 2020), where this Court held that the plaintiff's diagnosis of kidney disease, which occurred after his date last insured, was not relevant to the period of disability. The Court agrees with Plaintiff that Pazik is distinguishable because, in that case, the ALJ specifically considered the plaintiff's kidney disease diagnosis at step two of the sequential analysis, but noted that the plaintiff stated he had only been experiencing symptoms for three weeks prior to his diagnosis, a time period still after his date last insured. Id. at *4. Here, the ALJ did not consider Plaintiff's kidney disease diagnosis, and the record reveals that Plaintiff experienced symptoms linked to her kidney disease well before her date last insured. (See, e.g. , Dkt. 13 at 772 (Plaintiff testifying that she experienced vomiting and nausea "in the last couple of years" at the time of her administrative hearing)). Further, in Pazik , the plaintiff failed to point to evidence supporting that his symptoms were caused by his kidney disease, and in an attempt to tie his anemia to his kidney disease, relied on three pages of medical records from a short period between August 29, 2015 and September 3, 2015 wherein physicians at Kenmore Mercy Hospital speculated that the plaintiff's anemia could be secondary to his kidney disease. See Pazik , 2020 WL 5511306, at *4. Here, Plaintiff points to several medical records from Dr. Moore, a nephrologist, who followed Plaintiff's symptoms and kidney disease over an extended period of time, and who opined that many of Plaintiff's impairments were secondary to her kidney disease. (See, e.g. , Dkt. 13 at 2599).
The Commissioner also argues that treatment notes prior to Plaintiff's date last insured showed normal renal functioning. (Dkt. 17-1 at 23). While some medical records from this time period reveal normal renal function (see, e.g. , Dkt. 13 at 1194 (referencing ultrasound on May 3, 2017 which revealed "relatively normal kidneys")), other records suggest that further testing could be needed if Plaintiff's symptoms persisted (see, e.g., id. at 2494 (in May 2015, noting that "[f]indings are likely within normal limits," but further explaining that "if there is strong persistent clinical concern, dedicated renal artery CTA or MRA could be considered."); id. at 1251 (in May 2017, noting stable renal functioning but also referencing plan for further renal imaging )). It is unclear from the written determination whether the ALJ considered the relevance of this evidence and, in light of the new evidence submitted by Plaintiff, the Commissioner should have the opportunity to address it in considering whether it supports Plaintiff's complaints and in rendering a decision on her disability application.
In sum, the new evidence presented by Plaintiff at the very least "suggests that, during the relevant time period, [her] condition was more serious than previously thought." Carrera , 2015 WL 1126014, at *10. The explanation given by the Appeals Council—which consisted of a cursory statement that the evidence was outside the period of disability—does not address this issue. Given the information contained in the new records, whether limitations caused by Plaintiff's kidney disease prevented her from engaging in competitive employment prior to the date last insured is a question to be addressed by the Commissioner. See Webster , 215 F. Supp. 3d at 243 (explaining that "[a] reviewing court cannot assess whether the new evidence relates to the period on or before the ALJ's decision," and remanding case to the Commissioner for reconsideration in light of the new evidence); see also Poler v. Comm'r of Soc. Sec. , No. 18-CV-1298, 2020 WL 1861920, at *6 (W.D.N.Y. Apr. 14, 2020) (explaining that while new medical records may be irrelevant to the period of disability, "[i]t is equally possible ... that the new evidence clarifies a pre-hearing disability and suggests that [Plaintiff's] condition was more serious than previously thought during the relevant time period"). Accordingly, the case is remanded for further administrative proceedings.
B. Plaintiff's Remaining Arguments
As set forth above, Plaintiff has identified additional reasons why she contends the ALJ's decision was not supported by substantial evidence. However, because the Court has already determined, for the reason previously discussed, that remand of this matter for further administrative proceedings is necessary, the Court declines to reach these issues. See, e.g., Bell v. Colvin , No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y. Dec. 1, 2016) (declining to reach arguments "devoted to the question whether substantial evidence supports various determinations made by [the] ALJ" where the court had already determined remand was warranted); Morales v. Colvin , No. 13cv06844 (LGS) (DF), 2015 WL 13774790, at *23 (S.D.N.Y. Feb. 10, 2015) (the court need not reach additional arguments regarding the ALJ's factual determinations "given that the ALJ's analysis may change on these points upon remand"), adopted , 2015 WL 2137776 (S.D.N.Y. May 4, 2015).
CONCLUSION
For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (Dkt. 14) is granted to that extent that the matter is remanded for further proceedings, and the Commissioner's motion for judgment on the pleadings (Dkt. 17) is denied. The Clerk of Court is directed to enter judgment and close this case.
SO ORDERED.