Opinion
20-CV-05795 (AJN)(SN)
03-09-2022
RAYMOND VELEZ, Plaintiff, v. ANDREW SAUL, Defendant.
TO THE HONORABLE ALISON J. NATHAN, J:
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
Plaintiff Raymond Velez seeks judicial review of the final determination of the Commissioner of Social Security (the “Commissioner”) denying his application for Supplemental Security Income (“SSI”). 42 U.S.C. § 1383(c)(3). Velez moved, and the Commissioner cross-moved, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Because the decision of the administrative law judge (“ALJ”) is without legal error and is supported by substantial evidence, I recommend that Velez's motion for judgment on the pleadings be DENIED, and the Commissioner's cross-motion for judgment on the pleadings be GRANTED.
BACKGROUND
I. Factual Background
Velez was born on July 27, 1996. ECF No. 27, Administrative Record (“R.”) 79. At the time of the hearing, he was 22 years old and lived with his mother and brother. Id. As a child, he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and multiple learning disabilities and was placed in special education. Id. at 413. He completed high school at Greenburgh Academy, a private high school for students with special needs in Yonkers. Id. at 82, 417. He briefly worked in 2017 and 2018 but testified that he was forced to stop because of his worsening anxiety and depression. Id. at 84, 226-27. The Court further adopts the parties' recitation of Velez's medical and non-medical record evidence. See Plf. Br. at 3-11, Def. Br. at 5-10.
II. Administrative Proceedings
Velez applied for SSI benefits on October 14, 2015. R. 214. He identified ADHD as the medical condition limiting his ability to work. Id. at 239. After his application was denied he requested a hearing before an ALJ. Id. at 121-23. Velez appeared for a hearing before ALJ B. Hannan on March 4, 2019, and the ALJ issued an unfavorable decision on April 4, 2019. Id. at 21-39. In its decision, the ALJ found that Velez had not been under a disability within the meaning of the Act since October 14, 2015, and denied his SSI application. Id.
At the first step, the AJL noted that even if Velez's modest earnings in 2016, 2017, and 2018 rose to the level of substantial gainful activity, they likely would not constitute disqualifying substantial gainful activity given his assertion that the symptoms of his anxiety disorder forced him to stop work. Because the ALJ recommended denying the application on other grounds, she declined to decide the question definitively and concluded that Velez had not engaged in substantial gainful activity since October 14, 2015, the date of his application, pursuant to 20 C.F.R. § 416.971.
At the second step, the ALJ held that Velez suffered from severe impairments of depression, anxiety, and ADHD, and that these impairments significantly limited his ability to perform basic work activities as required by SSR 85-28. The ALJ considered and rejected evidence that Velez's asthma, obesity, and occasional marijuana use severely limited his ability to work. As relevant here, the ALJ asserted that his body mass index had been within the normal range since the date of his application and noted that his physicians did not attribute any limitation in functioning to his obesity.
At the third step, the ALJ concluded that the severity of Velez's impairments did not meet or medically equal the criteria of listings 12.02, 12.04, and 12.06. She determined that his limitations in each of the four areas of mental functioning were moderate, pointing out that both the consultative examiner and his treating physician considered his judgment to be fair, that he himself testified that he had no difficulty getting along with family, friends, or other authority figures and was able to perform his own personal care functions, that the consultative physician found that his concentration was only mildly impaired, and that he did not have a behavior intervention plan in school and was not a target for disciplinary action. Furthermore, his impairments were not “serious and persistent” because, while there was a medically documented history of the existence of the disorders over a period of at least two years, the record did not establish that Velez had received ongoing medical treatment or therapy in a highly structured setting and that he had minimal capacity to adapt to changes in his environment.
Listing 12.02 applies to neurocognitive disorders including dementia, progressive tumors, and neurological diseases like multiple sclerosis and Huntington disease. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00 (B)(1). To satisfy the listing, a plaintiff must show: “A. Medical documentation of a significant cognitive decline from a prior level of functioning in one or more of the cognitive areas: (1) Complex attention; (2) Executive function; (3) Learning and Memory; (4) Language; (5) Perceptual-motor; or (6) Social cognition; AND B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: (1) Understand, remember, or apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace, (4) Adapt or manage oneself; OR C. Your mental disorder in this listing category is ‘serious and persistent.'” 20 C.F.R. Pt. 404, subpt. P, app'x 1 §12.02.
Listing 12.04 applies to depressive, bipolar and related disorder, including major depressive disorder. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00 (B)(3). To satisfy the listing for depressive disorder, a plaintiff must provide medical documentation of five of the following symptoms: (1) depressed mood; (2) diminished interest in almost all activities; (3) appetite disturbance with change in weight; (4) sleep disturbance; (5) observable psychomotor agitation or retardation; (6) decreased energy; (7) feelings of guilt or worthlessness; (8) difficult concentrating or thinking; or (9) thoughts of death or suicide. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04. In addition, a plaintiff must show either “extreme limitation of one, or marked limitation of two, of the following areas of mental functioning; (1) Understand, remember, or apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace; (4) Adapt or manage oneself' or that their mental disorder is “serious and persistent.” Id.
Listing 12.06 applies to anxiety and obsessive-compulsive disorders, including generalized anxiety disorder. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00 (B)(5). To satisfy the listing for anxiety, a plaintiff must provide medical documentation of three of the following symptoms: (1) restlessness; (2) fatigue; (3) difficulty concentrating; (4) difficulty concentrating; (5) irritability; (6) muscle tension; or (7) sleep disturbance. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.06. In addition, a plaintiff must show either “extreme limitation of one, or marked limitation of two, of the following areas of mental functioning; (1) Understand, remember, or apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace; (4) Adapt or manage oneself” or that their mental disorder is “serious and persistent.” Id.
Before reaching step four, the ALJ made a finding regarding Velez's residual functional capacity based on the relevant medical and other evidence in the record. 20 C.F.R. § 416.920(e). The ALJ concluded that while the medical evidence of record established diagnoses of depression, anxiety and ADHD, Velez's descriptions of the intensity, persistence, and limiting effects of his symptoms were inconsistent with the evidence in the record. In reaching this determination, the ALJ considered Velez's treatment records from Harlem Hospital, Ryan Health, and Mt. Sinai, his educational records, and opinion evidence from his providers and Dr. Haruyo Fujiwaki, a consultative examiner. She gave partial weight to the medical opinion of the state agency psychological consultant who testified at the hearing, partial weight to the opinion statements of social worker Jill Apilado, reasonable weight to the statements of two of Velez's teachers, and little weight to the opinion statements of Dr. Jason Shimiaie, his treating physician at Mt. Sinai, a social worker from Velez's high school, social worker Melissa Eells, and Velez's mother, who provided a work history report. The ALJ gave greater, but not full or controlling, weight to the statements of Dr. Fukiwaki.
Based on her assessment of the medical evidence in the record, the ALJ determined that Velez has the residual functional capacity to perform a full range of work at all exertional levels, with certain non-exertional limitations. Velez could: perform simple routine and repetitive tasks but not at a production pace (assembly line work); make simple work-related decisions; perform work involving few changes to routine; and could have only occasional interaction with supervisors, occasional contact with coworkers with no tandem tasks or team type activities, and no contact with the public. R. 26-7.
The ALJ concluded at step four that Velez had no past relevant work. 20 C.F.R. § 416.965. At the final step, the ALJ concluded that Velez could perform work that exists in significant numbers in the national economy, including as a garment bagger, cleaner, and hand packager. 20 C.F.R. §§ 416.969, 416.969a.
The Appeals Council denied Velez's request for review, making the ALJ's decision final. R. 1-5.
III. Velez's Civil Case
Velez filed his Complaint on July 27, 2020. ECF No. 1. He requests that the Court set aside the decision and grant him SSI benefits or, alternatively, remand his case for further proceedings, along with awarding attorney's fees and costs. Id. at 5-6. The Commissioner answered by filing the administrative record, and the parties cross-moved for judgment on the pleadings. ECF Nos. 27, 30, & 34.
Velez argues that the ALJ failed: (1) to consider his diagnosis of schizophrenia and his obesity as severe impairments; (2) to apply controlling weight to his treating physicians' opinions and, as a result, failed to find that he met the listing criteria for schizophrenia (12.03), depressive disorder (12.04), and anxiety disorder (12.06); and (3) to evaluate his ADHD impairment under the correct listing. See ECF No. 31. The Commission counters that the ALJ's decision is free of legal error and supported by substantial evidence and should be affirmed. ECF No. 35, at 1.
LEGAL STANDARD
I. Standard of Review
In reviewing a decision of the Commissioner, a court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). An ALJ's determination may be set aside only if it is based upon legal error or it is not supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Balsamov. Chater, 142 F.3d 75, 79 (2d Cr. 1998)).
“Substantial evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). The Commissioner's findings as to any fact supported by substantial evidence are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995); see also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”). Therefore, if substantial evidence supports the ALJ's final decision, the Court must grant judgment in favor of the Commissioner, even if substantial evidence also supports the plaintiff's position. See Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (“The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.”) (emphasis in original) (citations and internal quotation marks omitted). Although deferential to an ALJ's findings, a disability determination must be reversed or remanded if it contains legal error or is not supported by “substantial evidence.” See Rosa, 168 F.3d at 77.
II. Definition of Disability
A claimant is disabled under the Act if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. § 1382c(a)(3)(D). A claimant will be found to be disabled only if his “impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . .” Id. § 1382c(a)(3)(B).
An ALJ must proceed through a five-step process to make a disability determination. See 20 C.F.R. § 416.920(a)(4). The steps are followed in order; if it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not progress to the next step. The Court of Appeals has described the process as follows:
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1....Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (quoting Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)).
A claimant bears the burden of proof at steps one, two, three, and four; the Commissioner bears the burden at step five. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (citation omitted).
The regulations provide additional guidance for evaluating mental impairments. 20 C.F.R. § 416.920a. Calling it a “complex and highly individualized process, ” the section focuses the ALJ's inquiry on determining how the impairment “interferes with [the claimant's] ability to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. § 416.920a(c)(1), (2). For mental disorders, a claimant must show in part that he has at least two of the so-called “paragraph B criteria” or the “paragraph C criteria.” The paragraph B criteria require at least two of the following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of decompensation. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04(B). The first three are rated on a “five-point scale”: none, mild, moderate, marked, and extreme. 20 C.F.R. § 416.920a(c)(4). A “marked” limitation signifies that the claimant's “functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited.” 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00(F)(2)(d). The paragraph C criteria requires: (1) a medically documented history of the existence of the disorder over a period of at least two years; (2) evidence of medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminishes the symptoms and signs of the claimant's mental disorder; or (3) a showing of marginal adjustment, i.e. that the claimant has minimal capacity to adapt to changes in his environment or to demands that are not already part of his daily life. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.04(B).
ANALYSIS
Velez argues that the ALJ committed legal errors in finding that he was not entitled to SSI benefits. He contends that the ALJ failed: (1) to discharge her duty to develop the record, resulting in her failure to consider his schizophrenia and his obesity as severe impairments; (2) to apply controlling weight to his treating physicians' opinions and, as a result, failed to find that he met the listing criteria for schizophrenia (12.03), depressive disorder (12.04), and anxiety disorder (12.06); and (3) to evaluate his ADHD impairment under the correct listing. See ECF No. 31. He also argues that the ALJ improperly relied on Global Assessment Functioning (GAF) scores to find that he was not disabled, and that the Appeals Council should have reviewed the additional evidence he submitted following the ALJ's decision because it was new, material, and likely to change the outcome. Id. The Commissioner counters that the ALJ's decision was supported by substantial evidence and should therefore be affirmed, and that the evidence submitted to the Appeals Council provided no basis to change the ALJ's decision. See ECF No. 35.
I. Legal Error
A. Treating Physician Rule
1. Legal Standard
The “treating physician rule” instructs the ALJ to give controlling weight to the opinions of a claimant's treating physician if the opinion is well-supported by medical findings and is not inconsistent with the other evidence in the record. 20 C.F.R. § 416.927(c)(2). Affording a treating physician's opinion controlling weight reflects the reasoned judgment that treating physicians are “most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.” Id. See also Petrie v. Astrue, 412 Fed.Appx. 401, 405 (2d Cir. 2011); Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam); Mejia v. Barnhart, 261 F.Supp.2d 142, 148 (E.D.N.Y. 2003) (“[A]s the report of a primary treatment provider, [the psychotherapist's] report should have been accorded more than ‘little' weight.” (citations omitted)). Although the treating physician rule does not apply to new social security claims, it continues to apply to claims filed before March 27, 2017. See 20 C.F.R. § 416.920c; 20 C.F.R. § 416.927. Licensed clinical social workers are not “acceptable medical sources” due controlling weight under the treating physician rule, but they are still “important” “other sources” to whom the ALJ should look to show the severity of a claimant's impairments or ability to work. See Diaz, 59 F.3d at 313.
Where mental health treatment is at issue, the treating physician rule takes on added importance. A mental health patient may have good days and bad days; he may respond to different stressors that are not always active. Thus, the longitudinal relationship between a mental health patient and his treating physician provides the physician with a rich and nuanced understanding of the patient's health that cannot be readily achieved by a single consultative examination. See Canales v. Comm'r of Soc. Sec., 698 F.Supp.2d 335, 342-43 (E.D.N.Y. 2010) (“Because mental disabilities are difficult to diagnose without subjective, in-person examination, the treating physician rule is particularly important in the context of mental health.”) (citing Richardson v. Astrue, No. 09-cv-1841 (SAS), 2009 WL 4793994, at *7 (S.D.N.Y. Dec. 14, 2009)).
The ALJ can discount a treating physician's opinion, however, if the ALJ believes that it “lacks support or is internally inconsistent.” Duncan v. Astrue, No. 09-cv-4462 (KAM), 2011 WL 1748549, at *20 (E.D.N.Y. May 6, 2011). “When other substantial evidence in the record conflicts with the treating physician's opinion, [] that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). If the ALJ decides that the treating physician's opinion is not entitled to controlling weight, she must decide how much weight it should be afforded, considering: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the evidence that supports the treating physician's report; (4) how consistent the treating physician's opinion is with the record as a whole; (5) the specialization of the physician in contrast to the condition being treated; and (6) any other significant factors. 20 C.F.R. § 416.927(c)(2) - (6); Estrella v. Berryhill, 925 F.3d 90, 95-6 (2d Cir. 2019).
When the ALJ discredits the opinion of a treating physician, the regulations direct her to “always give good reasons in [the] notice of determination or decision for the weight [given a] treating source's opinion.” 20 C.F.R. § 416.927(c)(2); Snell, 177 F.3d at 133. She need not recite every piece of evidence in relation to these factors, however, so long as “the evidence of record permits [the Court] to glean the rationale of an ALJ's decision.” Mongeur, 722 F.2d at 1040. See Marinez-Paulino v. Astrue, No. 11-cv-5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2012) (“It is not necessary that the ALJ recite each factor explicitly, only that the decision reflects application of the substance of the rule.”). Although an ALJ's failure to explicitly apply the factors is a procedural error and may be grounds for remand, if the Court determines upon “a searching review of the record” that “the substance of the treating physician rule was not traversed, ” affirmance is appropriate. Estrella, 925 F.3d at 96 (quoting Halloran, 362 F.3d at 323).
2. Analysis
Velez argues that the ALJ failed to accord the proper weight to his treating physicians, namely Dr. Shimiaie, his psychiatrist, and Melissa Eells and Jill Apilado, who are both licensed clinical social workers. He contends that their evaluations show that he meets the listings for schizophrenia, major depressive disorder, and anxiety disorder.
The ALJ considered the opinion evidence of Velez's treating physicians under the regulations governing cases filed before March 27, 2017. R. 33. The ALJ expressly identified the factors that are considered when evaluating an “acceptable medical source” as well as “other sources.” Id. The ALJ correctly noted that licensed social workers are not “acceptable medical sources” entitled to controlling weight.
The ALJ considered two opinion statements from Dr. Shimiaie from January 8, 2019; one confirming a diagnosis of schizophrenia spectrum and other psychotic disorders with symptoms of delusions or hallucinations; and a second addressing depressive, bipolar, and related disorders with depressed mood, diminished interests, sleep disturbance, decreased energy, and difficulty concentrating or thinking. In both forms, Dr. Shimiaie opined that Velez had no limitations to understanding, remembering, or applying information; mild limitations to concentration, persistence, and pace; moderate limitations to adapting or manage self; and marked limitations to interacting with others.
The ALJ found Dr. Shimiaie's opinion regarding Velez's capacity to adapt and manage himself (moderate) to be consistent with the evidence and given great weight. His opinions regarding Velez's limitations to understand, remember, and apply information (none) and to concentrate, persist, and pace (mild) were deemed to underestimate Velez's ability. The ALJ found Velez's functional ability in these areas to be moderate (that is, more severe), and therefore afforded the treating physician only “some weight.” But the ALJ rejected Dr. Shimiaie's opinion regarding Velez's capacity with respect to social interactions as “greatly overstate[d].” The ALJ reasoned that Dr. Shimiaie's treatment notes did not support this opinion, noting that Velez had no history of aggressive behavior or risk and improved social interactions after restarting his medications. The ALJ also mentioned that Dr. Shimiaie had only been Velez's treating physician for five months at the time of the evaluation, despite reporting symptoms for at least two years. Overall, she gave Dr. Shimiaie's opinion limited weight.
The treating physician's opinion is not entitled to controlling weight when it is contradicted by other substantial evidence in the record. Halloran, 362 F.3d at 32. The ALJ comprehensively evaluated the whole record in determining that Dr. Shimiaie's opinion was not supported by substantial evidence. First, the ALJ considered Dr. Shimiaie's own treatment records, which reflected that Velez's symptoms were improved with medication and treatment. Dr. Shimiaie did not implement a safety plan (finding him to be “low risk”) and noted a history of irritability but not aggressive behavior. His treatment notes reflect that Velez reported that he was more comfortable leaving the house and was focused on a job search. Velez shared that he socialized through multi-player online videogames. In October 2018, Velez reported that he was socializing with friends and walking the dog daily. Dr. Shimiaie continued to prescribe conservative treatment, including daily exercise, medical management, improved sleep habits, and therapy. Thus, the ALJ fairly concluded that Dr. Shimiaie's notes did not support a finding of extreme or marked impairment in Velez's interactions with others.
The ALJ also considered the opinion evidence of Velez's social workers, who are “other” treatment providers. Under the regulations in effect before March 27, 2017, licensed clinical social workers are not considered “acceptable medical source[s] ... entitled to controlling weight.” Martino v. Comm'r of Soc. Sec., 339 F.Supp.3d 118, 128 (W.D.N.Y. 2018). However, “the opinions of a licensed clinical social worker may provide highly relevant evidence bearing upon the severity of an individual's impairments and how it may affect an individual's ability to function, ” (Bonilla Mojica v. Berryhill, 397 F.Supp.3d 513, 540 (S.D.N.Y. 2019) (internal quotation and citations omitted)), and “they are still entitled to some weight, especially where there is a regular treatment relationship with the claimant.” Evans v. Comm'r of Soc. Sec., 110 F.Supp.3d 518, 536 (S.D.N.Y. 2015).
Melissa Eells opined that Velez had “marked” impairments in three of the areas of mental functioning and “extreme” limitations in interacting with others. The ALJ afforded this opinion little weight because it was based on Velez's subjective complaints, not supported by any objective evidence and inconsistent with Dr. Shimiaie's treatment notes. She also highlighted that Velez had been in treatment with Eells for just three months and attended only six appointments. Jill Apilado assessed mild limitation in understanding, remembering, and applying information; moderate limitation in the areas of concentration, persistence, or pace, and adapting or managing self; and marked limitation in interacting with others. The ALJ found the moderate limitations to be consistent with the record evidence and that opinion was afforded some reasonable weight. But Apilado's opinion of marked limitation was granted little weight because it reflected only Velez's self-report and not objective evidence.
Arguably, the ALJ erred in discounting some of the social workers' opinions on the grounds that they were based on Velez's subjective complaints, and so it is possible that their opinions should have received greater weight. See Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (“The fact that [a provider] also relied on [the claimant's] subjective complaints hardly undermines his opinion as to his functional limitations, as ‘[a] patient's report of complaints, or history, is an essential diagnostic tool.'”) (quoting Flanery v. Chater, 112 F.3d 346, 350 (8th Cir. 1997)); see also Stacey v. Comm'r of Soc. Sec. Admin., 799 Fed.Appx. 7, 9 (2d Cir. 2020) (reasoning that subjective complaints are particularly important in “cases involving mental health, which tend to be less susceptible to objective testing and assessment). But the ALJ appropriately considered the limited duration of the treating relationship, the absence of specialization, and the consistency of the opinion with the overall evidence in giving the social workers' opinions only partial weight. Compare Grega v. Saul, 816 Fed.Appx. 580, 583 (2d Cir. 2020) (rejecting argument that ALJ improperly gave limited weight to a licensed clinical social worker because she did not qualify as an acceptable medical source and “the ALJ articulated reasons for the weight accorded to their opinions”), with Canales, 698 F.Supp.2d at 344 (remanding where ALJ disregarded social worker's opinion “simply because it was the opinion of a social worker, not on account of its content or whether it conformed with the other evidence in the record”).
Other record evidence further contradicted Dr. Shimiaie's opinion. The consultative examiner Dr. Fujiwaki concluded that Velez had “moderate” limitations in relating adequately with others. R. 427. The state agency psychological consultant Dr. Kleinerman stated that Velez had “mild” difficulties in maintaining social functioning. Id. at 110; see Colbert v. Comm'r of Soc. Sec., 313 F.Supp.3d 562, 576-77 (S.D.N.Y. 2018) (collecting cases to support conclusion that ALJ did not err in giving greater weight to consultative physician where his opinion was supported by the underlying medical evidence). Similarly, treatment notes from his psychiatrists at Harlem Hospital from 2014 to 2016 describe him as calm and cooperative and noted that his ADHD and academic performance improved with the consistent use of medication, and his school records from 2015 and 2016 describe him as personable and respectful. See R. 398, 430- 31, 449, 457, 493, 513. Finally, Velez's teachers reported no more than moderate limitations, describing him as sweet and polite.
Thus, the ALJ properly concluded that Dr. Shimiaie's assessment of Velez's marked limitation to social interaction was inconsistent with other substantial evidence in the record. Accordingly, the ALJ did not err by denying Dr. Shimiaie's opinion controlling weight.
B. Duty to Develop the Record
The ALJ has an affirmative obligation to develop the record in a disability benefits case regardless of whether the claimant is represented by counsel. 42 U.S.C. § 423(d)(5)(B) (“In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.”); see also 20 C.F.R. § 416.912(b); Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000). “Where the ALJ fails to develop the record, remand is appropriate.” Evans, 110 F.Supp.3d at 537. But “where there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).
Velez asserts that the ALJ failed to fulfill her “heightened duty” to develop the record by not evaluating his diagnosis of schizophrenia and not considering his obesity as a severe impairment. This argument is misplaced. The alleged failure to consider a severe impairment at steps two and three of the disability determination is a separate line of inquiry; the Court considers these arguments in the discussion of whether the ALJ's decision was supported by substantial evidence. See, e.g., Fodora v. Astrue, No. 10-cv-1423 (TJM), 2012 WL 996768, at *2 (N.D.N.Y. Mar. 23, 2012); Cantos v. Comm'r of Soc. Sec., No. 19-cv-04269 (GBD)(SDA), 2020 WL 5371341, at *11 (S.D.N.Y. July 31, 2020), report and recommendation adopted 2020 WL 5369919 (S.D.N.Y. Sept. 8, 2020).
In any event, the ALJ discharged her duty to adequately develop the record. The record contains more than 400 pages of medical records from 2014 to 2019, covering the period before and after his disability onset date, including the twelve months before his application, as required by the regulations. 20 C.F.R. § 416.912(b)(1); see also Byrd v. Kijakazi, No. 20-cv-4464 (JPO)(SLC), 2021 WL 5828021, at *23 (S.D.N.Y. Nov. 12, 2021), report and recommendation adopted 2021 WL 5827636 (S.D.N.Y. Dec. 7, 2021); Harkins v. Colvin, No. 15-cv-5223 (NSR)(JCM), 2016 WL 8669981, at *15 (S.D.N.Y. Dec. 8, 2016), report and recommendation adopted 2017 WL 1239655 (S.D.N.Y. Mar. 31, 2017). Velez does not identify any inconsistencies or gaps in the record that render it incomplete. Rosa, 168 F.3d at 79 n.5; Collier v. Berryhill, No. 19-cv-00368 (SN), 2020 WL 3638515, at *7 (S.D.N.Y. July 6, 2020); Freund v. Berryhill, No. 17-cv-9967 (JPO), 2019 WL 1323992, at *9-10 (S.D.N.Y. Mar. 25, 2019). In fact, the ALJ held the record open for 30 days following the hearing to allow Velez to submit medical source statements and treatment notes. R. 76-7; Jordan v. Comm'r of Soc. Sec., 142 Fed.Appx. 542, 543 (2d Cir. 2005) (holding that the ALJ fulfilled his duty to develop the administrative record where he held the record open for 30 days to allow plaintiff's counsel to obtain additional medical records and advised him that a decision would be made on the existing record if they were not timely submitted).
I conclude that the ALJ adequately developed the record, and Velez is not entitled to a remand on this ground.
C. Failure to Evaluate Velez's ADHD under the Correct Listing
Courts in this District have held that the failure to analyze the claimant's impairments under the correct listing is a legal error and may be a basis for remand even where the ALJ's decision is supported by substantial evidence. Norman v. Astrue, 912 F.Supp.2d 33, 81 (S.D.N.Y. 2012); Rodriguez ex rel. V.R. v. Comm'r of Soc. Sec., No. 13-cv-02152 (ALC), 2014 WL 4792076, at *1 (S.D.N.Y. Sept. 25, 2014) (remanding where ALJ applied a listing that had been revised several months prior to the decision); Maldonado on behalf of N.L.M.B. v. Comm'r of Soc. Sec., No. 19-cv-08074 (ER)(SN), 2021 WL 1536652, at *8 (S.D.N.Y. Feb. 4, 2021), report and recommendation adopted 2021 WL 1158412 (S.D.N.Y. Mar. 26, 2021) (same). Reversal or remand is not, however, necessary where any error in the SSA's interpretation or administration of the law is harmless. See Ramsey v. Comm'r of Soc. Sec., 830 Fed.Appx. 37, 40 (2d Cir. 2020).
Velez argues that the ALJ erred in evaluating his ADHD impairment under listing 12.02, for Neurocognitive Disorders, rather than listing 12.11, for Neurodevelopmental Disorders. Federal regulations specify that neurocognitive disorders “are characterized by a clinically significant decline in cognitive functioning, ” and include such diseases as Alzheimer, multiple sclerosis, and progressive brain tumors. 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00 (B)(1). In contrast, neurodevelopmental disorders “are characterized by onset . . . during childhood or adolescence” with symptoms including “deficits in attention or impulse control.” 20 C.F.R. Pt. 404, subpt. P, app'x 1 § 12.00 (B)(9). It was unquestionably error to consider Velez's condition under the listing for neurocognitive disorder. The record documents his childhood history of neurodevelopmental disorders, including ADHD and other learning disabilities, his distractibility and difficulty sustaining attention, and his significant difficulties learning and using academic skills. See, e.g., R. 398-409, 412-16, 437-43. This error, however, was harmless because the ALJ considered the underlying criteria for neurodevelopmental orders and substantial evidence supports that finding.
In order to find a listing-level neurodevelopmental disorder, the ALJ must find that both paragraph A and B are satisfied. In order to find a listing-level neurocognitive disorder, the ALJ may find that both paragraph A and B are satisfied (or may rely on paragraphs A and C). See 20 C.F.R. Pt. 404, subpt. P, app'x 1. §§ 12.02, 12.11. The paragraph B criteria are the same for both listings. Thus, had the ALJ considered the paragraph B criteria under the correct 12.11 listing, she would have reached the same conclusion she did under the incorrect 12.02 listing. It can therefore be inferred that the ALJ “properly considered all evidence relevant to those areas.” Kohler v. Astrue, 546 F.3d 260, 269 (2d Cir. 2008). As a result, this case is distinguishable from cases where the application of the correct legal standard could lead to a different result, requiring remand. See Campos ex rel. Cruz v. Barnhart, No. 01-cv-10005 (SAS), 2003 WL 21243036, at *7 (S.D.N.Y. May 28, 2003) (holding that claimant was entitled to benefits under listing not considered by the ALJ). I therefore conclude that the ALJ's error in considering listing 12.02 was harmless error.
D. New Evidence
1. Legal Standard
Under 42 U.S.C. § 405(g), the Court may remand a case “upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g) (emphasis added); see also 20 C.F.R. § 416.1470(a)-(b); Perez, 77 F.3d at 44-46; Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988); Canales, 698 F.Supp.2d at 341. Because new evidence submitted to the Appeals Council is part of the administrative record for judicial review, however, a showing of good cause is not necessary where the evidence was presented to the Appeals Council, but the Appeals Council declined to consider it. See, e.g., Knight v. Astrue, No. 10-cv-5301 (BMC), 2011 WL 4073603, at *12 (E.D.N.Y. Sept. 13, 2011).
Evidence is new if it did not exist before the ALJ decision and it is not merely cumulative of evidence already in the record. Tirado, 842 F.2d at 597. Additional evidence must “relate[] to the period on or before the date of the [ALJ] hearing decision, ” 20 C.F.R. § 416.1470(a)(5), is probative, and there is “a reasonable possibility” that it would have influenced the ALJ's decision. Tirado, 842 F.2d at 597. Documents generated after the ALJ rendered a decision are not categorically barred so long as the documents are relevant to the time period before the ALJ's decision, for which benefits were denied. Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004); see also 20 C.F.R. § 416.330 (a disability claim remains in effect through the decision of the ALJ). This is because new evidence may “disclose the severity and continuity of impairments existing” before the ALJ's decision and “may identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations” previously. Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40, 44 (2d Cir. 1991) (internal quotations and citations omitted). New and material evidence will not warrant remand if it “does not add so much as to make the ALJ's decision contrary to the weight of the evidence.” Rutkowski v. Astrue, 368 Fed.Appx. 226, 229 (2d Cir. 2010); see also Perez, 77 F.3d at 46 (“When the Appeals Council denies review after considering new evidence, we simply review the entire administrative record, which includes the new evidence, and determine, as in every case, whether there is substantial evidence to support the decision of the Secretary.”).
2. Analysis
Velez claims that treatment notes from Dr. Shimiaie and a statement from Eells submitted to the Appeals Council constitute new and material evidence likely to change the outcome of the ALJ's decision. Both are dated June 10, 2019, two months after the ALJ's decision. R. 9, 12. Dr. Shimiaie reported that Velez was taking aripiprazole to address the symptoms of schizophrenia and trazodone for sleep, resulting in a partial reduction in paranoia and auditory hallucinations and an improved sleep cycle. Id. at 11. Although some paranoia and auditory hallucinations persisted, he was able to “more comfortably leave his apartment” and his hallucinations were “less distressing.” Id. Dr. Shimiaie also noted that “due to a combination of disorganization and paranoia” Velez had “missed approximately one third of his appointments, ” delaying his progress. Id. He concluded that “as [Velez] has responded partially to antipsychotics ... titration will continue until patient is able to tolerate leaving his apartment without paranoia or anxiety and is able to attend 100% of appointments without forgetting.” Id. at 12.
Eells reassessed Velez's areas of mental functioning, finding a “moderate” limitation in the areas of understanding, remembering or applying information, interacting with others, adapting or managing oneself. Id. at 8. She did not assess his ability to concentrate, persist, or maintain pace. Id. Although Eells noted that a “moderate level of social withdrawal persists” and that Velez reported “difficulty managing age-appropriate independent functioning, ” she also wrote that his condition was improving, including his “interpersonal relatedness, ” “range of affect, ” and “reality testing.” Id. at 8-9. She added that Velez “reports symptoms of paranoia have lessened (improved) since initiation of treatment in November 2018.” Id. at 9.
The Appeals Council declined to consider the additional evidence, stating that it did not relate to the period before the ALJ's decision. Id. at 2.
The additional evaluations did not exist at the time of the ALJ's hearing, and so “there is no question that the evidence is ‘new' and that ‘good cause' existed for [Velez's] failure to submit it to the ALJ.” Pollard, 377 F.3d at 193. Therefore, the question turns on whether the new evidence is material. Even though the statements were written two months after the ALJ's decision was issued, they arguably were relevant because they “provide[] evidence of [Velez's] condition during the period for which [he] sought benefits.” Suttles v. Colvin, 654 Fed.Appx. 44, 47 (2d Cir. 2016); see also Estrella on Behalf of D.R. v. Comm'r of Soc. Sec., No. 12-cv-6134 (NSR)(JCM), 2016 WL 11484444, at *8 (S.D.N.Y. Aug. 2, 2016), report and recommendation adopted 2016 WL 5920128 (S.D.N.Y. Oct. 7, 2016) (treatment record created four months after ALJ's decision indicated complainant had suffered from similar mental health conditions during the relevant period).
However, there is “no reasonable possibility that consideration of [the] report would have altered the ALJ's decision, because the evidence . . . was not materially different from that which was already before the ALJ and the vocational expert when they reached their conclusions.” Suttles, 654 Fed.Appx. at 47 . Although Dr. Shimiaie and Eells provide additional information about Velez's progress, both statements rely heavily on existing treatment records. Ayala v. Berryhill, No. 18-cv-124 (VB)(LMS), 2019 WL 1427398, at *16 (S.D.N.Y. Mar. 12, 2019), report and recommendation adopted 2019 WL 1417220 (S.D.N.Y. Mar. 29, 2019) (reasoning that additional evaluation was based in part on existing treatment records reviewed by the ALJ and hence there was no reasonable possibility that the ALJ would decide the case differently). Furthermore, Velez fails to specify which aspects of the new evaluations support his claim to SSI benefits: to the extent that the evaluations are different from the prior medical opinion evidence, they indicate that Velez's condition had not become more severe, and that his symptoms had improved. In particular, Eells - whose February evaluation found that Velez had “marked” impairments in three of the areas of mental functioning and “extreme” impairment in interacting with others - offered a more positive assessment, describing his impairments as “moderate” in three areas and declining to offer an opinion in the fourth. As such, the evaluations neither “disclose the severity and continuity of impairments existing” nor “identify additional impairments which could reasonably be presumed to have been present.” Lisa, 940 F.2d at 44; see also Mendoza v. Berryhill, 287 F.Supp.3d 387, 398-99 (S.D.N.Y. 2017) (remanding where report found more severe restrictions than other medical opinions considered by the ALJ); Crowley v. Colvin, No. 13-cv-1723 (AJN)(RLE), 2014 WL 4631888, at *5 (S.D.N.Y. Sept. 15, 2014) (remanding where new evidence corroborated physician's statements regarding severity of psychiatric improvements, which could affect the ALJ's analysis under the treating physician rule); Pollard, 377 F.3d at 194 (new evidence suggested that claimant had extreme limitations in her ability to interact and relate to other people and a marked limitation in another criteria).
For these reasons, I do not recommend that Velez's claim be remanded to consider the new evidence.
II. Substantial Evidence
Velez argues that the ALJ erred by finding that his obesity was not a severe impairment and failed to evaluate his diagnosis of schizophrenia as a severe impairment and contends that he met the criteria for listings 12.03, 12.04, and 12.06. He adds that the ALJ improperly relied on his Global Assessment Functioning (“GAF”) scores in finding that he was not disabled. The Commissioner counters that substantial evidence supports the Commissioner's determination that Velez did not have a disability, his obesity was not a severe impairment, and the ALJ properly evaluated his impairments and concluded that they were not of listing-level severity.
As a threshold matter, the ALJ did not err in determining that Velez's obesity was not a severe impairment. Even if the claimant did not identify obesity as an impairment, “[i]f evidence of obesity exists in the record, at Step 2 of the five-step analysis the ALJ must determine if obesity is a severe impairment.” Sotack v. Astrue, No. 07-cv-0382 (MAT), 2009 WL 3734869, at *4 (W.D.N.Y. Nov. 4, 2009). In cases where obesity “‘significantly limits an individual's physical or mental ability to do basic work activities,' either in combination with other impairments or by itself, the ALJ must find the obesity to be a ‘severe' impairment.'” Id. (quoting Social Security Ruling 02-1p). But “an ALJ's failure to explicitly address a claimant's obesity does not necessarily warrant remand where the claimant's treating or examining sources did not consider it a significant factor limiting his or her ability to perform work related activities.” Negron v. Saul, No. 19-cv-07547 (KMK)(JCM), 2021 WL 465768, at *16 (S.D.N.Y. Feb. 8, 2021), report and recommendation adopted 2021 WL 1254426 (Apr. 5, 2021).
The ALJ properly considered the evidence of obesity in the record at step two. Although she incorrectly stated that his body mass index had been in the normal range within the existing time period, her conclusion that his physicians did not attribute any limitation in functioning to it is an accurate reflection of the record. See R. 699-700, 703-04, 721-25, 726-30, 732-36; cf. Sotack, 2009 WL 3734869, at *5 (citing medical opinion that Plaintiff's obesity, in combination with her other impairments, would limit her ability to sit continuously and lift and carry weight and required frequent rest). Velez does not point to any medical opinion or other evidence to the contrary. Although the ALJ did not explicitly incorporate the evidence of obesity into her RFC determination, she did “implicitly factored [Velez's] obesity into [her] RFC determination by relying on medical reports that repeatedly noted [his] obesity and provided an overall assessment of [his] work-related limitations.” Drake v. Astrue, 443 Fed.Appx. 653, 657 (2d Cir. 2011).
Because there is no evidence that Velez's obesity significantly limited his physical or mental ability to do basic work activities, the ALJ's determination is supported by substantial evidence. See Tracy v. Astrue, No. 09-cv-953S (WMS), 2011 WL 3273146, at *5-7 (W.D.N.Y. Jul. 29, 2011).
Although the ALJ did not explicitly consider schizophrenia at step two, she extensively discussed Dr. Shimiaie's diagnosis, treatment notes, and medical opinion in relation to her RFC determination. The Court of Appeals has held that where the ALJ identifies other severe impairments at step two and specifically considers the omitted impairments in the subsequent steps, any error is harmless. Reices-Colon v. Astrue, 523 Fed.Appx. 796, 798 (2d Cir. 2013).
Moreover, although the ALJ did not consider listing 12.03 for schizophrenia spectrum and other psychotic disorders, the ALJ did consider listing 12.02 (for neurocognitive disorders), 12.04 (for depressive, bipolar and related disorders), and 12.06 (for anxiety and obsessivecompulsive disorders). Listings 12.03, 12.04, and 12.06 have the same requirements as 12.03. Each requires a finding either of paragraph A and B, or paragraphs A and C. See 20 C.F.R. Pt. 404, subpt. P, app'x 1. §§ 12.00(A)(2). Thus, for the same reason that the ALJ's error in considering listing 12.02 instead of listing 12.11 was harmless, the ALJ's error in failing to consider listing 12.03 also does not support a remand. Substantial evidence supports the ALJ's finding with respect to the paragraph B and paragraph C criteria.
The Commissioner correctly argues that the ALJ's determination that Velez does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listings is supported by substantial evidence. The ALJ relied on Velez's testimony, Dr. Fujiwaki's consultative evaluation, and Dr. Shimiaie's medical opinion in finding a moderate limitation in each of the four areas of mental functioning in paragraph B. She noted that both Dr. Fujiwaki and Dr. Shimiaie found he had fair judgment despite some mild impairments in memory, Dr. Fujiwaki noted that he could count and perform simple calculations, and Dr. Shimiaie found him to be cooperative. Velez testified that he had no difficulties with family, friends, or people in positions of authority, and was able to pay bills, count change, and handle a savings account. The ALJ added that he did not have a behavior management plan while enrolled in school. The evidence cited by the ALJ is consistent with his treating records from Harlem Hospital and his educational records. Notably, only Eells found that Velez had a marked limitation in two areas of mental functioning or an extreme limitation in one, and the ALJ properly afforded little weight to her opinion.
The ALJ also found that the paragraph C criteria were not satisfied. Paragraph C(1) requires evidence that the claimant relies “on an ongoing basis, upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) to diminish the symptoms and signs of your mental disorder.” 20 C.F.R. Pt. 404, subpt. P, app'x 1. § 12.00(G)(2)(b). Arguably it was error to find paragraph C(1) absent given the sustained record of an ADHD diagnosis and mental health treatment since 2014. But paragraph C(2) requires a finding of “marginal adjustment.” “Marginal adjustment” means that a claimant's adaptation to the requirements of daily life is “fragile, ” and that changes or increased demands lead to exacerbation of symptoms and deterioration in your functioning. 20 C.F.R. Pt. 404, subpt. P, app'x 1. § 12.00(G)(2)(c). Although the ALJ's assessment of this categories was passing, substantial evidence supports a finding that Velez has not experienced “marginal adjustment” and rather has been improving in his functioning based on therapy and medical management.
Additionally, the ALJ's RFC determination was supported by substantial evidence. The ALJ carefully summarized all of Velez's medical and educational records from the relevant period, noting that “[a] longitudinal review of the claimant's treatment history demonstrates generally conservative treatment that is simply not consistent with the degree of symptoms and limitations alleged.” Both his Harlem Hospital records and Dr. Shimiaie's treating notes indicate that his symptoms are generally responsive to medication. Curley v. Comm'r of Soc. Sec. Admin., 808 Fed.Appx. 41, 44 (2d Cir. 2020) (holding that ALJ's residual functional capacity was supported by medical evidence “including evidence that [claimant's] symptoms were responsive to medication and that he had received only conservative treatment”). Although the ALJ noted the GAF scores recorded in his Harlem Hospital records, she did not explicitly rely on them as support for her RFC determination. See Camille v. Colvin, 104 F.Supp.3d 329, 342 (W.D.N.Y. 2015). The ALJ also carefully weighed the medical opinion evidence and found that Velez's claims of additional limitations were not consistent with the evidence.
Accordingly, the ALJ's decision was supported by substantial evidence, and so Velez is not entitled to remand.
CONCLUSION
I recommend that Velez's motion for judgment on the pleadings be DENIED, and the Commissioner's cross-motion for judgment on the pleadings be GRANTED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D), (E), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Alison J. Nathan at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Nathan. The failure to file these timely objections will result in a waiver of those objections for the purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).