Velez v. Berryhill

Filing 31

RULING. For the reasons set forth in the attached ruling, plaintiff's Motion to Reverse or Remand (Doc. # 21 ) is GRANTED, to the extent it seeks remand for further proceedings related to plaintiff's application for SSI benefits, and defendant's Motion for an Order Affirming the Decision of the Commissioner (Doc. # 29 ) is DENIED. It is so ordered. Signed by Judge Sarah A. L. Merriam on 5/9/19. (Dowie, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
DAVID VELEZ
:
:
v.
:
:
NANCY A. BERRYHILL,
:
ACTING COMMISSIONER, SOCIAL
:
SECURITY ADMINISTRATION
:
:
------------------------------x

Civ. No. 3:18CV01024(SALM)

May 9, 2019

RULING ON CROSS MOTIONS
Self-represented plaintiff David Velez brings this appeal
pursuant to §205(g) of the Social Security Act (“the Act”), as
amended, seeking review of a final decision by the Acting
Commissioner of the Social Security Administration (the
“Commissioner”) denying his application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”).
Plaintiff has moved for an order reversing the decision of the
Commissioner [Doc. #21]. Defendant has filed a motion for an
order affirming the decision of the Commissioner [Doc. #29].
For the reasons set forth below, plaintiff’s Motion to
Reverse or Remand [Doc. #21] is GRANTED, to the extent it seeks
remand for further proceedings related to plaintiff’s
application for SSI benefits, and defendant’s Motion for an
Order Affirming the Decision of the Commissioner [Doc. #29] is
DENIED.

1

I.

PROCEDURAL HISTORY1
Plaintiff filed applications for DIB and SSI on March 26,

2015, alleging disability beginning March 25, 2015. See
Certified Transcript of the Administrative Record, Doc. #16 and
attachments, compiled on August 3, 2018, (hereinafter “Tr.”) at
181, 194. Plaintiff’s applications were denied initially on
August 25, 2015, see Tr. 181-206, and upon reconsideration on
January 7, 2016, see Tr. 209-232.
On February 16, 2017, plaintiff, represented by Attorney
Meryl Anne Spat,2 appeared and testified before Administrative
Law Judge (“ALJ”) Alexander Peter Borré. See Tr. 141-72, 179-80.
Vocational Expert (“VE”) Courtney Olds testified at the hearing.
See Tr. 172-179. On June 6, 2017, the ALJ issued an unfavorable
decision. See Tr. 125-36. On May 23, 2018, the Appeals Council
denied plaintiff’s request for review, making the ALJ’s June 6,
2017, decision the final decision of the Commissioner. See Tr.
1-6. The case is now ripe for review under 42 U.S.C. §405(g).
II.

STANDARD OF REVIEW
The review of a Social Security disability determination

involves two levels of inquiry. First, the court must decide

The Commissioner, with her motion to affirm, has filed a
statement of material facts to which plaintiff has not
responded. See Doc. #29-2.
1

2

Plaintiff is now self-represented.
2

whether the Commissioner applied the correct legal principles in
making the determination. See Balsamo v. Chater, 142 F.3d 75, 79
(2d Cir. 1998). Second, the court must decide whether the
determination is supported by substantial evidence. See id.
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court’s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. See Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.”). “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 [his] disability determination
3

made according to the correct legal principles.” Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984). The ALJ is free to accept or reject the testimony of any
witness, but a “finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to permit
intelligible plenary review of the record.” Williams ex rel.
Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988). It is
well established that “an ALJ’s credibility determination is
generally entitled to deference on appeal.” Selian v. Astrue,
708 F.3d 409, 420 (2d Cir. 2013); see also Kessler v. Colvin, 48
F. Supp. 3d 578, 595 (S.D.N.Y. 2014) (“A federal court must
afford great deference to the ALJ’s credibility finding, since
the ALJ had the opportunity to observe the claimant’s demeanor
while the claimant was testifying.” (citation and internal
quotation marks omitted)); Pietrunti v. Dir., Office of Workers’
Comp. Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility
findings of an ALJ are entitled to great deference and therefore
can be reversed only if they are patently unreasonable.”
(citation and internal quotation marks omitted)).

4

It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). “[W]hether there is substantial evidence supporting the
appellant’s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ’s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d
Cir. 2013).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, plaintiff must demonstrate that she is
unable to work after a date specified “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 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
5

work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
§423(d)(2)(A); see also 20 C.F.R. §404.1520(c) (requiring that
the impairment “significantly limit[] ... physical or mental
ability to do basic work activities[]” to be considered
“severe”).3
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520. In the Second
Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his 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 which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider his
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
Some of the Regulations cited in this decision, particularly
those applicable to the review of medical source evidence, were
amended effective March 27, 2017. Those “new regulations apply
only to claims filed on or after March 27, 2017.” Smith v.
Comm’r, 731 F. App’x 28, 30 n.1 (2d Cir. 2018) (summary order).
Where a plaintiff’s claim for benefits was filed prior to March
27, 2017, “the Court reviews the ALJ’s decision under the
earlier regulations[.]” Rodriguez v. Colvin, No.
3:15CV1723(DFM), 2018 WL 4204436, at *4 n.6 (D. Conn. Sept. 4,
2018); White v. Comm’r, No. 17CV4524(JS), 2018 WL 4783974, at *4
(E.D.N.Y. Sept. 30, 2018) (“While the Act was amended effective
March 27, 2017, the Court reviews the ALJ’s decision under the
earlier regulations because the Plaintiff’s application was
filed before the new regulations went into effect.” (citation
omitted)).
3

6

impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” (“RFC”) is what a person is still
capable of doing despite limitations resulting from her physical
and mental impairments. See 20 C.F.R. §404.1545(a)(1).

7

“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that the Social Security Act is a remedial statute to be
broadly construed and liberally applied.” Id. (citation and
internal quotation marks omitted).
IV.

THE ALJ’S DECSION
Following the above-described five-step evaluation process,

the ALJ concluded that plaintiff was not disabled under the Act.
See Tr. 136. At step one, the ALJ found that plaintiff had not
engaged in substantial gainful activity since the alleged onset
date of March 25, 2015. See Tr. 128. At step two, the ALJ found
that plaintiff had the severe impairments of “degenerative disc
disease of the lumbar spine status post fusion, obesity, and
mood disorder[.]” Id.
At step three, the ALJ found that plaintiff’s impairments,
either alone or in combination, did not meet or medically equal
the severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. See id. The ALJ specifically considered
Listings 1.04 (disorders of the spine) and 12.04 (bipolar and
8

related disorders). See Tr. 128-30. Before moving on to step
four, the ALJ found plaintiff had the RFC
to perform sedentary work as defined in 20 CFR
404.1567(a) and 416.967(a) except he cannot climb
ladders, ropes, or scaffolds or tolerate exposure to
hazards such as open moving machinery and unprotected
heights; can occasionally climb ramps and stairs;
frequently balance; occasionally stoop, kneel, crouch,
and crawl; is limited to simple and repetitive tasks in
an environment with no public interaction and only
occasional interaction with coworkers and supervisors;
he requires the ability to sit and stand at will and
would be able to continue to perform a job when standing.
Tr. 130.
At step four, the ALJ concluded that plaintiff was unable
to perform his past work. See Tr. 135. At step five, and after
considering the testimony of the VE as well as plaintiff’s age,
education, work experience, and RFC, the ALJ found that jobs
existed in significant numbers in the national economy that
plaintiff could perform. See id.
V.

DISCUSSION
The Court reads plaintiff’s motion as raising two primary

arguments for reversal of the Commissioner’s decision:
1. The Commissioner failed to consider treatment occurring
on or after July 31, 2017, generally; and
2. The Commissioner did not adequately assess plaintiff’s
abilities, including that plaintiff was required to use a
cane, beginning in March 2017.
Before evaluating these arguments, the Court pauses to discuss
the time frames relevant to each of plaintiff’s applications.

9

Plaintiff’s arguments appear to rest on the assumption that
any ongoing care he receives is relevant to this Court’s review.
This assumption is inaccurate. Applications for SSI and DIB
consider a claimant’s abilities during specific, different, time
frames.
With respect to plaintiff’s application for DIB benefits,
the relevant time frame is between the alleged onset date of
March 25, 2015, and plaintiff’s last insured date of December
31, 2016. With respect to SSI benefits, the relevant time frame
is between the alleged onset date of March 25, 2015, and the
date the ALJ issued his unfavorable decision, June 6, 2017. If
plaintiff became disabled after those dates, the appropriate
remedy is to file a new application for benefits, not to appeal
the ALJ’s June 6, 2017, unfavorable decision. Additionally, with
respect to each application, the Commissioner may determine that
plaintiff is entitled to benefits only for some of the time
periods at issue.
A. Consideration of New Evidence by the Appeals Council
The Regulations describe circumstances in which the Appeals
Council is required to consider new evidence submitted by a
claimant following an ALJ’s decision:
The Appeals Council will review a case if ... Subject to
paragraph (b) of this section, the Appeals Council
receives additional evidence that is new, material, and
relates to the period on or before the date of the
hearing decision, and there is a reasonable probability
10

that the additional evidence would change the outcome of
the decision.
20 C.F.R. §§404.970(a)(5), 416.1470(a)(5). Paragraph (b) states:
“[T]he Appeals Council will only consider additional evidence
... if you show good cause for not informing us about or
submitting the evidence” for particular enumerated reasons. 20
C.F.R. §§404.970(b), 416.1470(b). Good cause includes, inter
alia, that some “unavoidable circumstance beyond your control
prevented you from informing us about or submitting the evidence
earlier. Examples include[:] ... You actively and diligently
sought evidence from a source and the evidence was not received
or was received less than 5 business days prior to the
hearing[.]” 20 C.F.R. §§404.970(b)(3)(iv), 416.1470(b)(3)(iv).4

Appeals Council reviews of actions filed in Connecticut were
governed by 20 C.F.R. §405.401, rather than §404.970 and
§416.1470, until 2017. See 20 C.F.R. Part 405, App’x to Subpt. A
(effective June 13, 2011); see also Orriols v. Colvin,
3:14CV863(SRU), 2015 WL 5613153, at *2-4 (D. Conn. Sept. 24,
2015). However, the regulations were amended in 2017 to provide
consistency nationwide, and §405.401 has been eliminated
entirely. See generally Ensuring Program Uniformity at the
Hearing and Appeals Council Levels of the Administrative Review
Process, 81 Fed. Reg. 90987-01, 2016 WL 7242991 (Dec. 16, 2016)
(to be codified at 20 C.F.R. Parts 404, 405, and 416). Final
Rule 90987-01 states: “This final rule will be effective on
January 17, 2017. However, compliance is not required until May
1, 2017.” Id. Accordingly, compliance was required when the
Appeals Council evaluated plaintiff’s application following the
ALJ’s June 6, 2017, decision. See Tr. 136. The Court therefore
applies §404.970 and §416.1470 in reviewing the Appeals
Council’s actions.
4

11

New evidence is “any evidence that has not been considered
previously during the administrative process[,]” that is not
cumulative. McIntire v. Astrue, 809 F. Supp. 2d 13, 21 (D. Conn.
2010). “Evidence is material if it is (i) relevant to the time
period for which benefits have been denied and (ii) probative,
meaning it provides a reasonable probability that
the new evidence would have influenced the Commissioner to
decide the claimant’s application differently.” Id. “[N]ew
evidence submitted to the Appeals Council following the ALJ’s
decision becomes part of the administrative record for judicial
review when the Appeals Council denies review of the ALJ’s
decision.” Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996).
Here, the Appeals Council considered two sets of medical
records submitted after the ALJ rendered his decision. See Tr.
2. As to both sets of records the Appeals Counsel determined:
“We find this evidence does not show a reasonable probability
that it would change the outcome of the decision. We did not
consider and exhibit this evidence.” Id. Each of those sets of
records is relevant to one of plaintiff’s claims of error, and
the Court will address each of those claims of error in turn.
a. Plaintiff’s Treatment on and After July 31, 2017
Plaintiff’s motion references three back surgeries, in
addition to other, ongoing back treatment. See Doc. #21 at 1.
The first of those surgeries took place on June 16, 2016. See
12

id.

Although this was after plaintiff’s applications were

denied upon reconsideration at the state agency level, it was
six months before his last insured date of December 31, 2016,
and a year prior to the ALJ’s June 6, 2017, unfavorable
decision. The ALJ considered this surgery, and plaintiff’s
treatment shortly thereafter, and noted that plaintiff’s
condition improved. See Tr. 132.
Plaintiff’s second surgery took place on July 31, 2017,5
more than a month after the ALJ’s decision was issued. See Tr.
18. Plaintiff’s third surgery, as of the filing of his November
16, 2018, motion to reverse, was scheduled to take place on
January 7, 2019. See Doc. #21 at 1.
Plaintiff argues:
[T]he decision to disqualify me from receiving benefits
was based on a decision from the Hartford Court system
from February of 2017, before my second surgery that was
performed on [July] 31st 2017, the follow up stay at
Abbott Terrace Health Center, and follow up therapy
sessions at Access Rehab was never submitted by my
attorney. Therefore the decision that was made this past
May of 2018 was missing pertinent information regarding
my health.

Plaintiff’s motion states that this surgery was performed on
“June 31st 2017.” Doc. #21 at 1. The records submitted to the
Appeals Council indicate that the surgery took place on July 31,
2017. See Tr. 18.
5

13

Doc. #21 at 2.6 The Court interprets plaintiff’s reference to a
February 2017 decision of the “Hartford Court system” to refer
to the ALJ’s June 6, 2017, decision. That decision followed the
February 16, 2017, hearing the ALJ conducted, where plaintiff
testified, in Hartford. The Court is unaware of any decision of
a state court bearing on plaintiff’s applications.
The Appeals Council reviewed some evidence related to
treatment surrounding plaintiff’s second surgery, which was
submitted by plaintiff’s counsel. Specifically, the Appeals
Council reviewed records from University of Connecticut Health
Center, dated May 4, 2017, through October 12, 2017. See Tr. 2,
7-78. The Appeals Council determined that “the evidence did not
show a reasonable probability that it would change the outcome
of the decision.” Tr. 2.

Plaintiff has filed a letter on Abbott Terrace Health Center
letterhead which states that he “was a patient here at Abbott
Terrace from 6/22/2016 to 7/8/16 and 8/2/17 to 10/24 2017.” Doc.
#23 at 2 (sic). Plaintiff has not provided any other
documentation, or any treatment records, from Abbott Terrace
Health Center. Plaintiff has also filed what appear to be some
of his records of treatment following the July 31, 2017, surgery
from Access Rehab. See Doc. #24-3, Doc. #24-4. According to
plaintiff, these records cover treatment between January 10,
2018, and December 14, 2018. See Doc. #24-3 at 1, Doc. #24-4 at
1. The Court has had occasion to briefly review these records,
although they are not a part of the administrative record in
this case, and neither the ALJ nor the Appeals Council had
opportunity to review them. None of these records appear to be
retrospective in nature, nor do they address plaintiff’s
abilities on or before June 6, 2017. Accordingly, these records
do not relate to the time frame under consideration by the ALJ.
6

14

The five pages of records documenting treatment prior to
the ALJ’s decision, see Tr. 9-14 (records from May 5, 2017, and
June 1, 2017), do not reveal any information the ALJ had not
already considered. These records document plaintiff’s standard
follow-up care, similar to many records that were already before
the ALJ. They document his “low back pain, low back muscle
spasm,” Tr. 9, 12, and that “patient in fact has lost quite a
bit of weight, has low back paraverterbral muscle spasm no focal
deficit[,]” Tr. 13. As to the remaining records, see Tr. 15-78,
even if the evidence were probative, it does not relate to the
time frame under consideration by the ALJ. None of this evidence
is retrospective in nature; the records contain only discussion
of plaintiff’s ongoing treatment. Accordingly, the Appeals
Council did not err in failing to consider this evidence as it
did not meet the requirements of 20 C.F.R. §404.970(a)(5) and
§416.1470(a)(5).
b. Plaintiff’s Use of a Cane
Plaintiff argues that he required use of a cane beginning
in March 2017, and that this is relevant to the applications for
benefits at issue here. See Doc. #21 at 1. Plaintiff, as the ALJ
recognized in his RFC determination, had “a hard time standing
for long periods of time and even discomfort sitting, forcing
[him] to change positions constantly.” Id. The ALJ’s RFC
determination confirmed that plaintiff “requires the ability to
15

sit and stand at will and would be able to continue to perform a
job when standing.” Tr. 130. The ALJ asked the VE whether the
use of a cane would impact his analysis of plaintiff’s ability
to perform various jobs, and the VE responded that plaintiff
would not be able to perform any job previously identified by
the VE if he required use of a cane. See Tr. 178-79.
The Commissioner argues: “Nothing in the record supports
that Plaintiff used a cane prior to June 1, 2017, the end of the
period at issue [for plaintiff’s SSI application]. Accordingly,
Plaintiff’s argument regarding a cane is unsupported and without
merit.”7 Doc. #29-1 at 12.
As to the record before the ALJ, the Commissioner is
correct. Plaintiff’s own functional report and his testimony at
the hearing specified that he did not use a cane.8 See Tr. 156,

The Commissioner, throughout her motion to affirm, refers to
June 1, 2017, as the date of the ALJ’s decision. The ALJ issued
his decision on June 6, 2017. See Tr. 136. This discrepancy does
not impact the Court’s analysis.
7

The record discloses a single discrepancy on this point. After
plaintiff denied using a cane, see Tr. 158, and stated that he
would be prescribed a cane in the future, see Tr. 178, plaintiff
stated “[y]es, I do need my cane[,]” Tr. 179. Plaintiff points
to no medical records documenting prior use of a cane. He states
in his motion that he was prescribed a cane in March 2017, see
Doc. #21 at 1, and he had indicated in his daily activities
report that he did not use a cane as of December 15, 2015, see
Tr. 371. Records dated June 21, 2016, also confirm that
plaintiff did not use any assistive device. See Tr. 661. The ALJ
is empowered to resolve ambiguities in the record, and his
resolution is entitled to deference. See Cage v. Comm’r of Soc.
Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“[W]e defer to the
8

16

371, 661. Nothing in plaintiff’s motion suggests that he used a
cane prior to March 2017, and the ALJ acknowledged that
plaintiff would likely need a cane in the future. See Tr. 131132. Because plaintiff’s argument regarding his need for a cane
beginning in March 2017 relates to his abilities prior to June
6, 2017, but not to treatment before his last insured date of
December 31, 2016, plaintiff’s argument related to his use of a
cane is relevant to plaintiff’s SSI application only.
The Commissioner’s argument does not discuss the record of
plaintiff’s treatment with Dr. Koliani, plaintiff’s primary
physician, dated April 14, 2017, which was submitted to the
Appeals Council by plaintiff’s attorney. See Tr. 93. The Appeals
Council advised plaintiff: “You submitted medical records from
Leonardi Koliani, M.D., dated December 9, 2016 through March 9,
2018 (43 pages)[.] ... We find this evidence does not show a
reasonable probability that it would change the outcome of the
decision. We did not consider and exhibit this evidence.” Tr. 2.
The April 14, 2017, record, and subsequent records
documenting treatment through March 2018, show that plaintiff

Commissioner’s resolution of conflicting evidence.”); Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts
in the medical evidence are for the Commissioner to resolve.”).
Accordingly, the Court finds that the ALJ did not err, based on
the evidence before him, in concluding that plaintiff might need
a cane in the future, but did not need one at the time.
17

needed a cane because of his back pain. See Tr. 85, 89, 93, 95,
98. These records support plaintiff’s argument that he used a
cane before June 6, 2017. The record contains no indication that
plaintiff’s use of a cane was, or was anticipated to be,
temporary. Indeed, Dr. Koliani’s records, submitted to the
Appeals Council, document that plaintiff used his cane for at
least eleven months,9 from April 2017 through March 2018.10 See
Tr. 85, 89, 93, 95, 98.
In light of the VE’s testimony stating that plaintiff would
be unable to perform any identified job if he also required use
of a cane, see Tr. 178-79, records documenting that plaintiff

Plaintiff argues that he needed a cane beginning in March 2017.
See Doc. #21 at 1. While the April 14, 2017, record does not
indicate the first date on which plaintiff needed a cane, see
Tr. 93, there does not appear to be any evidence in the
administrative record documenting plaintiff’s need for a cane on
a specific earlier date.
9

To be considered disabled under the Act and therefore entitled
to benefits, plaintiff must demonstrate that he is unable to
work after a date specified “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 12 months.” 42
U.S.C. §423(d)(1)(A) (emphasis added). If plaintiff had only
needed a cane for a short period of time, the Appeals Council’s
error might have been rendered harmless. The duration of
plaintiff’s well-documented need for a cane provides additional
support for the conclusion “there is a reasonable probability
that the additional evidence would change the outcome of the
decision[,]” 20 C.F.R. §§404.970(a)(5), 416.1470(a)(5), even
though the later records were not retrospective in nature.
10

18

needed to use a cane prior to the ALJ’s June 6, 2017, decision
were relevant, material, and had a reasonable probability of
changing the outcome of the ALJ’s decision. It is also clear
that an “unavoidable circumstance beyond [plaintiff’s] control
prevented” plaintiff from submitting the evidence to the ALJ. 20
C.F.R. §§404.970(b)(3), 416.1470(b)(3). The deadline for
submitting evidence to the ALJ closed on March 2, 2017. See Tr.
179. That was before the April 14, 2017, appointment occurred,
and it was therefore impossible for plaintiff to submit the
records of that appointment before March 2, 2017. Accordingly,
the Appeals Counsel erred in not considering these records.
The Appeals Council’s failure to consider evidence that
meets the criteria of 20 C.F.R. §404.970(a)(5) and
§416.1470(a)(5) warrants remand. See Staib v. Colvin, 254 F.
Supp. 3d 405, 408 (E.D.N.Y. 2017) (“[T]he Appeals Council also
failed to consider relevant evidence. This also requires a
remand for further proceedings.”); McIntire, 809 F. Supp. 2d at
21 (When the Appeals Council fails in its duty to consider new
evidence as required by the Regulations, “the proper course for
the reviewing court is to remand the case for reconsideration in
light of the new evidence.”); see also Adams v. Colvin, No.
3:15CV1061(WIG), 2016 WL 5334646, at *3 (D. Conn. Sept. 22,
2016); Orriols, 2015 WL 5613153, at *5. Additionally, “the
Appeals Council’s cursory, formulaic rejection of the evidence
19

... without any legal or factual reasoning, is insufficient.”
McCarthy v. Colvin, No. 3:16CV01716(JGM), 2018 WL 495678, at *15
(citation and quotation marks omitted). Therefore, remand for
reconsideration of plaintiff’s SSI application is appropriate.
See Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D. Conn. 2009).
VI.

CONCLUSION
Plaintiff’s SSI claim should be re-evaluated in light of

the evidence documenting that plaintiff needed to use a cane
before June 6, 2017. On remand the ALJ shall conduct a new,
full, hearing on plaintiff’s SSI application only. Plaintiff
shall also be afforded the opportunity to submit any additional
evidence relevant to his SSI application in advance of the
hearing. The Court offers no opinion on whether the ALJ should
or will find plaintiff disabled on remand.
For the reasons set forth herein, plaintiff’s Motion to
Reverse or Remand [Doc. #21] is GRANTED, to the extent it seeks
remand for further proceedings related to plaintiff’s
application for SSI benefits, and defendant’s Motion for an
Order Affirming the Decision of the Commissioner [Doc. #29] is
DENIED.
SO ORDERED at New Haven, Connecticut, this 9th day of May,
2019.
_____/s/________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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