Maloney v. Colvin
MEMORANDUM of DECISION & ORDER: SO ORDERED that the Plaintiff's motion for a judgment on the pleadings pursuant to Rule 12(c) is granted, and the Commissioner's motion for a judgment on the pleadings pursuant to Rule 12(c) is denied. This m atter is remanded back to the Commissioner for administrative proceedings consistent with this opinion. On remand, the ALJ is to consider the evidence that was erroneously rejected by the Appeals Council. The Clerk of the Court is respectfully directed to close this case. Ordered by Judge Arthur D. Spatt on 1/12/2018. (Florio, Lisa)
1/12/2018 11:43 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION & ORDER
-againstNANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Olinsky Law Group
Attorneys for the Plaintiff
300 South State St
Syracuse, NY 13202
Howard D. Olinsky, Esq., Of Counsel
United States Attorney’s Office for the Eastern District of New York
Attorneys for the Defendant
271 Cadman Plaza East
Brooklyn, NY 11201
Matthew Silverman, Assistant United States Attorney
SPATT, District Judge:
The Plaintiff Joseph Maloney (the “Plaintiff”) commenced this this civil action pursuant to
the Social Security Act, 42 U.S.C. § 405 et seq. (the “Act”), challenging a final determination by
the Defendant, Nancy A. Berryhill (the “Defendant” or the “Commissioner”), the acting
commissioner of the Social Security Administration (the “Administration”) at the time of filing,
that she is ineligible to receive Social Security disability insurance benefits.
Presently before the Court are the parties’ cross motions, pursuant to Federal Rule of Civil
Procedure (“FED. R. CIV. P.” or “Rule”) 12(c) for a judgment on the pleadings. For the reasons
that follow, the Plaintiff’s motion is granted, and the Commissioner’s motion is denied.
On April 8, 2013, the Plaintiff applied for Title II Social Security disability insurance
benefits, alleging that he had been disabled since November 1, 2011 due to anxiety, bipolar
depression, sleep apnea, a knee impairment, gout, and high blood pressure.
On June 25, 2013, his claim was denied, and the Plaintiff requested a hearing thereafter.
On July 23, 2014, Administrative Law Judge Brian J. Crawley (the “ALJ”) conducted a
hearing, during which the Plaintiff was represented by counsel. The ALJ issued a written opinion
on July 23, 2014 denying the Plaintiff’s claim for benefits.
On October 7, 2014, the Plaintiff requested that the Appeals Council review the ALJ’s
decision. In support of his petition for review, he supplied further evidence to the Appeals Council.
The Appeals Council denied the Plaintiff’s request for review on May 9, 2016, at which point the
ALJ’s decision became the final decision of the Commissioner.
The Plaintiff commenced this action on July 13, 2016, and filed the instant motion for a
judgment on the pleadings on February 9, 2017. The Plaintiff contends that the Appeals Council
erred in failing to consider new and material evidence supporting remand; and that the ALJ erred
in failing to account for the Plaintiff’s obesity and gout and his decision is therefore not supported
by substantial evidence.
For purposes of these motions, familiarity with the underlying administrative record is
presumed. The Court’s discussion of the evidence will be limited to the specific challenges
presently raised by the Plaintiff. In this regard, references to the record are denoted as “R.”
A. The Applicable Law
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. See Lowry v. Astrue, 474 F. App’x 801, 805 n.2 (2d Cir. 2012)
(applying and referencing version of regulation in effect when ALJ adjudicated plaintiff’s claim);
see also Michael Barca, Plaintiff, v. Comm’r of Soc. Sec., Defendant., No. 2:16-CV-187, 2017 WL
3396416, at *8 (D. Vt. Aug. 8, 2017) (applying the regulations in effect when the plaintiff filed his
application); Alvarez v. Comm’r of Soc. Sec., No. 14CV3542(MKB), 2015 WL 5657389, at *11
n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he Court considers the ALJ’s decision in light of the
regulation in effect at the time of the decision.” (citing Lowry, 474 F. App’x at 805 n.2));
The Act defines the term “disability” to mean an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . . which
has lasted or can be expected to last for a continuous period of not less than 12 months.” Burgess
v. Astrue, 537 F.3d 117, 119 (2d Cir. 2008) (quoting 42 U.S.C. § 423(d)(1)(A)) (quotation marks
omitted). In addition, “[t]he impairment must be of ‘such severity that [the claimant] is not only
unable to do his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy.’” Shaw
v. Chater, 221 F.3d 126, 131–32 (2d Cir. 2000) (quoting 42 U.S.C. § 423(d)(2)(A)).
In determining whether a claimant is disabled, the Commissioner is required to apply the
five-step sequential process set forth in 20 C.F.R. § 404.1520. Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999). The claimant bears the burden of proving the first four steps, but then the burden
shifts to the Commission at the fifth step. Rosa, 168 F.3d at 77. First, the Commissioner considers
whether the claimant is presently working in substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i); Rosa, 168 F.3d at 77. If the claimant is not so engaged, the Commissioner next
considers whether the claimant has a “severe impairment” that significantly limits her physical or
mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii); Rosa, 168 F.3d at 77. If
the severity requirement is met, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment that is listed in Appendix 1 of the regulations, or is equal to a listed
impairment. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1; Rosa,
168 F.3d at 77. If the claimant has such an impairment, there will be a finding of disability. If
not, the fourth inquiry is to determine whether, despite the claimant’s severe impairment, the
claimant’s residual functional capacity allows the claimant to perform his or her past work. 20
C.F.R. § 404.1520(a)(4)(iv); Rosa, 168 F.3d at 77. Finally, if a claimant is unable to perform past
work, the Commissioner then determines whether there is other work, such as “light work”
discussed infra, that the claimant could perform, taking into account, inter alia, the claimant's
residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v);
Rosa, 168 F.3d at 77.
B. The Standard of Review
“Judicial review of the denial of disability benefits is narrow” and “[t]he Court will set
aside the Commissioner’s conclusions only if they are not supported by substantial evidence in the
record as a whole or are based on an erroneous legal standard.” Koffsky v. Apfel, 26 F. Supp. 475,
478 (E.D.N.Y. Nov. 16, 1998) (Spatt, J.) (citing Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998)).
Thus, “the reviewing court does not decide the case de novo.” Pereira v. Astrue, 279
F.R.D. 201, 205 (E.D.N.Y. 2010). Rather, “the findings of the Commissioner as to any fact, if
supported by substantial evidence, are conclusive,” id., and therefore, the relevant question is not
“whether there is substantial evidence to support the [claimant’s] view”; instead, the Court “must
decide whether substantial evidence supports the ALJ’s decision. ” Bonet v. Colvin, 523 F. App’x
58, 59 (2d Cir. 2013) (emphasis in original). In this way, the “substantial evidence” standard is
“very deferential” to the Commissioner, and allows courts to reject the ALJ’s findings “only if a
reasonable factfinder would have to conclude otherwise.” Brault v. SSA, 683 F.3d 443, 448 (2d
Cir. 2012) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994) (emphasis in original)).
This deferential standard applies not only to factual determinations, but also to inferences and
conclusions drawn from such facts.” Pena v. Barnhart, No. 01-cv-502, 2002 U.S. Dist. LEXIS
21427, at *20 (S.D.N.Y. Oct. 29, 2002) (citing Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.
In this context, “[s]ubstantial evidence means ‘more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Burgess, 537 F.3d at 128 (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). An
ALJ’s findings may properly rest on substantial evidence even where he or she fails to “recite
every piece of evidence that contributed to the decision, so long as the record ‘permits [the Court]
to glean the rationale of [his or her] decision.’” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir.
2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). This remains true “even
if contrary evidence exists.” Mackey v. Barnhart, 306 F. Supp. 337, 340 (E.D.N.Y. 2004) (citing
DeChirico v. Callahan, 134 F.3d 1177, 1182 (2d Cir. 1998), for the proposition that an ALJ’s
decision may be affirmed where there is substantial evidence for both sides).
The Court is prohibited from substituting its own judgment for that of the Commissioner,
even if it might justifiably have reached a different result upon a de novo review. See Koffsky, 26
F. Supp. at 478 (quoting Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
C. Application to the Facts
1. As to whether the Appeals Council Erred in Failing to Consider New Evidence
from the Plaintiff’s Treating Physician
a. The New Evidence Submitted to the Appeals Council
When the Plaintiff requested a review of the ALJ’s decision by the Appeals Council, he
provided treatment records and a medical source statement dated March 31, 2015 from his treating
physician, Dr. Karan Kumar (“Dr. Kumar”), a psychiatrist. Dr. Kumar began treating the Plaintiff
on July 11, 2013.
The Plaintiff supplied Dr. Kumar’s treatment records from June 2014 through December
2014 to the appeals council. Throughout the time during which Dr. Kumar treated him, the
Plaintiff took Klonopin, Effexor, and Lithium. In June and July of 2014, Dr. Kumar noted that the
Plaintiff exhibited depressed mood and anxiety; organized thought process; fair judgment; and fair
attention span and concentration. During the monthly examinations from August 2014 through
December 2014, Dr. Kumar found that although the Plaintiff was depressed and anxious, he had
good insight, judgment and attention/concentration; intact memory; normal appearance, motor
activity, perception, and flow of thought; and appropriate dress, and behavior. In late 2014, Dr.
Kumar found that the Plaintiff had depression mood swings with his insomnia, and some anxiety
In his medical source statement dated March 31, 2015, Dr. Kumar said that he had treated
the Plaintiff once a month with psychotropic medication management and therapy. He noted that
the Plaintiff displayed an depressed mood and anxious affect. He assessed a guarded prognosis
for the Plaintiff’s bipolar disorder.
Dr. Kumar opined that the Plaintiff would be unable to meet competitive standards in his
abilities to: understand and remember detailed instructions; carry out detailed instructions; set
realistic goals or make plans independently of others; deal with stress of semiskilled and skilled
work; perform at a consistent pace without an unreasonable number and length of rest periods; get
along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes;
respond appropriately to changes in a routine work setting; deal with normal work stress; and be
aware of normal hazards and take appropriate precautions.
He believed that the Plaintiff abilities were limited but satisfactory in adhering to basic
standards of neatness and cleanliness; traveling to unfamiliar places; using public transportation;
remembering work-like procedures; understanding and remembering very simple instructions;
carrying out very short and simple instructions; maintaining attention for two hours segments;
maintaining regular attendance and being punctual within customary, usually strict tolerances; and
asking simple questions or requesting assistance.
Dr. Kumar noted that in his opinion, the Plaintiff was seriously limited but not precluded
from interacting socially with the general public; maintaining socially appropriate behavior;
sustaining an ordinary routine without special supervision; working in coordination or proximity
to others without being unduly distracted; making simple work-related decisions; completing a
normal workday and workweek without interruptions from psychologically based symptoms; and
accepting instructions and responding appropriately to criticism from supervisors.
Dr. Kumar identified several symptoms of bipolar disorder including disorientation to time
and place; perceptual or thinking disturbances; motor tension; flight of ideas; and deeply ingrained
maladaptive patterns of behavior. He reported that the Plaintiff would require four or more
absences per month due to his impairments.
Dr. Kumar replied “yes” to the question “[h]as your patient’s impairment lasted or can it
be expected to last at least twelve months?” Finally, he noted that the Plaintiff cannot manage
benefits in his own best interest.
In denying the Plaintiff’s request for review of the ALJ’s decision, the appeals council
stated that it:
looked at a medical source statement dated March 31, 2015, completed by Karan
Kumar, M.D., and treatment notes from Dr. Kumar, covering a period beginning
January 7, 2015 through April 1, 2015. The Administrative Law Judge decided
your case through September 5, 2014. This new information is about a later time.
Therefore, it does not affect the decision about whether you were disabled
beginning on or before September 5, 2014.
(R. at 2). Despite the fact that the preceding paragraph only mentions the treatment records from
January through April 2015, the Appeals Council stated that it “considered . . . the additional
evidence listed on the enclosed Order of Appeals Council.” (Id.). The “AC Exhibits List” includes
“treatment notes of Karan Kumar, M.D., covering a period beginning June 17, 2014, through
December 10, 2014.” (R. at 5).
b. The Relevant Law
Under 20 C.F.R. §§ 404.970(b) and 416.1470(b), a claimant may submit new evidence to
the Appeals Council if it is “new,” “material,” and “relates to the period on or before the [ALJ’s]
hearing decision.” In order to qualify as “material” evidence, the new evidence submitted to the
appeals council must be “both (1) relevant to the claimant's condition during the time period for
which benefits were denied and (2) probative. 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.” Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (quoting
Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (internal quotation marks omitted)).
If the Appeals Council denies review of the ALJ’s decision, the new evidence “becomes
part of the administrative record for judicial review.” See Perez v. Chater, 77 F.3d 41, 45 (2d
c. Application to the Facts
The Plaintiff argues that the medical source statement, though it was made after the relevant
period, gave a retrospective opinion that the Appeals Council should have considered.
Furthermore, the Plaintiff states that the treatment records both before and after the ALJ’s decision
support Dr. Kumar’s opinion. In opposition, the Government contends that the Appeals Council
did not err in failing to consider the evidence provided by the Plaintiff because the medical source
statement was made six months after the relevant period; and because the medical records from
the relevant period were cumulative and did not create a reasonable possibility that the
Commissioner would have decided the Plaintiff’s application differently. The Court finds that the
Appeals Council erred in failing to consider Dr. Kumar’s retrospective opinion.
Although Dr. Kumar’s medical opinion was given almost seven months after the ALJ’s
decision, in the Court’s opinion, it was a retrospective opinion that spoke to the Plaintiff’s
condition during the relevant period. Dr. Kumar had treated the Plaintiff for almost two years,
and his treatment notes after the relevant period mirror his notes from the relevant period.
Therefore, he was able to state whether the Plaintiff’s impairment had lasted at least twelve
months, and he said just that. Accordingly, it constituted a retrospective opinion.
The Second Circuit has repeatedly held that retrospective opinions from treating physicians
can and should be considered by the Commissioner when it is based upon medically accepted
clinical diagnostic techniques. See Shaw, 221 F.3d at 133 (finding that the district court improperly
rejected a treating physician’s retrospective opinion); Perez, 77 F.3d at 48 (“A treating physician’s
retrospective opinion may be probative when based upon clinically acceptable diagnostic
techniques and not contradicted by the other medical evidence.” (internal citation omitted));
Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 862 (2d Cir. 1990) (reversing the
Secretary’s finding of no disability when no medical opinion in evidence contradicted one doctor’s
retrospective diagnosis finding a disability); Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981)
(“The courts have held that the treating-physician rule applies to retrospective diagnoses. . . . A
diagnosis of a claimant’s condition may properly be made even several years after the actual onset
of the impairment.” (internal citations, quotation marks, and alterations omitted)).
In fact, courts have found that such retrospective opinions should be given controlling
weight where “no medical opinion in evidence contradict[s][a] doctor’s retrospective diagnosis
finding a disability.” Rivera v. Sullivan, 923 F.2d 964, 968 (2d Cir. 1991); see also Campbell v.
Barnhart, 178 F. Supp. 2d 123, 134–35 (D. Conn. 2001) (holding that the retrospective opinion of
a doctor who is currently treating a claimant is “entitled to significant weight” even though the
doctor did not treat the claimant during the relevant period); Gercke v. Chater, 907 F. Supp. 51,
52 (E.D.N.Y. 1995) (holding that, “[e]ven if the treating physician’s opinion is retrospective, the
opinion is binding on the ALJ unless contradicted by other medical evidence or overwhelmingly
compelling non-medical evidence”).
While that is not the case here because Dr. Kumar’s opinion was contradicted by two other
medical opinions, “such a diagnosis must be evaluated in terms of whether it is predicated upon
medically accepted clinical diagnostic techniques and whether considered in light of the entire
record, it establishes the existence of a[n] . . . impairment” before the requisite onset date.
Dousewicz, 646 F.2d at 775. There is no dispute that Dr. Kumar’s opinion was based on medically
accepted clinical diagnostic techniques, but the Appeals Council failed to evaluate the opinion in
light of the entire record.
In sum, the case law shows that a retrospective opinion of a treating physician is highly
probative, and the mere fact that it was made months after the relevant period is insufficient reason
to disregard it. Therefore, the Appeals Council improperly disregarded Dr. Kumar’s opinion, and
the case must be remanded for the ALJ to consider this relevant medical opinion of the Plaintiff’s
While the Commissioner now argues that the Appeals Council properly rejected it because
it did not create a reasonable possibility that the ALJ would have decided the case differently, the
Court disagrees, and notes that the Appeals Council did not give that reason for rejecting Dr.
Kumar’s opinion. A reviewing court “may not accept appellate counsel’s post hoc rationalizations
for agency action.” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (quoting Burlington Truck
Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S. Ct. 239, 9 L. Ed. 2d 207 (1962)).
Dr. Kumar was the Plaintiff’s treating physician, and his treatment notes supported his
medical opinion. While his opinion was contradicted by the opinions of Dr. Herman, the state
consultative psychiatric examiner, and Dr. Lopez, the state agency psychological consultant, Dr.
Kumar’s opinion creates a reasonable possibility that the ALJ would have decided the case
differently because treating physician’s opinions are afforded controlling weight when they are
supported by substantial evidence. See 20 C.F.R. § 404.1527(c)(2) (stating that controlling weight
must be given to “a treating source’s medical opinion on the issue(s) of the nature and severity” of
the claimant’s impairments if the medical opinion is “well supported by . . . other substantial
evidence . . . .”).
Therefore, the Appeals Council improperly rejected the retrospective opinion of Dr.
Kumar. The case must be remanded back to the Commissioner because the Appeals Council failed
to consider this new and material evidence, and because weight must be afforded to the medical
opinion of Dr. Kumar, the Plaintiff’s treating physician. See Wilbon v. Colvin, No. 15-CV-756FPG, 2016 WL 5402702, at *5 (W.D.N.Y. Sept. 28, 2016) (stating that if the Appeals Council fails
to consider material evidence relating to the relevant time period, “the proper course for the
reviewing court is to remand for reconsideration in light of the new evidence.” (quoting McIntire
v. Astrue, 809 F. Supp. 2d 13, 21 (D. Conn. 2010) (citing Milano v. Apfel, 98 F. Supp. 2d 209, 216
(D. Conn. 2000))); Seifried ex rel. A.A.B. v. Comm’r of Soc. Sec., No. 6:13-CV-0347 LEK/TWD,
2014 WL 4828191, at *4–5 (N.D.N.Y. Sept. 29, 2014) (same); Randazzo v. Barnhart, 332 F. Supp.
2d 517, 521 (E.D.N.Y. 2004) (Spatt, J.) (stating that documents that were not considered by the
Commissioner can only be analyzed “as a basis for remand”); see also Snell, 177 F.3d at 133
(“Failure to provide good reasons for not crediting the opinion of a claimant’s treating physician
is a ground for remand.” (quoting Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998) (internal
quotation marks omitted))); Schaal, 134 F.3d at 504 (“[O]n this record, we cannot say with
certainty what weight should be assigned . . . to the opinion of plaintiff's treating physician, or
whether further clarification of the record with these regulations in mind might alter the weighing
of the evidence.”); Sutherland v. Barnhart, 322 F.Supp.2d 282, 289 (E.D.N.Y. 2004) (“It is not
the place of the district court to weigh the credibility of complex, contradictory evidence, or
reconsider anew whether the claimant is disabled.” (citing Schaal, 134 F.3d at 500)).
For the same reasons, the Court need not address the Plaintiff’s second contention, that the
ALJ’s RFC determination was not supported by substantial evidence. As the case is being
remanded for further administrative proceedings, the ALJ will necessarily have to reassess the
Plaintiff’s RFC in light of Dr. Kumar’s retrospective opinion, which he did not have when he
issued his initial decision. See Staib v. Colvin, 254 F. Supp. 3d 405, 409 (E.D.N.Y. 2017) (Spatt,
J.) (“Because the record before the ALJ was so deficient and flawed, the Court cannot engage in
any meaningful analysis of whether he correctly applied the treating physician rule, whether his
decision is supported by substantial evidence, or whether he properly weighed the Plaintiff's
credibility.” (collecting cases)).
Accordingly, the Plaintiff’s motion for a judgment on the pleadings pursuant to Rule 12(c)
For the reasons stated above, the Plaintiff’s motion for a judgment on the pleadings
pursuant to Rule 12(c) is granted, and the Commissioner’s motion for a judgment on the pleadings
pursuant to Rule 12(c) is denied. This matter is remanded back to the Commissioner for
administrative proceedings consistent with this opinion. On remand, the ALJ is to consider the
evidence that was erroneously rejected by the Appeals Council.
The Clerk of the Court is respectfully directed to close this case.
Dated: Central Islip, New York
January 12, 2018
____/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge
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