Vazquez v. Commissioner of Social Security

• Court: District Court, N.D. New York
• Decided: March 17, 2020
• Docket: 6:18-cv-01350
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________ JONATHAN V., Plaintiff, v. 6:18-CV-1350 (TWD) COMM’R OF SOC. SEC., Defendant. ____________________________________ APPEARANCES: OF COUNSEL: JONATHAN V. Plaintiff, Pro Se U.S. SOCIAL SECURITY ADMIN. DANIEL STICE TARABELLI, ESQ OFFICE OF THE GEN. COUNSEL Counsel for Defendant THÉRÈSE WILEY DANCKS, United States Magistrate Judge DECISION AND ORDER Currently before the Court, in this Social Security action filed by Jonathan V. (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are Plaintiff’s motion for judgment on the pleadings and Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 14 and 18.) For the reasons set forth below, Plaintiff’s motion for judgment on the pleadings is granted and Defendant’s motion for judgment on the pleadings is denied. I. RELEVANT BACKGROUND A. Procedural History On September 4, 2015, Plaintiff applied for child’s insurance benefits and Supplemental Security Income alleging disability beginning August 1, 2009, due to back pain from herniated discs, scoliosis and arthritis, bipolar disorder, depression, anger, attention deficit hyperactivity disorder, and effects of breaks in the left forearm (radius and ulna). (T. 106, 117, 125, 133-35, 139, 141, 216-29.1) Plaintiff was born in 1989 and reported completing the twelfth grade. He has previous work as a material handler. (T. 218, 220, 276.) Plaintiff’s applications2 were initially denied on February 2, 2016, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). (T. 106-35, 158-71.) He appeared at an administrative hearing before ALJ David S. Pang on November 15, 2017. (T. 92- 105.) Plaintiff was represented by Kimberly MacDougall, a non-attorney representative. Id. On

December 28, 2017, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. (T. 136-57.) On September 13, 2018, the Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the Commissioner. (T. 1-6.) B. The ALJ’s Decision The ALJ found Plaintiff had not attained the age of 22 as of August 1, 2009, the alleged onset date. (T. 141.) The ALJ noted Plaintiff had worked after the alleged disability onset date but the work did not rise to the level of substantial gainful activity. (Id.) He found Plaintiff’s lumbar disc disorder with herniation and degenerative changes, status post ulnar fracture, bipolar disorder, and social anxiety disorder are severe impairments. (T. 142.) He determined Plaintiff

does not have an impairment or combination of impairments that meets or medically equals one

1 The Administrative Transcript is found at Dkt. No. 10. Citations to the Administrative Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather than the page numbers assigned by the Court’s CM/ECF electronic filing system. 2 As Defendant points out, Plaintiff based his original child’s insurance benefits application on his mother’s social security record and filed a child’s insurance benefits application on his father’s record the following month. (Dkt. No. 18 at 2, n.4; T. 133, 135, 249.) 2 of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1. (T. 142-43.) The ALJ found Plaintiff has the residual functional capacity (“RFC”) to perform light work with additional limitations. (T. 144.) Specifically, the ALJ found Plaintiff: is able to lift up to 20 pounds at a time, frequently lift or carry objects weighing up to 10 pounds, and stand, walk, and sit for approximately six hours each in an eight-hour workday. [He] can push and pull the same amount as he can lift and carry. [He] can occasionally climb ramps and stairs and he can never climb ladders, ropes or scaffolds. He can occasionally stoop, kneel, crouch and crawl. [He] can tolerate occasional exposure to concentrated dust, fumes and gases. He is limited to performing simple, routine and repetitive tasks and he can have occasional interaction with supervisors, coworkers and the public. (T. 144.) The ALJ found Plaintiff has been unable to perform any past relevant work at all times relevant to the decision. (T. 150.) The ALJ determined he can perform other jobs existing in significant numbers in the national economy. (T. 150-151.) Therefore, the ALJ concluded Plaintiff is not disabled. (T. 151-52.) C. The Parties’ Briefings on Their Cross-Motions Plaintiff, appearing pro se, argues the ALJ erred because he disregarded the opinions from Plaintiff’s treating physicians and gave more weight to the opinions of the consultative examiners. (Dkt. No. 14 at 4-5, 19, 39-40, 64-65.) Plaintiff maintains he is disabled by his physical and mental conditions. (Id. at 5-14, 20-35, 41-63, 66-74.) Defendant argues substantial evidence supports the ALJ’s assessment of Plaintiff’s RFC and the Step Five determination. (Dkt. No. 18 at 3-14.) In so doing, Defendant maintains the ALJ properly considered the opinions of treating providers Nathaniel Gould, M.D., and Steven Schaeffer, M.D., and consultative examiners Brian Cole, M.D., and Cheryl Loomis, Ph.D. (Id. at 5-13.) 3 II. RELEVANT LEGAL STANDARD A. Standard of Review A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence

standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner’s conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). “To determine on appeal whether the ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner’s finding must be sustained “even where substantial evidence may support the plaintiff’s position and despite that the court’s independent analysis of 4 the evidence may differ from the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner’s determination considerable deference, and may not substitute “its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984). B. Standard to Determine Disability The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920.

The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). Under that five-step sequential evaluation process, the decision-maker determines: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant’s residual functional capacity, age, education, and work experience. McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of working. Id. 5 III. REMAND IS REQUIRED BECAUSE IT IS UNCLEAR WHETHER EVIDENCE WAS RECEIVED AND/OR CONSIDERED BY THE ALJ AND/OR THE APPEALS COUNCIL A. Applicable Law “Once evidence is added to the record, the Appeals Council must then consider the entire record, including the new evidence, and review a case if the ‘administrative law judge’s action, findings, or conclusion is contrary to the weight of the evidence currently of record.’” Lesterhuis v. Colvin, 805 F.3d 83, 86 (2d Cir. 2015) (quoting 20 C.F.R. § 404.970(b)). “The Appeals Council is obligated to consider ‘new and material evidence.’” Stratton v. Colvin, 51 F. Supp. 3d 212, 218 (N.D.N.Y. 2014) (citing 20 C.F.R. § 404.970(b)). “New evidence is ‘material’ if it is: ‘(1) relevant to the claimant’s condition during the time period for which benefits were denied and (2) probative.’” Stratton, 51 F. Supp. 3d at 218 (quoting Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004)). “‘The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the [Commissioner] to

decide claimant’s application differently.’” Id. (quoting Pollard, 377 F.3d at 193) (alteration in original). In December 2016, the Social Security Administration (“SSA”) adopted the requirement that a claimant must submit or inform SSA about written evidence at least five business days before the date of his or her scheduled hearing. 20 C.F.R. § 416.1435(a); Social Security Ruling (“SSR”) 17-4p, 2017 WL 4736894, at *2 (SSA Oct. 4, 2017). “If a party fails to comply with this requirement to submit all written evidence at least five days before the hearing, ‘the administrative law judge may decline to consider or obtain the evidence’ unless” one of the exceptions in 20 C.F.R. § 416.1435(a)-(b) applies. Shari Lee Z. v. Saul, 19-CV-0265 (GTS), 19- CV-0268, 2019 WL 6840134, at *6 (N.D.N.Y. Dec. 16, 2019). The five-day rule was effective

at the time of the ALJ’s December 2017 decision here. 6 B. Analysis The certified administrative record contains office treatment records from Bassett Healthcare dated January 2012 to September 2014. (T. 61-91.) Based on the time stamps at the top of each page, it appears this evidence was obtained (and/or submitted) by Ms. MacDougall, Plaintiff’s non-attorney representative at the administrative level, on November 27, 2017, prior to the ALJ’s December 28, 2017, decision. (T. 1-6, 308.) A letter to ALJ Pang dated November 8, 2017, from Ms. MacDougall indicates she requested records from orthopedist Joseph Dutkowsky, M.D., on October 20, 2017 and received records on November 8, 2017, and also

submitted them that day. (T. 300-01.) Ms. MacDougall’s letter also indicates records were missing pertaining to a second surgery and continued treatment of Plaintiff’s left ulnar fracture, which she noted limited his left hand function. (T. 300.) It appears the records Ms. MacDougall submitted on November 8, 2017, are at Exhibits 17F and 18F based on the time stamp on the top of each page. (T. 511-20.) The ALJ’s December 2017 decision does not reflect consideration of any additional evidence regarding Plaintiff’s forearm surgery and it does not appear any additional records from Dr. Dutkowsky were added to his exhibit list following the administrative hearing on November 15, 2017. (T. 92-105, 136-57.) At the hearing, Ms. MacDougall noted Plaintiff had surgery to remove the hardware in his forearm, but additional evidence or missing records were not discussed. (T. 94-95.) The

ALJ’s decision indicates Plaintiff submitted or informed him about all written evidence at least five business days before the date of Plaintiff’s scheduled hearing. (T. 139.) Therefore, it appears the evidence at T. 61-91 may have been submitted to the ALJ following Plaintiff’s November 15, 2017, hearing but was not otherwise discussed or exhibited.

7 Defendant cites to the additional evidence in his brief and notes that Plaintiff attached a large amount of evidence to his brief, arguing the evidence in Plaintiff’s brief is not new because it is in the administrative record already. (Dkt. No. 18 at 4, n.7, 6.) That much is true, Plaintiff does include and cite to some pages from the evidence at T. 61-91 in his brief. (Dkt. No. 14 at 6, 20-25, 74.) However, the Court’s review indicates these records were not considered by the ALJ and the ALJ did not address any violations of the five-day rule or applicable exceptions. (T. 139.) Because the evidence was not addressed or exhibited by either the ALJ or the Appeals Council, it remains unclear if this additional evidence was ever properly considered by the

Agency. (T. 1-6, 136-57.) Ms. MacDougall also did not address this evidence in her June 12, 2018, letter brief to the Appeals Council. (T. 1-6, 306-07.) “It is the function of the Social Security Administration—not the federal district court—to ‘weigh the conflicting evidence in the record’ and resolve such conflicts.” Blisko v. Comm’r of Soc. Sec., 378 F. Supp. 3d 140, 144-45 (E.D.N.Y. May 7, 2019) (quoting Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); citing Cage v. Comm’r v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012)). Here, it is not clear the additional evidence was ever weighed at all and that should not be undertaken by this Court in the first instance. Therefore, although the Court does not reach a finding on the materiality of this evidence, the Court finds remand is required here because such evidence directly contradicts portions of the

ALJ’s analysis. (T. 145.) For example, the ALJ stated in his decision that there was no evidence that removal of the hardware in Plaintiff’s forearm took place after an appointment with Dr. Dutkowsky in September 2011. 3 (T. 145.) The additional evidence indicates that, in January 2012, Plaintiff was status-post removal of hardware of both the left radius and ulna performed by

3 The ALJ’s summary of the medical evidence indicates Plaintiff’s last appointment in 2011 was in October. (T. 145.) However, the treatment note cited by the ALJ from Dr. Dutkowsky at Exhibit 17F is dated September 28, 2011. (T. 516.) 8 Dr. Dutkowsky in November 2011; however, the evidence at T. 61-91 does not contain actual operative records from that procedure. (T. 61.) The ALJ also stated that after the September 2011 appointment with Dr. Dutkwosky, “[t]he next medical evidence is from over three years later.” (T. 145.) The ALJ’s analysis therefore implies there was a gap in Plaintiff’s treatment between September 2011 and December 2014, whereas the additional evidence not exhibited or addressed by the ALJ or the Appeals Council indicates Plaintiff was seen by treatment providers in January, May, August, and September 2012, and then again in June 2014 with additional testing and scans of the lumbar spine performed in 2014. (T. 61-91, 145, 355-66, 516.)

To be sure, it is possible the Appeals Council could find this additional evidence is insufficient to trigger review of the ALJ’s decision. However, it is unclear whether this evidence was ever received or properly considered by the Agency and this Court therefore is unable to determine whether the final decision of the Commissioner is supported by substantial evidence. Therefore, this mater is remanded so the Commissioner can clarify consideration of the evidence at T. 61-91. Because remand is required, and in light of the ALJ’s indication that there was a gap in treatment between September 2011 and December 2014, the Court declines to reach findings on issues related to the ALJ’s RFC and Step Five determinations. (T. 144-51.) ACCORDINGLY, it is ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 14) is

GRANTED; and it is further ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 18) is DENIED; and it is further ORDERED that the decision of the Commissioner is REVERSED and this case REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for a proper explanation of the 9 consideration of the additional evidence and any other further proceedings, consistent with this Decision and Order; and it is further ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff, along with a copy of the unpublished decisions cited herein in accordance with the Second Circuit’s decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Dated: March 17, 2020 Tien, bday Xf Syracuse, New York Therese Wiley Dancks Lnited States Magistrate Judve

SSR 17-4P (S.S.A.), 2017 WL 4736894 Social Security Administration

[Docket No. SSA-2017-0048] SOCIAL SECURITY RULING, SSR 17-4P; TITLES II AND XVI: RESPONSIBILITY FOR DEVELOPING WRITTEN EVIDENCE SSR 17-4P October 4, 2017 NOTICES *1 AGENCY: Social Security Administration. ACTION: Notice of Social Security Ruling (SSR).

SUMMARY: We are providing notice of SSR 17-4p. This SSR clarifies our responsibilities and the responsibilities of a claimant and a claimant's representative to develop evidence and other information in disability and blindness claims. FOR FURTHER INFORMATION CONTACT: Patrick McGuire, Office of Appellate Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 605-7100. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http:// www.socialsecurity.gov. SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are doing so in accordance with 20 CFR 402.35(b)(1). Through SSRs, we make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans' benefits programs. We may base SSRs on determinations or decisions made at all levels of administrative adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, or other interpretations of the law and regulations. Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1). until we publish a new SSR that replaces or modifies it. (Catalog of Federal Domestic Assistance, Programs Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006—Supplemental Security Income.) Nancy A. Berryhill, Acting Commissioner of Social Security.

POLICY INTERPRETATION RULING

SSR 17-4p: Titles II and XVI: Responsibility for Developing Written Evidence

Purpose This Ruling clarifies our responsibilities and those of the claimant and the claimant's representative to develop evidence and other information in disability and blindness claims under titles II and XVI of the Social Security Act (Act). This Ruling applies at all levels of our administrative review process, as described below.

Citations (Authority) Sections 206(a), 223(d), and 1614(a) of the Social Security Act, as amended; 20 CFR 404.935, 404.970, 404.1512, 404.1513, 404.1593, 404.1594, 404.1614, 404.1740, 404.1745, 416.912, 416.913, 416.993, 416.994, 416.1014, 416.1435, 416.1470, 416.1540, and 416.1545.

Introduction We need complete evidentiary records to make accurate, consistent disability determinations and decisions at each level of our administrative review process. Although we take a role in developing the evidentiary record in disability claims, claimants and their appointed representatives have the primary responsibility under the Act to provide evidence in support of their disability or blindness claims. Consequently, we expect claimants and their representatives to make good faith efforts to ensure that we receive complete evidence. *2 Under the Act, we cannot find that an individual is disabled “unless [he or she] furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require.”1 This statutory provision places primary responsibility for the development of evidence regarding his or her disability or blindness claim, our regulations require a claimant to submit or inform us about all evidence known to him or her that relates to whether or not he or she is disabled or blind.2 At the hearings level, a claimant generally must submit or inform us about written evidence at least 5 business days before the date of his or her scheduled hearing.3 We adopted this 5-day requirement in December 2016 and implemented it in May 2017, to address unprecedented workload challenges.4 As we explained in the preamble to our notice of proposed rulemaking, ““[w]e cannot afford to continue postponing hearing proceedings because the record is not complete at the time of the hearing.”5 A representative's duty to submit evidence is derivative of the claimant's;6 however, representatives must also follow our rules of conduct and standards of responsibility for representatives.7 Those rules impose an affirmative duty on a representative to act with reasonable promptness to help obtain the information or evidence that the claimant must submit and forward the information or evidence to us as soon as practicable.8 A representative also has an affirmative duty to assist a claimant in complying, as soon as practicable, with our requests for information or evidence.9 This Ruling explains the requirement to submit or inform us about evidence and clarifies who has the final responsibility to obtain written evidence.

Policy Interpretation

1. Statutory Provisions In general, an individual has a statutory obligation to provide us with evidence to prove to us that he or she is disabled or blind. The Act also precludes us from finding that an individual is disabled or blind unless he or she submits such evidence to us.10 The Act also provides that we “shall consider all evidence available in [an] individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under a disability.”11 In addition, when we make any determination, the Act requires us to “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.”12 or her disability or blindness claim, the Act also gives us a role in developing evidence. Our statutory responsibilities to ensure that we develop a complete 12-month medical history when we make a determination about whether an individual is under a disability, and to make every reasonable effort to obtain from a claimant's treating source all medical evidence that we need to make a determination before we evaluate medical evidence from a consultative examiner, does not, however, reduce the claimant's responsibilities in any way.

2. An Individual's Affirmative Duty To Provide Written Evidence Our regulations require an individual to submit or inform us about all evidence known to him or her that relates to whether or not he or she is disabled or blind.13 This duty is ongoing and requires an individual to disclose any additional evidence about which he or she becomes aware. This duty applies at each level of the administrative review process, including the Appeals Council level if the evidence relates to the period on or before the date of the administrative law judge (ALJ) hearing decision.14 Generally, individuals must submit or inform us about any written evidence no later than 5 business days prior to the date of the scheduled hearing before an ALJ.15 The ALJ may decline to consider or obtain any evidence if disclosure takes place after this date, unless certain circumstances outlined in the regulations apply.16 We expect individuals to exercise their reasonable good faith judgment about what evidence “relates” to their disability claims.17 Evidence that may relate to whether or not a claimant is blind or disabled includes objective medical evidence, medical opinion evidence, other medical evidence, and evidence from nonmedical sources.18 To satisfy the claimant's obligation under the regulations to “inform” us about written evidence, he or she must provide information specific enough to identify the evidence (source, location, and dates of treatment) and show that the evidence relates to the individual's medical condition, work activity, job history, medical treatment, or other issues relevant to whether or not the individual is disabled or blind. If the individual does not provide us with information specific enough to allow us to identify the written evidence and understand how it relates to whether or not the individual is disabled or blind, the individual has not informed us about evidence within the meaning of 20 CFR 404.935, 404.1512, 416.912 or 416.1435, and we will not request that evidence.

3. A Representative's Affirmative Duty To Assist in Developing Written Evidence responsibilities under the Act and our regulations. All representatives must faithfully execute their duties as agents and fiduciaries of claimants. In that regard, representatives must assist claimants in satisfying the claimants' duties regarding the submission of evidence and in complying with our requests for information or evidence as outlined in the prior section.19 *4 In addition to these responsibilities, a representative has an affirmative duty to provide competent assistance to the claimant, including acting with reasonable promptness to help obtain information or evidence the claimant must submit.20 To fulfill his or her affirmative duties under our rules, the representative must forward this information or evidence to us and must assist the claimant in complying with our requests for information or evidence as soon as practicable.21 In addition, under our rules of conduct, the representative is prohibited from, through his or her own actions or omissions, unreasonably delaying or causing to be delayed, without good cause, the processing of a claim at any stage of the administrative decisionmaking process.22 Representatives are also prohibited from engaging in actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings.23 A representative's failure to comply with his or her affirmative duties (or his or her engagement in prohibited actions) could result in disciplinary action. While our regulations state that a claimant must submit or inform us of all written evidence at least 5 business days prior to a hearing, our rules of conduct place additional requirements on representatives. As discussed above, under the rules of conduct, representatives are: (1) Required to act with reasonable promptness to help obtain information or evidence the claimant must submit; (2) required to assist the claimant in complying with our requests for information or evidence as soon as practicable; (3) prohibited from unreasonably delaying or causing a delay of the processing of a claim without good cause; and (4) prohibited from actions or behavior prejudicial to the fair and orderly conduct of administrative proceedings. Therefore, we expect representatives to submit or inform us about written evidence as soon as they obtain or become aware of it. Representatives should not wait until 5 business days before the hearing to submit or inform us about written evidence unless they have compelling reasons for the delay (e.g., it was impractical to submit the evidence earlier because it was difficult to obtain or the representative was not aware of the evidence at an earlier date). In addition, it is only acceptable for a representative to inform us about evidence without submitting it if the representative shows that, despite good faith efforts, he or she could not obtain the evidence. Simply informing us of the existence of evidence without providing it or waiting until 5 days before a hearing to inform us about or provide evidence when it was otherwise available, may cause unreasonable delay to the processing of the claim, without good cause, and may be prejudicial to the fair and orderly conduct of our administrative proceedings. As such, this behavior could be found to violate our rules of conduct and could lead to sanction proceedings against the representative. from further practice before the Commissioner a representative who refuses to comply with our rules and regulations or who violates any provision for which a penalty is prescribed.24 We will evaluate each circumstance on a case-by-case basis to determine whether to refer a possible violation of our rules to our Office of the General Counsel (OGC). For example, in accordance with the regulatory interpretation discussed above, we may refer a possible violation of rules to OGC when: · A representative informs us about written evidence but refuses, without good cause, to make good faith efforts to obtain and timely submit the evidence; · a representative informs us about evidence that relates to a claim instead of acting with reasonable promptness to help obtain and timely submit the evidence to us; · the representative waits until 5 days before a hearing to provide or inform us of evidence when the evidence was known to the representative or available to provide to us at an earlier date; · the clients of a particular representative have a pattern of informing us about written evidence instead of making good-faith efforts to obtain and timely submit the evidence; or · any other occasion when a representative's actions with regard to the submission of evidence may violate our rules for representatives. When we refer a possible violation to OGC, it does not change our duties with respect to the development of the evidence.25

4. Our Duty To Assist Claimants in Developing Written Evidence Before we make a determination that an individual is not disabled, we must develop the individual's complete medical history, generally for at least 12 months preceding the month in which he or she applied for benefits.26 We will make every reasonable effort to help individuals obtain medical evidence from their own medical sources and entities that maintain medical evidence when the individual gives us permission to request the information.27 Every reasonable effort means that we will make an initial request for evidence from the medical source or entity that maintains the medical evidence, and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make a follow-up request to obtain the medical evidence necessary to make a determination.28 medical source or entity that maintains the evidence if: · We were informed about the evidence (in the manner explained above) no later than 5 business days before the date of the scheduled hearing; or · we were not informed about the evidence at least 5 business days before the date of the scheduled hearing, but one of the circumstances listed in 20 CFR 404.935(b) or 416.1535(b) applies. *6 We will first ask the individual or representative to submit the evidence. However, if the individual or representative shows that he or she is unable to obtain the evidence despite good faith efforts or for reasons beyond his or her control, we may request the evidence directly from the medical source or entity that maintains the evidence. At the Appeals Council level of review, development of evidence is more limited. The Appeals Council will not obtain or evaluate additional evidence when deciding whether to grant review unless: · One of the circumstances listed in 20 CFR 404.970(b) or 416.1470(b) applies and the individual or his or her representative shows that the evidence is related to the period on or before the date of the hearing level decision; or · the claim is a title XVI claim that is not based on an application for benefits (e.g., an age-18 redetermination). [FR Doc. 2017-21252 Filed 10-3-17; 8:45 am] BILLING CODE 4191-02-P Social Security Administration

Department of Health and Human Services

Footnotes 1 Sections 223(d)(5)(A) and 1614(a)(3)(H)(i) of the Act, 42 USC 423(d)(5)(A) and 1382c(a) (3)(H)(i). 2 20 CFR 404.1512(a) and 416.912(a). 4 81 FR 90987. 5 81 FR 45079, 45080 (2016). 6 20 CFR 404.1710(a) and 416.1510(a). 7 20 CFR 404.1740 and 416.1540. 8 20 CFR 404.1740(b)(1) and 416.1540(b)(1). 9 20 CFR 404.1740(b)(2) and 416.1540(b)(2). 10 See sections 223(d)(5)(A) and 1614(a)(3)(H)(i) of the Act, 42 USC 423(d)(5)(A) and 1382c(a)(3)(H)(i); 20 CFR 404.1512(a)(1) and 416.912(a)(1). 11 Sections 223(d)(5)(B) and 1614(a)(3)(H)(i) of the Act, 42 USC 423(d)(5)(B) and 1382c(a) (3)(H)(i). 12 Id. 13 20 CFR 404.1512(a)(1) and 416.912(a)(1). 14 20 CFR 404.1512(a)(1) and 416.912(a)(1). 15 20 CFR 404.935 and 416.1435. 16 20 CFR 404.935(b) and 416.1425(b). However, for age-18 redetermination and continuing- disability review cases under title XVI of the Act, the requirement to submit or inform us about evidence no later than 5 business days before a scheduled hearing does not apply if our other rules allow the claimant to submit evidence after the date of an ALJ decision. See 20 CFR 416.1435(c) and 416.1470(b). 17 80 FR 14828, 14829 (March 20, 2015). 18 20 CFR 404.1513(a) and 416.913(a). However, evidence generally does not include confidential communications between the individual and his or her representative about providing or obtaining legal advice, and it does not include a representative's written analyses of the claim. 20 CFR 404.1513(b) and 416.913(b). 19 See 20 CFR 404.1740(b)(1), (b)(2) and 416.1540(b)(1), (b)(2). 20 See 20 CFR 404.1740(b)(3) and 416.1540(b)(3). 21 20 CFR 404.1740(b)(1), (b)(2) and 416.1540(b)(1), (b)(2). 22 20 CFR 404.1740(c)(4) and 416.1540(c)(4). 23 20 CFR 404.1740(c)(7) and 416.1540(c)(7). 24 42 USC 406(a)(1). See also 20 CFR 404.1745 and 416.1545 (“When we have evidence that a representative ... has violated the rules governing dealings with us, we may begin proceedings to suspend or disqualify that individual from acting in a representational capacity before us.”) 25 See 20 CFR 404.935 and 416.1435. 26 Sections 223(d)(5)(B) and 1614(a)(3)(H)(i) of the Act, 42 USC 423(d)(5)(B) and 1382c(a) (3)(H)(i); 20 CFR 404.1512(b) and 416.912(b). 27 20 CFR 404.1512(b)(1) and 416.912(b)(1). 28 20 CFR 404.1512(b)(1)(i), 404.1593(b), 416.912(b)(1)(i), and 416.993(b). SSR 17-4P (S.S.A.), 2017 WL 4736894 2019 WL 6640134 14.) For the reasons set forth below, Plaintiff’s 2019 WL 6840134 motion for judgment on the pleadings is denied Only the Westlaw citation and Defendant’s motion for judgment on the is currently available. pleadings is granted. United States District Court, N.D. New York. I. RELEVANT BACKGROUND SHARI LEE Z., Plaintiff, A. Factual Background v. Plaintiff was born in 1968, making her Andrew SAUL, ' Defendant. 46 years old at her application filing date and 49 years old at the date of the meee 68 (GTS) ALJ’s decision. Plaintiff reported having a . high school education with a history of Signed 12/16/2019 special education. Plaintiff alleges disability Attorneys and Law Firms due to fibromyalgia, headaches, borderline personality disorder, osteopenia, osteoarthritis, OF COUNSEL: E. KENTON FOULKE, ESQ., acid_ reflux, obsessive compulsive disorder FOULKE LAW FIRM, Counsel for Plaintiff, 5 (“OCD”), panic attacks, anxiety attacks, Court Street, Auburn, NY 13021. depression, overactive bladder, back problems, high blood pressure, scoliosis, and sinus OF COUNSEL: AMELIA STEWART, ESQ., _ problems. Special Assistant U.S. Attorney, SOCIAL SECURITY ADMINISTRATION, OFFICE OF GENERAL COUNSEL-REGION I, B. Procedural History Counsel for Defendant, 625 JFK Building, 15 Plaintiff applied for Supplemental Security New Sudbury Street, Boston, MA 02203. Income on December 15, 2015. Plaintiff’s application was initially denied on January 7, 2016, after which she timely requested a DECISION and ORDER hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared at a video hearing GLENN T. SUDDABY, Chief United States before ALJ Laureen Penn on February 14, District Judge 2018. On March 12, 2018, the ALJ issued a written decision finding Plaintiff was not *1 Currently before the Court, in this action disabled under the Social Security Act. (T. filed by Shari Lee Z. (“Plaintiff”) against 1 5-35.)° On February 1, 2019, the Appeals the Commissioner of Social Security, Andrew — Council denied Plaintiff’s request for review, Saul (“Defendant”) pursuant to "42 U.S.C. § making the ALJ’s decision the final decision of 405(g), are (1) Plaintiff's motion for judgment the Commissioner. (T. 1-3.) on the pleadings, and (2) Defendant’s motion for judgment on the pleadings. (Dkt. Nos. 10,

C. The ALJ’s Decision but not climb ladders, Generally, in her decision, the ALJ made the ropes, or scaffolds. She following six findings of fact and conclusions can frequently handle and of law. (T. 18-35.) First, the ALJ found finger bilaterally. She can that Plaintiff has not engaged in substantial perform simple, routine, gainful activity since her application filing repetitive [tasks] in an date. (T. 18.) Second, the ALJ found that environment with few, if any, Plaintiff’s bilateral knee arthritis, fibromyalgia, workplace changes. She can osteoarthritis, degenerative disc disease, occasionally interact with spondylosis, sacroiliitis, idiopathic scoliosis, supervisors [and] coworkers, lumbosacral radiculopathy, systemic lupus and can have incidental erythematosus, undifferentiated connective interaction with the public. tissue disease, osteoporosis, degenerative joint disease, carpal tunnel syndrome, major depressive disorder, OCD, generalized (T. 24.) Fifth, the ALJ found that Plaintiff anxiety disorder, post-traumatic stress disorder is unable to perform her past relevant work. (“PTSD”), panic disorder without agoraphobia, (T. 33.) Sixth, the ALJ found that Plaintiff and cognitive disorder are severe impairments. remains able to perform a significant number (Id.) Third, the ALJ found that Plaintiff’s severe of sedentary jobs in the national economy, impairments do not meet or medically equal specifically as a document preparer, a toy one of the listed impairments in 20 C.F.R. stuffer, and an addresser. (T. 34.) The ALJ § 404, Subpart P, App. 1 (the “Listings”). therefore concluded that Plaintiff is not (T. 20-24.) Specifically, the ALJ considered disabled. Listings 1.02, 1.04, 11.14, 12.04, 12.06, 12.11, 12.15, 14.02, and 14.06. (Id.) Fourth, the ALJ found that Plaintiff has the residual functional D. The Parties’ Briefing on Their capacity (“RFC”) to perform Motions 1. Plaintiff’s Motion for *2 sedentary work as Judgment on the Pleadings defined in 20 CFR 416.967(a) except she can Generally, in her memorandum of law, Plaintiff lift and carry 10 pounds asserts two arguments. (Dkt. No. 10, at occasionally and 10 pounds 7-19 [Pl.’s Mem. of Law].) First, Plaintiff frequently. She can stand argues that the ALJ’s RFC finding is not and walk for three hours. supported by substantial evidence because (a) She can sit for six hours. that finding is based on her lay opinion, her She can occasionally stoop, selective consideration of the evidence, and her crouch, and kneel, and never misinterpretation of the evidence, and (b) the 2019 WL 6640134 ALJ erred in failing to afford controlling weight the time period required by the regulations to the opinion from treating physician Martin and did not offer any reason sufficient under Schaeffer, M.D., in that she failed to provide the regulation to merit consideration of that adequate reasons supported by the evidence for evidence. (/d. at 15-18.) Defendant notes that declining to adopt the limitations opined by Dr. _ the record does contain other treatment notes Schaeffer. (/d. at 7-17.) from the Brownell Center, and argues that the regulations allow for consideration of Second, Plaintiff argues that the ALJ erred in an otherwise “incomplete” record where the refusing to consider or accept evidence from relevant evidence was not submitted within the the Brownell Center that was submitted two _ time period required by law. (/d.) days before the hearing because (a) it resulted in the ALJ considering an opinion from Nurse Practitioner Melinda Myers without the benefit I]. APPLICABLE LEGAL STANDARDS of her treatment records, and (b) it left the . record incomplete such that the ALJ could not A. Standard of Review □□□ have rendered a sufficient decision without that A court reviewing a denial of disability . benefits may not determine de novo whether an evidence. (/d. at 17-19.) individual is disabled. © 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., . 906 F.2d 856, 860 (2d Cir. 1990). Rather, the 2. Defendant’s Motion for □ ; . . Commissioner’s determination will be reversed Judgment on the Pleadings only if the correct legal standards were not Generally, in his memorandum of. law, applied, or it was not supported by substantial Defendant asserts two arguments. (Dkt. No. evidence. See | Johnson v. Bowen, 817 F.2d 14, at 3-18 [Def.’s Mem. of Law].) First, 983, 986 (2d Cir. 1987) (“Where there is a Defendant argues that the ALJ’s RFC finding reasonable basis for doubt whether the ALJ is supported by substantial evidence because applied correct legal principles, application of (a) the ALJ properly and fairly considered and the substantial evidence standard to uphold a reconciled all of the evidence in the record finding of no disability creates an unacceptable when making that finding, and (b) the ALJ risk that a claimant will be deprived of the properly considered Dr. Schaeffer’s opinion right to have her disability determination made and provided good reasons for declining to according to the correct legal principles.”); afford that opinion controlling weight or to accord Grey v. Heckler, 721 F.2d 41, 46 (2d accept all of the opined limitations. (/d. at Cir. 1983), "Marcus v. Califano, 615 F.2d 3-15.) 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a Second, Defendant argues that the ALJ was mere scintilla,” and has been defined as “such entitled to reject the late-submitted evidence relevant evidence as a reasonable mind might from the Brownell Center because Plaintiff’s accept as adequate to support a conclusion.” counsel did not submit that evidence within " Richardson v. Perales, 402 U.S. 389, 401, 91

2019 WL 6640134 S. Ct. 1420, 1427 (1971). Where evidence is 140-42, 107 S. Ct. 2287 (1987). The five-step deemed susceptible to more than one rational _ process is as follows: interpretation, the Commissioner’s conclusion must be upheld. | Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). First, the [Commissioner] considers whether the *3 “To determine on appeal whether the ALJ’s claimant is _—_ currently findings are supported by substantial evidence, engaged in _ substantial a reviewing court considers the whole record, gainful activity. If he is examining evidence from both sides, because not, the [Commissioner] an analysis of the substantiality of the evidence next considers — whether must also include that which detracts from its the claimant has 4 weight.” Williams v. Bowen, 859 F.2d 255, “seve re amp airment which 258 (2d Cir. 1988). If supported by substantial Senay ums . a evidence, the Commissioner’s finding must hy basic seen nie be sustained “even where substantial evidence If the claimant su fers may support the plaintiff’s position and such an impairment, the despite that the court’s independent analysis hitd inqui h th of the evidence may differ from _ the Hare Inquiry 1s whe at Lo, □□□ . based solely on medical [Commissioner’s].” Rosado v. Sullivan, 805 Supp. 147, 153 (S.D.N.Y. 1992). In evidence, the has other words, this Court must afford the he fe Assen di ye f . Commissioner’s determination considerable iste mh APpenes 8 te deference, and may not substitute “its own regulations. If the claimant judgment for that of the [Commissioner], even has such an Impairment, if it might justifiably have reached a different oe da nan heahd result upon a de novo review.” "Valente vy. without considering Sec'y of Health & Human Servs., 733 F.2d vocational factors such 1037, 1041 (2d Cir. 1984). as age, education, and work experience; the B. Standard to Determine Disability [Commissioner] Presumes The Commissioner has established a five- that a claimant who s step evaluation process to determine whether afflicted with a “issted an individual is disabled as defined by the impairment is unable to perform substantial gainful Social Security Act. 20 C.F.R. §§ 404.1520, activity. Assuming the 416.920. The Supreme Court has recognized claimant does not have the validity of this sequential evaluation a listed impairment, the process. |” Bowen v. Yuckert, 482 U.S. 137, fourth inquiry is whether,

2019 WL 6640134 despite the claimant’s severe statements and arguing why she believes impairment, he has _ the those statements were erroneous, including residual functional capacity statements that there was no objective evidence to perform his past work. to support the reported severity of Plaintiff’s Finally, if the claimant is back pain, that the MRI of her lumbar spine unable to perform his past showed only mild-to-moderate changes, and work, the [Commissioner] that Plaintiff did not make ongoing complaints then determines whether to providers about her back pain. (Dkt. No. 10, there is other work which at 7-11 [Pl.’s Mem. of Law].) Plaintiff’s various the claimant could perform. arguments are without merit. Under the cases previously discussed, the claimant bears *4 Plaintiff first argues that “the ALJ the burden of the proof as to reasoned that there was no objective evidence the first four steps, while the supporting the claimant’s testimony of severe [Commissioner] must prove back pain.” (Dkt. No. 10, at 8 [Pl.’s Mem. the final one. of Law].) However, the ALJ did, in fact, note objective evidence supporting limitations from Plaintiff’s back impairment and pain, but v. Schweiker, 675 F.2d 464, 467 (2d Simply found that the objective evidence did Cir. 1982); accord McIntyre v. Colvin, 758 not suPP ort the degree of limitation asserted F3d 146, 150 (2d Cir, 2014). “If at any step >Y Plaintiff. It is the ALJ’s duty to make a finding of disability or non-disability can such determinations based on all the evidence, be made, the SSA will not review the claim and the ALJ need not accept a claimant □ iu reported subjective degree of limitation where further.” Barnhart v. Thompson, 540 U.S. 20, such reports are not supported by the evidence. 24 (2003). See SSR 16-3p (noting that the ALJ must consider the effect of a claimant’s symptoms on III. ANALYSIS her ability to perform work-related functions, including assessing whether those symptoms 1. Whether the ALJ’s RFC Finding Is are consistent with the objective medical and Supported By Substantial Evidence other evidence in the record). The ALJ cited After careful consideration, the Court answers Objective and other evidence of limitations and this question in the affirmative for the reasons Concluded that they limited Plaintiff to a range stated in Defendant’s memorandum of law. Of sedentary work. It is therefore clear that (Dkt. No. 14, at 3-15 [Def.’s Mem. of Law].) | the ALJ appropriately considered the objective To those reasons, the Court adds the following ™edical evidence related to Plaintiff's back analysis. impairment. Additionally, even if Plaintiff can point to instances where she reported back pain Plaintiff has attempted to poke holes in the — to her providers to contradict the ALJ’s finding ALJ’s decision by honing in on specific that she did not make ongoing complaints

2019 WL 6640134 to those providers of the symptoms to the Plaintiffalso argues that the ALJ erred in failing degree alleged, the ALJ offered multiple other to afford controlling weight to Dr. Schaeffer’s reasons, including the objective evidence and opinion and in failing to adopt the limitations her reported daily activities, for finding that contained in that opinion. (Dkt. No. 10, at Plaintiff's symptoms were not as severe as 11-17 [Pl.’s Mem. of Law].) “ ‘[T]he opinion she alleged. To the extent that Plaintiff argues of a claimant’s treating physician as to the that the ALJ selectively reviewed the evidence nature and severity of the impairment is given to focus on only the evidence that supported ‘controlling weight’ so long as it is ‘well- her finding, the relevant legal standards do — supported by medically acceptable clinical and not require the ALJ to discuss all of the laboratory diagnostic techniques and is not evidence, but rather only to show that her inconsistent with the other substantial evidence decision is supported by substantial evidence. in the case record.’ ” |” Greek v. Colvin, See Barringer v. Comm'r of Soc. Sec., 358 F. 399 F.3d 370, 375 (2d Cir. 2015) (quoting ee yo eden ce ae Burgess v. Astrue, 537 F.3d 117, 128 [2d ( ous require fe eve © recone Y Cir 2008]). However, in situations where the and fairly, an ALJ is not required to discuss treating physician’s opinion is not entitled to all the evidence submitted, and [his] failure eyes oo controlling weight, the ALJ must “explicitly to cite specific evidence does not indicate . consider, inter alia: (1) the frequency, length, that it was not considered.”); accord Clark nature, and extent of treatment; (2) the amount v. Comm'r of Soc. Sec., 13-CV-0256, 2016 . of medical evidence supporting the opinion; WL 1057047, at *5-6 (N.D.N.Y. Mar. 14, □ (3) the consistency of the opinion with the 2016) (Scullin, J.); Fiorenza v. Comm'r of . remaining medical evidence; and (4) whether Soc. Sec., 16-CV-1255, 2017 WL 4443815, at □ ae oo *5 (N.D.N.Y. Oct. 4, 2017) (Suddaby, C.J.). the physician is a specialist.” Greek, 802 F.3d Lastly, Plaintiff’s argument that the ALJ’s at 375 (quoting Selian v. Astrue, 708 F.3d characterization of an MRI as showing mild-to- 409, 418 [2d Cir. 2013]). However, “[w]here moderate degenerative changes was somehow an ALJ’s reasoning and adherence to the contrary to the evidence is entirely without Regulations is clear, she is not required to merit and, as Defendant argues, Plaintiff has explicitly go through each and every factor not pointed to any way in which the ALJ’s of the Regulation.” Blinkovitch v. Comm'r of failure to specifically note findings such as Soc. Sec., 15-CV-1196, 2017 WL 782979, at *4 disc herniation or mild nerve root impingement (N.D.N.Y. Jan. 23, 2017) (Carter, M.J.) report establishes that the ALJ did not consider those | and recommendation adopted by 2017 WL findings or that the ALJ’s finding should have 782901 (N.D.N.Y. Feb. 28, 2017) (Suddaby, been different on the basis of this MRI; □□ C.J.) (citing " Atwater v. Astrue, 512 F. App'x already discussed, the ALJ need not discuss 67, 70 [2d Cir. 2013]). After considering these every piece of evidence to show that it was factors, “the ALJ must ‘comprehensively set considered. forth [his] reasons for the weight assigned to a treating physician’s opinion.’ ” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at

2019 WL 6640134 129). “The failure to provide ‘good reasons for rejecting a treating physician’s opinion.” for not crediting the opinion of a claimant’s LaFave v. Comm'r of Soc. Sec., 16-CV-0621, treating physician is a ground for remand.’ ” 2017 WL 4011264, at *5 (N.D.N.Y. Sept. 11, Greek, 802 F.3d at 375 (quoting Burgess, 2017) (Suddaby, C.J.) (citing Otts v. Comm'r 537 F.3d at 129-30). of Soc. Sec., 249 F. App'x 887, 889 [2d Cir. 2007]; "Saxon v. Astrue, 781 F. Supp. 2d 92, As an initial matter, the Court rejects Plaintiff's 1 g9 [N.D.N.Y. 2011]). The medical treatment argument that the ALJ was required to afford eyidence as a whole shows that Plaintiff Dr. Schaeffer’s opinion controlling weight typically had a normal gait, some decreased because, as the ALJ found, it is not well- range of spinal motion, tender points associated supported or consistent with the substantial jth fibromyalgia, pain with palpation of her evidence in the record. In affording only jymbar region, tenderness over her bilateral “some” weight to Dr. Schaeffer’s opinion, > the — sacroiliac joints, in her knees and in her DIP ALJ stated that (a) his limitation for lifting and —_ and PIP finger joints, primarily normal reflexes carrying up to five pounds was inconsistent and strength in her lower extremities, a positive with observations of only mild hand swelling _ right-sided straight-leg raising test, and some and a minor decrease in grip strength, (b) his mild-to-moderate crepitus and effusion in her limitations for greatly reduced abilities to sit, knees with limited range of motion in her stand, and walk were inconsistent with the tight knee. (See e.g, T. 551, 591, 611-12, moderate findings related to Plaintiff’s knees, 629-31, 667-68, 671-72, 676, 678-79, 684-85, no ongoing findings of gait abnormality, and 693, 704-05, 747-48, 752, 756, 761, 764, 768, no observed use of an assistive device, (c) he 780, 784-85, 793-94, 798, 801-02, 815-16, failed to provide any rationale to support his 820-21, 828, 833, 837-38, 842-43, 848, 853, findings related to manipulation, operation of 858, 867, 869, 898-99, 935-36, 972-74, 986-88, foot controls, occasional exposure to hazards, 1001-02, 1007, 1021-23, 1032-33, 1042-45.) or occasional posteral limitations (although As the ALJ found, this evidence is inconsistent the ALJ found that those postural limitations — with the quite extreme limitations opined by Dr. were supported by the overall record), and Schaeffer. As a result, the ALJ’s rejection of (d) his opinion was inconsistent with the most of the limitations opined by Dr. Schaeffer conservative treatment history, the “at most is supported by both legally sufficient good moderate objective findings”, and Plaintiff’s reasons and substantial evidence. Plaintiff’s own reported activities. 4 (T. 31.) various arguments on this matter are rejected.

*5 The ALJ’s decision therefore shows Additionally, the ALJ’s RFC finding is, as that she considered the relevant factors and 4 general matter, supported by substantial provided good reasons supported by substantial ¢Vidence. Although the ALJ inadvisedly evidence for the weight she afforded to afforded “some weight” to all of the Dr. Schaeffer’s opinion. In particular, it is °Pimions in the record, it is clear from her well-established that “[iJnconsistency with ¢©XPlanations which opinions she relied on to the evidence can constitute a good reason 4 greater extent when formulating the RFC

the functional opinions related to Plaintiff’s that the ALJ’s RFC finding is consistent with physical impairments from the relevant time the applicable legal standards and supported by period, the ALJ made the following findings: substantial evidence. (1) the opinion from consultative examiner Mohammed Zaman, M.D., was generally consistent with her complaints and the findings, 2. Whether the ALJ Properly Declined to but additional limitations were warranted in Accept the Late-Submitted Records standing and walking due to subsequent *6 After careful consideration, the Court treatment for her knee impairment;5 (2) the answers this question in the affirmative for the reasons stated in Defendant’s memorandum of opinion from treating physician Dr. Schaeffer law. (Dkt. No. 14, at 15-18 [Def.’s Mem. of was inconsistent with the objective evidence, Law].) To those reasons, the Court adds the her conservative treatment and her own following analysis. reported activities, and he failed to provide clear rationale for the opined limitations; and Section 1435 of Title 20 of the Code of (3) the opinion from treating rheumatologist Federal Regulations states that “[e]ach party Digant Nanavati, M.D.6, was inconsistent must make every effort to ensure that the with the objective medical findings and other administrative law judge receives all of the evidence and her conservative treatment, and evidence and must inform us about or submit he failed to prove rationale for the opined any written evidence, as required in § 416.912, limitations. (T. 30-32.) The ALJ also discussed no later than 5 business days before the the objective treatment notes in detail in a way date of the scheduled hearing.” 20 C.F.R. § that shows that her RFC finding is supported by 1435(a). If a party fails to comply with this substantial evidence. (T. 25-30.) requirement to submit all written evidence at least five days before the hearing, “the The Court notes that Plaintiff did not challenge administrative law judge may decline to the weight afforded to any of the opinions consider or obtain the evidence unless” (1) related to her mental functioning or argue that the agency’s actions mislead the party, (2) the mental RFC was unsupported, other than to the party had a physical, mental, educational, argue that the ALJ lacked sufficient evidence to or linguistic limitation that prevented him make a mental determination (an argument the or her from submitting the evidence, or (3) Court rejects, as will be discussed below in Part the party experienced an unusual, unexpected, III.2 of this Decision and Order). As a result, or unavoidable circumstance that prevented the Court states only that it finds that the ALJ’s him or her from submitting the evidence findings as to Plaintiff’s mental functioning earlier, such as serious illness, the death are supported by substantial evidence based on or serious illness of an immediate family her consideration of the evidence as a whole member, accidental destruction or damage to and her appropriate weighing of the relevant the records, or inability to obtain those records opinion evidence. in the relevant time despite active and diligent In her decision, the ALJ explained that had submitted the updated records. she declined to admit the evidence from the Brownell Center because Plaintiff’s The Court finds that the ALJ’s determination representative submitted it the day prior to that Plaintiff had not shown any of the the hearing “indicating that these had been in exceptions in 20 C.F.R. § 416.1435(b) is his files but had been missed previously,” and consistent with the regulations and supported this reason did not meet an exception in 20 by substantial evidence. The representatives C.F.R. § 416.1435(b). (T. 15.) The ALJ noted explanation makes it clear that he simply that the representative “should reasonably have forgot to submit those updated records from been aware of the missing records given the the Brownell Center; such a mistake by a absence of updated records in the file and his representative is not an unusual, unexpected, appointment to the case more than six months or unavoidable circumstance as contemplated prior to the hearing.” (Id.) by the regulation. Nor does his statement that the inclusion of older records from the At the hearing, Plaintiff’s representative Brownell Center made him think he submitted attempted to explain his late submission of the the updated records indicate that the Social relevant records, noting that, when he received Security Administration’s actions in uploading the records, they did not include the therapy those older files misled Plaintiff’s counsel notes from NP Myers, so he wrote another into believing the newer records had been letter to the provider to request those and submitted; a cursory glance at those older intended to put all of the records together to records would have revealed to him that they submit, but the provider never sent the therapy did not extend past 2015. notes; it was not until he was reviewing the records from the Brownell Center that were *7 In making her argument, Plaintiff does not already submitted that he realized the updated address whether the untimely submission meets records had not been submitted, about which the requirements of 20 C.F.R. § 416.1435(a) he stated, “I guess I overlooked it.” (T. 44, and (b), but rather focuses on whether failure 75-76.) The representative also stated, “I don't to admit these records made the administrative think I submitted the records that went up record incomplete. (Dkt. No. 10, at 17-19 [Pl.’s to 2015 but it made me think I did, and Mem. of Law].) However, the fact that the those would have been the complete records. record might be incomplete without the late- But I don't think I'm the one that submitted submitted records from the Brownell Center those records up to 2015, I think that was does not require remand because, as this Court put in by the Social Security Administration. has noted previously, although there is a general So it was just a combination of unfortunate duty on the ALJ to ensure a complete record events.” (T. 76.) In other words, Plaintiff’s before rendering a decision, the Social Security counsel saw records from the Brownell Center Administration specifically balanced that duty that had been submitted by the Social Security with the goal of the five-day rule, and “[t]o say that the ALJ was required to admit and c wo an ss nid oe tr s uth bi ms ie ttv ei dd e inn c ce o mde ps lp iait ne c eth we itf ha c tt h eth fa ivt ei -t the record is so insufficient that it rendered day rule would make that rule an empty vessel the ALJ incapable of making a determination without the ability to consider the more recent that need not be complied with.” See Arthur L. Brownell Center records. As a result, in the v. Berryhill, 18-CV-0304, 2019 WL 4395421, absence of any sufficient reason for failing to at *3-4 (N.D.N.Y. June 6, 2019) (Stewart, timely submit those records, the Court finds M.J.) (rejecting the same argument) report that the ALJ was within her discretion under and recommendation adopted by 2019 WL the regulations to refuse to consider the late- 3213229 (N.D.N.Y. July 17, 2019) (Scullin, J.). submitted evidence. The circumstances of this case do not suggest that any different outcome is warranted. ACCORDINGLY, it is Plaintiff has been represented by her current counsel since June 23, 2017, which was ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is approximately eight months before her hearing occurred, and thus counsel had plenty of time DENIED; and it is further to obtain and submit mental health treatment records from the Brownell Center for the period ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 14) is after October 2015. (T. 236-38.) Additionally, the evidence in the record (excluding the GRANTED; and it is further relevant Brownell Center records) provides sufficient evidence from which the ALJ ORDERED that Plaintiff’s Complaint (Dkt. could assess Plaintiff’s mental functioning; in No. 1) is DISMISSED. addition to the opinion from NP Myers, the record contains a consultative examination and All Citations reports and examinations related to Plaintiff’s mental health symptoms (particularly her Slip Copy, 2019 WL 6840134 anxiety) from her family physician and other Footnotes 1 Plaintiff initially filed this action against Nancy Berryhill in her capacity as the Acting Commissioner of the Social Security Administration at the time Plaintiff filed her Complaint. (Dkt. No. 1 [Pl.’s Compl.].) However, Andrew Saul became the Commissioner of Social Security in June 2019. As a result, the Court finds that Commissioner Saul is automatically substituted for former Acting Commissioner Berryhill in this litigation. See Fed. R. Civ. P. 25(d) (stating that when a party in his or her official capacity ceases to hold the relevant office while an action is pending, is directed to update the caption to reflect this substitution. 2 The Administrative Transcript is found at Dkt. No. 9. Citations to the Administrative Transcript will be referenced as “T.” and the Bates-stamped page numbers as set forth therein will be used rather than the page numbers assigned by the Court’s CM/ ECF electronic filing system. 3 Dr. Schaeffer opined that Plaintiff could occasionally lift and carry up to five pounds, sit two hours total, stand or walk one hour total but did not require a cane to ambulate, occasionally reach, handle, finger, feel, push and pull bilaterally, occasionally operate foot controls bilaterally, occasionally perform postural activities, and occasionally be exposed to unprotected heights and moving mechanical parts, and operate a motor vehicle. (T. 646-51, 875-80.) 4 The Court notes that the ALJ only explicitly discussed and weighed Dr. Schaeffer’s functional opinion from October 2016, despite the fact the record also contains a functional opinion from July 2017. (T. 31, 875-80.) However, the only substantial difference between these two opinions is the addition of a limitation to moderate noise in the July 2017 opinion; the rest of the limitations are completely identical. (Compare T. 646-51 with T. 875-80.) Given that Plaintiff has not alleged any problems dealing with noise levels, and that the ALJ appears to have rejected an identical limitation from a different source, the Court finds it appropriate to assume that the ALJ implicitly rejected the July 2017 opinion for all of the same reasons it rejected the October 2016 opinion, and finds that the ALJ’s failure to explicitly discuss the July 2017 opinion is harmless error. See Fiducia v. Comm'r of Soc. Sec., 16-CV-1317, 2017 WL 4513405, at *4 (N.D.N.Y. Oct. 10, 2017) (Suddaby, C.J.) (collecting cases finding that failure to consider or weigh an opinion is harmless error where consideration of that opinion would not have changed the outcome). The Court also notes that Plaintiff did not argue that the ALJ erred in failing to explicitly discuss the July 2017 opinion, or make any specific argument as to a limitation for dealing with noise levels or how such limitation would change the outcome of the ALJ’s findings. 5 On December 3, 2015, Dr. Zaman opined that Plaintiff had a mild limitation in walking, standing, and handling objects, and a moderate limitation in climbing, bending, lifting, carrying, kneeling, reaching, pulling, and pushing. (T. 585.) 6 On August 14, 2017, Dr. Nanavati opined that Plaintiff could never lift or carry, could sit less 10-to-15 minutes total, stand less than 15 minutes total, walk less than 10 minutes total, needed to use a walker, could occasionally handle, finger and feel, but never reach, push or pull, never operate foot controls, occasionally climb stairs, never engage in other posturals, never be exposed to environmental conditions, and be exposed to only moderate noise. (T. 882-87.) End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.