Peters v. Colvin
MEMORANDUM DECISION AND ORDER dated 11/21/16 granting plaintiff's 13 Motion for Judgment on the Pleadings; denying the Commissioner's 14 Motion for Judgment on the Pleadings. Case is remanded for further proceedings in accordance with this opinion. ( Ordered by Judge Brian M. Cogan on 11/21/2016 ) *Forwarded for judgment. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RHONDA RASHAN PETERS,
: MEMORANDUM DECISION AND
- against : 15 Civ. 4834 (BMC)
CAROLYN W. COLVIN, Commissioner of
COGAN, District Judge.
Plaintiff seeks judicial review, pursuant to 2 U.S.C. § 405(g), of the decision of the
Commissioner of Social Security (the “Commissioner”) that she is not disabled, and thus not
entitled to disability benefits. The Administrative Law Judge found that plaintiff has severe
impairments consisting of status-post cervical cancer, depression, and history of substance abuse.
However, the ALJ further found that these impairments do not render her disabled. Following
the ALJ’s decision, plaintiff submitted additional medical evidence to the Appeals Council, but it
found that this evidence did not require reexamination of the ALJ’s decision.
This action is before me on the Commissioner’s and plaintiff’s cross-motions for
judgment on the pleadings. I hold that the additional evidence submitted to the Appeals Council
may cast a different light on this case, and therefore remand it for reconsideration in light of that
Plaintiff filed an application for supplemental security income on January 12, 2011. The
claim was initially denied and plaintiff filed a written request for a hearing. During a video-
hearing, plaintiff testified that she has been depressed since she was diagnosed with cervical
cancer. Plaintiff testified that she doesn’t cook or clean, she rarely shops, she doesn’t leave the
house often, and she can only walk one or two blocks. Plaintiff also testified that she gets panic
attacks two to three times a week. After two video-hearings, the ALJ issued a decision on
January 6, 2014, finding that plaintiff is not disabled.
Plaintiff’s Medical History
Plaintiff, who is currently thirty-five years old, was diagnosed with cervical cancer in
June 2010. In September 2010, plaintiff underwent lymph node sampling and a trachelectomy,
which is the surgical removal of the uterine cervix. Metastatic carcinoma was found in her left
external iliac node. Plaintiff was treated with pelvic radiation, intracavity brachytherapy, and
four cycles of chemotherapy. 1
The first evidence that plaintiff sought medical help for psychiatric problems is contained
in two Federation Employment & Guidance Service (“FEGS”) 2 forms from late 2011 and early
2012. One form, titled “Behavioral Health Services Adult Assessment & Psychosocial,” filled
out by E. Klemmer, a Licensed Clinical Social worker (“LCSW”), notes that plaintiff reported
depressive symptoms and anxiety. The second form, a “Psychiatric Evaluation” completed by
Christina Waniek, staff psychiatrist, notes that plaintiff reported that she has not felt well since
Plaintiff alleges that she has a disabling condition due to abdominal pain. There is evidence in the record that after
the second cycle of chemotherapy, plaintiff reported experiencing hot flashes and abdominal pain. Plaintiff’s
treating physician, Dr. Katherine Bell-McGuinn, advised that plaintiff’s hot flashes were likely due to early
menopause, secondary to her pelvic radiation. There is also evidence that plaintiff visited Kings County Hospital
Center emergency room twice in 2013, complaining of abdominal pain. The ALJ, however, found that plaintiff’s
claims were not credible because, after an evaluation in July 2011, Dr. Jerome Caiati found that plaintiff’s abdomen
was soft and non-tender and that her sitting, standing, walking, reaching, pushing, climbing, and bending abilities
were unrestricted. I find that the Commissioner’s decision that plaintiff’s abdominal pain is not a disabling
condition is supported by substantial evidence. This opinion, thus, focuses only on plaintiff’s claims of a disabling
condition due to her mental impairments.
FEGS is a nonprofit health and human services organization. The two FEGS forms only appear in the record
because they are included in plaintiff’s file from the Interborough Development & Consultation Center (“IDCC”).
There are no other reports or medical files from FEGS.
she was treated for cervical cancer. Ms. Waniek found that plaintiff’s orientation to time, place
and person, immediate retention and recall, recent and remote memory, and
concentration/attention span were good, but that her mood was constricted. Ms. Waniek
diagnosed plaintiff with major depressive disorder, mild.
Plaintiff also sought medical help for psychiatric problems at the Interborough
Development & Consultation Center (“IDCC”). The record contains a June 2013 intake
assessment of plaintiff conducted by Sofia Georgoulias, Psy. D. During the intake assessment,
plaintiff reported that she has been depressed ever since she was diagnosed with cancer and that
she had seen a therapist at FEGS for six months. Dr. Geogoulias found that plaintiff showed
symptoms of depressed mood, decreased energy, and grief. She diagnosed plaintiff with major
depressive disorder, mild, and recommended that plaintiff be seen for treatment at IDCC.
Consultative Psychiatric Evaluations
In connection with her disability claim, plaintiff underwent two consultative psychiatric
examinations by Christopher Flach, Ph. D. During the first evaluation in July 2011, plaintiff
described symptoms of depression, reported having anxiety attacks two to three times a week,
and admitted to occasional marijuana use. Dr. Flach reported the following results from the
mental status exam: (1) plaintiff’s speech was fluent and clear; (2) she had coherent and goal
directed thought processes; (3) her affect seemed depressed and anxious; (4) her mood seemed
dysthymic; (5) her attention and concentration were intact as she was able to perform simple
calculations and add by serial threes up to twenty-one; (6) her recent and remote memory skills
were intact as she was able to name three out of three objects immediately and two out of three
objects after five minutes, and repeat up to four digits backwards; and (7) her cognitive
functioning was average.
Based on these results, Dr. Flach found that plaintiff is able to follow simple instructions,
maintain a regular schedule, perform complex tasks independently, make appropriate decisions,
and adequately relate to others. Dr. Flach diagnosed her with depressive disorder, not otherwise
specified, and panic disorder without agoraphobia. He opined that plaintiff’s psychiatric
problems appear to mildly interfere with her ability to function on a daily basis.
When Dr. Flach evaluated plaintiff a second time, over two years later in October 2013,
his assessment of plaintiff was significantly different. After the October 2013 evaluation, Dr.
Flach reported that: (1) plaintiff’s speech sounded fluent and pressured; (2) her attention and
concentration appeared moderately impaired because she had a hard time adding by two’s let
alone three’s; (3) her recent and remote memory skills appeared significantly impaired as she
could recall three out of three objects immediately, but no objects after five minutes, and she had
a hard time repeating even two digits backwards; and (4) her cognitive functioning was felt to be
below average. In addition to a psychiatric evaluation, Dr. Flach also conducted an intelligence
evaluation and found that plaintiff’s IQ is 53.
Although Dr. Flach found that plaintiff was still able to follow simple instructions,
maintain a regular schedule, and make appropriate decisions, he found, after the 2013 evaluation,
that plaintiff has moderate to significant problems maintaining attention and concentration,
performing complex tasks, relating to others, and dealing with stress. Dr. Flach diagnosed
plaintiff with an intellectual disability disorder, not otherwise specified, and major depressive
disorder, moderate type. This time he opined that plaintiff’s psychiatric problems and
intellectual difficulties moderately to significantly interfere with her ability to function on a daily
The ALJ’s Findings
The ALJ found that plaintiff’s severe impairments consisting of status-post cervical
cancer, depression, and history of substance abuse do not meet or equal the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that plaintiff’s status-post cervical
cancer does not meet listing 13.23, for cancers of the female genital tract, because, after
undergoing surgery, the cancer has not returned. The ALJ also found that plaintiff’s mental
impairments do not meet or medically equal the criteria of listings 12.04, for affective disorders,
or 12.09, for substance addiction disorders, because they do not result in at least two of the
following: a marked restriction in activities of daily living; marked difficulties in maintaining
social functioning; marked difficulties in maintaining concentration, persistence, or pace; and
repeated episodes of decompensation, each of extended duration. Despite Dr. Flach’s opinion
that plaintiff’s ability to maintain attention and concentration, perform complex tasks, and relate
to others is moderately to significantly impaired, the ALJ found that plaintiff has only moderate
restrictions or limitations in activities of daily living, social functioning, and concentration,
persistence, or pace. He also found that plaintiff did not experience any episodes of
After finding that plaintiff’s severe impairments do not meet or equal a listing, the ALJ
found that plaintiff has the residual functional capacity to perform sedentary work, with certain
limitations, because even though plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, plaintiff’s statements as to the intensity,
persistence, and limiting effects of her depression and anxiety are not entirely credible. In
forming this opinion, the ALJ gave little weight to Dr. Flach’s opinions in his 2013 assessment
because he found that they are not supported by objective evidence and are inconsistent with the
record as a whole. The ALJ, however, gave some weight to Dr. Flach’s opinions in his 2011
assessment because he found that they are consistent with the record as a whole. Thus, the ALJ
found that although plaintiff is unable to perform her past relevant work as a music instructor and
cashier, she is not disabled because she is capable of making successful adjustments to other
work that exists in significant numbers in the national economy.
The Appeals Council’s Denial of Plaintiff’s Request for Review
After the unfavorable decision by the ALJ, plaintiff requested a review of the ALJ’s
decision by the Appeals Council. In her request to the Appeals Council, plaintiff submitted
additional medical evidence consisting of panic attack and anxiety questionnaires, dated
December 16, 2013, filled out by her treating physician, Dr. Sofia Georgoulias. In responding to
the questionnaires, Dr. Georgoulias reported that plaintiff has panic attacks twice a month that
are characterized by a sudden unpredictable onset of intense apprehension and impending doom
and that she has experienced such panic attacks with the same frequency since 2010. Dr.
Georgoulias also reported that plaintiff has generalized and persistent anxiety, accompanied by
vigilance and scanning, and has recurrent and intrusive recollections of a traumatic experience
that are a source of marked distress. Dr. Georgoulias opined that plaintiff has a marked
restriction in activities of daily living, marked difficulties in maintaining social functioning,
marked deficiencies in concentration, persistence or pace, and has had repeated episodes of
deterioration or decompensation in work-like settings.
The Appeals Council denied plaintiff’s request for review, finding that “this information
does not provide a basis for changing the Administrative Law Judge’s decision.” Thus, the
ALJ’s determination became the Commissioner’s final decision.
Plaintiff’s points of error in the instant case are that: (a) the ALJ’s finding that plaintiff’s
impairments do not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P,
Appendix 1, was substantively deficient; (b) the ALJ improperly assessed plaintiff’s credibility;
and (c) the record lacks substantial evidence to support the ALJ’s finding that plaintiff can
perform sedentary work, with limitations. I, however, find a separate error requiring remand.
Pursuant to 20 C.F.R. § 404.970(b), a claimant may submit additional evidence to the
Appeals Council. The Appeals Council will consider such evidence if it is “new,” “material,”
and “relates to the period on or before the date of the administrative law judge hearing decision.”
If the Appeals Council denies review of the ALJ’s decision, the new evidence “becomes part of
the administrative record for judicial review.” Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996);
see also, Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015); Noutsis v. Colvin, No. 15-cv5294, 2016 WL 552585, at *10 n.3 (E.D.N.Y. Feb. 10, 2016).
However, “[w]hen the new evidence submitted to the Appeals Council includes the
opinion of a treating physician . . . the Appeals Council must give the same degree of deference
to this opinion that an ALJ would be required to give.” Garcia v. Comm’r of Soc. Sec., No. 15
Civ. 6544, 2016 WL 5369612, at *3 (S.D.N.Y. Sept. 23, 2016) (citing Snell v. Apfel, 177 F.3d
128 (2d Cir. 2015)); see also Collazo v. Colvin, No. 13 Civ. 5758, 2015 WL 9690324, at *13
(S.D.N.Y. Dec. 22, 2015) (noting that the Appeals Council is bound by the treating physician
rule); Knepple-Hodyno v. Astrue, No. 11-cv-443, 2012 WL 3930442, at *9 (E.D.N.Y. Sept. 10,
2012) (“When new materials are submitted from treating physicians, the Appeals Council is
obligated to provide an explanation for its decision not to afford controlling weight to an
assessment apparently provided by Plaintiff’s treating physician.”) (internal quotation marks and
citations omitted). Under the treating physician rule, the Commissioner must give a treating
physician’s opinion “‘controlling weight’” regarding the nature and severity of impairments if
her opinion is “‘well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in . . . [the claimant’s] case
record.’” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. §
404.1527(c)(2)). Even when a treating physician’s opinion is not entitled to controlling weight,
“the regulations require the ALJ to consider several factors in determining how much weight it
should receive.” Id. (citing 20 C.F.R. § 404.1527(c)(2)). After considering the required factors,
the ALJ must “comprehensively set forth [his] reasons for the weight assigned to a treating
physician’s opinion.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). “Failure to provide
‘good reasons’ for not crediting the opinion of a claimant’s treating physician is a ground for
remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496,
505 (2d Cir. 1998)).
Here, the Appeals Council was required to consider the panic attack and anxiety
questionnaires plaintiff submitted because they met all three requirements for the consideration
of additional evidence. First, the evidence is new because Dr. Georgoulias’ opinion as to the
seriousness of plaintiff’s anxiety and depression was not part of the record in front of the ALJ.
Second, the evidence is material because Dr. Georgoulias’ opinions weigh directly on whether
plaintiff has the necessary marked restrictions to meet the requirements of a listing in 20 CFR,
Part 404, Subpart P, Appendix 1. Third, the questionnaires relate to the relevant time period
because they are dated prior to the ALJ’s decision – the ALJ’s decision is dated January 6, 2014
and the questionnaires are dated December 16, 2013 – and are retrospective concerning
plaintiff’s symptoms beginning in 2010.
Because the additional evidence was an opinion by plaintiff’s treating physician, the
Appeals Council was required to consider the evidence under the treating physician rule.
Although the Appeals Council stated that it considered the additional evidence, it provided no
explanation for why it rejected Dr. Georgoulias’ opinion on plaintiff’s condition and it failed to
set forth the weight it assigned to her opinion. It simply stated that it found that such information
did not provide a basis for overturning the ALJ’s decision. The Appeals Council, thus, failed to
appropriately consider and weigh Dr. Georgoulias’ opinion. See Collazo v. Colvin, No. 13 Civ.
5758, 2015 WL 9690324, at *13 (S.D.N.Y. Dec. 22, 2015) (finding that the Appeal Council’s
boilerplate statement that it reviewed the additional evidence did not satisfy the regulations’
requirements for consideration of a physician’s opinion).
Therefore, the case is remanded for consideration in light of the additional evidence. See
Garcia v. Comm’r of Soc. Sec., No. 15 Civ. 6544, 2016 WL 5369612 (S.D.N.Y. Sept. 23, 2016)
(remanding for further proceedings where the Appeals Council failed to appropriately consider a
treating physician’s opinion); Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D. Conn. 2009)
(holding that when the Appeals Council fails to consider new and material evidence, “the proper
course for the reviewing court is to remand the case for reconsideration in light of the new
evidence.”). On remand, the Commissioner should specifically address the new evidence in
accordance with the treating physician rule, as discussed above.
Specifically, the Commissioner should consider whether plaintiff’s mental impairments
meet or equal a listing in 20 C.F.R Part 404, Subpart P, Appendix 1, in light of Dr. Georgoulias’
opinion. Although the determination of whether plaintiff meets or equals a listing is reserved to
the Commissioner, the ALJ must still consider the physician’s opinion regarding the criteria for a
listing. See 20 C.F.R. § 404.1527(d)(2); Hendricks v. Comm’r of Soc. Sec., 452 F. Supp. 2d
194, 199 (W.D.N.Y. Sept. 19, 2006); Torres v. Colvin, No. 12 Civ. 6527, 2014 WL 241061
(S.D.N.Y. Jan. 22, 2014). The ALJ found that plaintiff did not have marked restrictions in at
least two of the four categories in “Paragraph B”, required for listings of mental disorders.
However, Dr. Georgoulias’ opinion is that plaintiff has marked restrictions in all four of the
categories, which corroborates Dr. Flach’s opinion that plaintiff’s psychiatric problems
moderately to significantly interfere with her ability to function on a daily basis. Thus, in light
of Dr. Flach’s and Dr. Georgoulias’ opinions, the Commissioner may find that plaintiff’s mental
impairments meet or medically equal a listing.
On remand, the Commissioner should also consider whether plaintiff has the residual
functional capacity to perform sedentary work, with limitations, in light of Dr. Georgoulias’
opinion. The ALJ previously found that plaintiff could perform sedentary work in part because
the record did not support her allegations about the intensity, persistence, and limiting effects of
her symptoms. In reaching this conclusion, the ALJ gave little weight to Dr. Flach’s opinions in
his 2013 evaluation because he found that they were inconsistent with the record as a whole.
However, when Dr. Georgoulias’ opinion is added to the record, Dr. Flach’s opinions in his 2013
evaluation should be afforded greater weight because they are supported by Dr. Georgoulias. In
turn, the record better supports plaintiff’s claims about the persistence, intensity, and duration of
her symptoms. Thus, when Dr. Georgoulias’ opinion is properly considered, the Commissioner
may very well find that plaintiff’s claims are credible and that she is not capable of performing
Plaintiff’s motion for judgment on the pleadings is granted, the Commissioner’s motion
is denied, and this case is remanded for further proceedings in accordance with this opinion. The
Clerk is directed to enter judgment accordingly.
Digitally signed by
Brian M. Cogan
Dated: Brooklyn, New York
November 21, 2016
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?