Surrusco v. Colvin

Filing 18

ORDER denying 11 Motion for Judgment on the Pleadings; granting 14 Motion to Remand. For the reasons set forth herein, plaintiff's motion for judgment on the pleadings is denied, and the Commissioner's motion for remand is granted. The case is remanded to the ALJ for further proceedings consistent with this Memorandum and Order, including a rehearing. SO ORDERED. Ordered by Judge Joseph F. Bianco on 7/17/2017. (Zbrozek, Alex)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-4649 (JFB)
_____________________

CHRISTINE M. SURRUSCO,
Plaintiff,
VERSUS

NANCY A. BERRYHILL 1,
Defendant.
___________________
MEMORANDUM AND ORDER
July 17, 2017
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff
Christine
M.
Surrusco
(“plaintiff”) commenced this action, pursuant
to 42 U.S.C. § 405(g) of the Social Security
Act (“SSA”), challenging the final decision
of the Commissioner of Social Security (the
“Commissioner”)
denying
plaintiff’s
application for disability insurance benefits
for the period from July 8, 2014 through
October 14, 2015. An Administrative Law
Judge (“ALJ”) found that plaintiff had the
residual functional capacity to perform
medium work, of which there were a
significant number of jobs in the national
economy, and, therefore, that plaintiff was
not disabled. The Appeals Council denied
plaintiff’s request for review.

1

Plaintiff commenced this action against Carolyn W.
Colvin, who was then the Acting Commissioner of
Social Security. Pursuant to Federal Rule of Civil
Procedure 25(d), the Clerk of the Court is directed to
substitute Nancy A. Berryhill, who now occupies that
position, as defendant in this action.

Plaintiff now moves for judgment on the
pleadings pursuant to Federal Rule of Civil
Procedure 12(c). The Commissioner has
cross-moved for remand and a rehearing
before the ALJ. For the reasons set forth
below, plaintiff’s motion is denied, and the
Commissioner’s motion is granted.
I. PROCEDURAL BACKGROUND
The following summary of the relevant
procedural history is based on the
Administrative Record (“AR”) developed by
the ALJ. (ECF No. 10.) On September 19,
2014, plaintiff filed an application for
disability insurance benefits, alleging that she
was disabled beginning on July 8, 2014. (AR

The Court has fully considered all of the
parties’ submissions, as well as the
Administrative Record.

118, 191-92.) The claim was denied (id. at
118, 135-46), and plaintiff subsequently
requested a hearing before an ALJ (id. at 14849). On July 22, 2015, plaintiff appeared
with counsel and testified at the hearing. (Id.
at 27-77.) The ALJ issued an unfavorable
decision denying plaintiff’s claim on October
14, 2015. (Id. at 10-26.) The Appeals
Council denied plaintiff’s request for review
of the ALJ’s decision on June 23, 2016,
making the ALJ’s October 14, 2015 decision
the final decision of the Commissioner. (Id.
at 1-7.)

II. STANDARD OF REVIEW
A district court may set aside a
determination by an ALJ “only if it is based
upon legal error or if the factual findings are
not supported by substantial evidence in the
record as a whole.” Greek v. Colvin, 802
F.3d 370, 374-75 (2d Cir. 2015) (citing
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.
2008); 42 U.S.C. § 405(g)). The Supreme
Court has defined “substantial evidence” in
Social Security cases to mean “more than a
mere scintilla” and that which “a reasonable
mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal citation
omitted); see Selian v. Astrue, 708 F.3d 409,
417 (2d Cir. 2013). Further, “it is up to the
agency, and not [the] court, to weigh the
conflicting evidence in the record.” Clark v.
Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, “even if [the court] might
justifiably have reached a different result
upon a de novo review.” Jones v. Sullivan,
949 F.2d 57, 59 (2d Cir. 1991) (internal
citation omitted); see also Yancey v. Apfel,
145 F.3d 106, 111 (2d Cir. 1998) (“Where an
administrative decision rests on adequate
findings sustained by evidence having
rational probative force, the court should not
substitute its judgment for that of the
Commissioner.”).

Although not part of the Administrative
Record, the ALJ has represented that on
October 15, 2015—the day after the ALJ
denied plaintiff’s initial application for
disability benefits—plaintiff filed another
benefits application with a coincident onset
date. (Def.’s Br., ECF No. 15, at 12.) By
Notice dated March 4, 2017, the
Commissioner informed plaintiff that the
second application had been granted
following a determination that plaintiff was
disabled beginning on October 15, 2015.
(See id. at 13; Decl. of Sean P. Greene, ECF
No. 15-1, Exh. 1.) The Commissioner has
further represented that the Appeals Council
subsequently reviewed that decision and
determined that remand of the instant action
was warranted due to new evidence adduced
during the second application process.
(Def.’s Br. at 13.)
Plaintiff filed this action seeking reversal
of the ALJ’s decision on August 19, 2016.
(ECF No. 1.) The Court received the
Administrative Record on November 21,
2016. (ECF No. 10.) Plaintiff filed a motion
for judgment on the pleadings on January 20,
2017. (ECF No. 11.) The Commissioner
cross-moved for remand on May 5, 2017.
(ECF No. 14), and plaintiff replied on June 5,
2017 (ECF No. 17).

III. DISCUSSION
The Commissioner asks the Court to
remand this action for further proceedings in
light of the new evidence that plaintiff
purportedly adduced in support of her second
claim for disability benefits.
Plaintiff
2

other hand, “when there is no reason to
believe that remand would serve any useful
purpose the court may, in its discretion, deem
it appropriate to remand solely for a
calculation of benefits.” Id. (citing Balsamo
v. Chater, 142 F.3d 75, 82 (2d Cir. 1998)).
However, the Second Circuit has emphasized
that “reversal for calculation of benefits is
appropriate only when there is ‘no apparent
basis to conclude that a more complete record
might support the Commissioner’s decision
. . . .’” De Mota v. Berryhill, No. 15 CIV.
6855 (PED), 2017 WL 1134771, at *9
(S.D.N.Y. Mar. 24, 2017) (quoting Rosa, 168
F.3d at 83) (citing Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980) (remand for
calculation of benefits only appropriate
where record contains “persuasive proof of
disability” and remand for further evidentiary
proceedings would serve no purpose)).

opposes that request and instead asks the
Court to reverse the ALJ’s October 14, 2015
decision and remand solely for a calculation
of award benefits. In the alternative, if the
Court finds that further development of the
factual record is required, plaintiff requests
that it limit the scope of remand to the period
between July 8, 2014 and October 14, 2015.
For the reasons set forth below, the Court
agrees with the Commissioner that remand
for additional factual findings is warranted
and denies plaintiff’s request to limit the
temporal purview of those proceedings.
A. Applicable Law
The Commissioner moves to have this
action remanded pursuant to the fourth
sentence of 42 U.S.C. § 405(g) in light of the
additional medical opinion evidence that
plaintiff submitted in support of her October
15, 2015 benefits application. That statute
provides, in relevant part, that:

B. Analysis
Here, the Commissioner asserts that
remand for additional proceedings including
a rehearing is warranted under 42 U.S.C.
§ 405(g) to enable consideration of medical
opinion evidence that is not in the
Administrative Record before the Court. The
Court agrees and exercises its discretion to
remand this action to the Commissioner for
further factual findings. See Arshad v.
Astrue, No. 07 CIV 6336 (JSR) (KNF), 2009
WL 996055, at *3 (S.D.N.Y. Apr. 6, 2009)
(“Remand under sentence four of § 405(g) is
appropriate when further development of the
factual record is necessary, or to enable the
ALJ to reconsider or demonstrate the use of
the appropriate legal standard.”), report and
recommendation adopted, No. 07 CIV.
6336JSR, 2009 WL 2742548 (S.D.N.Y. Aug.
28, 2009). In addition, the Court disagrees
with plaintiff that reversal of the ALJ’s
October 14, 2015 decision and remand for
solely a benefits calculation is proper at this
juncture because such a remedy “is
appropriate only in the rare circumstance

[t]he court shall have power to enter,
upon the pleadings and transcript of
the record, a judgment affirming,
modifying, or reversing the decision
of the Commissioner of Social
Security, with or without remanding
the cause for a rehearing.
42 U.S.C. § 405(g).
Under this provision, a court may
“remand the matter to the agency in order to
allow gaps in the evidentiary record to be
filled, or for discerned errors to be
addressed.” Baggett v. Astrue, No. 5:11-CV0195 NAM/DEP, 2012 WL 2814369, at *14
(N.D.N.Y. June 13, 2012) (citing Rosa v.
Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999);
Pratts v. Chater, 94 F.3d 34, 39 (2d Cir.
1996)), report
and
recommendation
adopted, No. 5:11-CV-0195, 2012 WL
2814329 (N.D.N.Y. July 10, 2012). On the
3

DAB/DCF, 2010 WL 1506673 (S.D.N.Y.
Apr. 14, 2010). “Nonetheless, the district
courts are empowered to limit the scope of a
remand by specifying actions to be taken by
the ALJ.” Id. (citing Sullivan v. Hudson, 490
U.S. 877, 885 (1989)). Thus, in “mixed”
cases where a plaintiff has challenged the
unfavorable portion of an ALJ’s decision
denying disability benefits for a certain time
period—but has not challenged the ALJ’s
favorable finding of disability for another
time period—district courts have remanded
those actions to the Commissioner with an
instruction that the ALJ re-consider only the
unfavorable portion of the decision at issue.
See, e.g., id. (“Here, Defendant’s motion
raised no issue regarding the adequacy of the
ALJ’s finding of disability for the period
from September 3, 2003 through May 19,
2005, and this Court can discern no such
issue. Accordingly, there is no reason to
revisit this determination on remand, and I
recommend that . . . the scope of remand be
limited to the period from May 20, 2005
forward.” (citations omitted)); Jameson v.
Astrue, No. CIV 09-CV-237-JD, 2010 WL
1568474, at *3 (D.N.H. Mar. 15,
2010), report and recommendation adopted
sub nom. Jameson v. Soc. Sec. Admin., No.
CIV 09-CV-237-JD, 2010 WL 1568482
(D.N.H. Apr. 14, 2010); Moreira v. Comm’r
of Soc. Sec., No. 04-CV-3436 (FB), 2007 WL
4410043, at *1 (E.D.N.Y. Dec. 14, 2007).

where there is persuasive proof of disability
in the record and remand for further
evidentiary development would not serve any
purpose.” Id.; see also Rosa, 168 F.3d at 83;
Parker, 626 F.2d at 235. In the instant action,
the Court is “unable to say that on remand,
and with a proper analysis” that “a finding of
disability prior to [October 15, 2015] would
necessarily result” following a rehearing and
consideration of the extra-record evidence.
Baggett, 2012 WL 2814369, at *14; see
also Bush v. Shalala, 94 F.3d 40, 46 (2d Cir.
1996) (“[A] decision to reverse and direct an
award for benefits should be made only when
. . . substantial evidence on the record as a
whole indicates that the claimant is disabled
and entitled to benefits.”). First, the new
evidence is not presently before the Court.
Second, the Administrative Record contains
evidence that contradicts plaintiff’s position
that she was disabled between July 8, 2014
and October 14, 2015, such as the December
22, 2014 assessment of consultative
examiner Andrea Pollack, D.O., that plaintiff
was neurologically intact, had no sensory or
muscle atrophy, and had full strength in her
upper and lower extremities. (AR. 366.) As
a result, the Court cannot say based on the
current Record that substantial evidence
indicates that plaintiff was disabled prior to
October 15, 2015.
Finally, the Court lacks the authority to
prevent the Commissioner from re-visiting
upon remand her conclusion that plaintiff
was disabled beginning on October 15, 2015.
“In general, the case law and Social Security
regulations provide that the ‘Commissioner
may revisit on remand any issues relating to
the application for disability benefits.’”
Valverde v. Astrue, No. 08 CIV. 8084
DAB/DF, 2010 WL 1506671, at *5
(S.D.N.Y. Mar. 23, 2010) (quoting
Thompson v. Astrue, 583 F. Supp. 2d 472,
475
(S.D.N.Y.
2008)), report
and
recommendation adopted sub nom. Valverde
v. Comm’r of Soc. Sec., No. 08 CIV. 8084

However, where a plaintiff seeks to
preclude review of a subsequent benefits
determination that is not part-and-parcel of
the decision sub judice, a court lacks the
authority to prevent the Commissioner from
revisiting the second finding upon remand of
the antecedent action.
See Moquin v.
Berryhill, No. 3:16-CV-10876-KAR, 2017
WL 1536403, at *2 (D. Mass. Apr. 27, 2017)
(“Essentially, what Plaintiff seeks by her
amendment is an order from this court
precluding
the
Commissioner
from
reviewing the subsequent grant of benefits.
4

While Plaintiff’s desire to avoid putting this
favorable decision in jeopardy is
understandable, the court is without authority
to so restrain the Commissioner with respect
to a final decision that is not before it. The
decision whether to reopen the subsequent
favorable decision is the Commissioner’s,
subject to the limitations provided by the
regulations.”); Dell v. Astrue, No. 1:11-CV1034 GLS, 2012 WL 5880670, at *1
(N.D.N.Y. Nov. 21, 2012) (denying
plaintiff’s request “to prevent the
Commissioner from reopening her second
claim for benefits and consolidating it with
her first claim upon remand” because the
second claim was not before the court and
“20 C.F.R. §§ 404.987(b) and 416.1487(b)
provide that the Commissioner may reopen
and revise a final determination or decision
on his own initiative”); Davis v. Astrue, No.
10-CV-404-PB, 2011 WL 5006936, at *2
(D.N.H. Oct. 20, 2011); Encarnación v.
Astrue, 724 F. Supp. 2d 243, 245 (D.P.R.
2010) (“The court lacks jurisdiction over the
subsequent award of benefits because no
appeal from that claim has been taken to the
district court.”). Indeed, the case cited in
plaintiff’s reply brief supports this
proposition. 2 See Rivera v. Astrue, No. CIV.
07-1912 (JBS), 2008 WL 3285850, at *18-19
(D.N.J. Aug. 8, 2008) (“Not only is the
December 2005 claim not properly before the
Court, but the record in the instant claim
contains no information regarding the
December 2005 claim other than the fact that
Claimant was adjudged disabled as of
December 1, 2005.”).

new evidence that is not part of the
Administrative Record before the Court. The
Court takes no view on whether the
Commissioner
should
re-visit
her
determination that plaintiff was disabled
beginning on October 15, 2015.
IV. CONCLUSION
For the reasons set forth above, plaintiff’s
motion for judgment on the pleadings is
denied, and the Commissioner’s motion for
remand is granted. The case is remanded to
the ALJ for further proceedings consistent
with this Memorandum and Order, including
a rehearing.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge

Dated: July 17, 2017
Central Islip, NY
***
Plaintiff is represented by Charles E. Binder
of the Law Offices of Harry J. Binder and
Charles E. Binder, P.C., 60 East 42nd Street,
Suite 520, New York, New York 10165. The
Commissioner is represented by Assistant
United States Attorney Sean P. Greene,
United States Attorney for the Eastern
District of New York, 271 Cadman Plaza
East, 7th Floor, Brooklyn, New York, 11201.

Thus, for these reasons, the Court
concludes that remand of the ALJ’s October
14, 2015 decision for further proceedings
including a rehearing is warranted in light of
2

Even assuming that this Court had the discretion to
limit the scope of remand so as to prevent the
Commissioner from re-visiting her determination that
plaintiff was disabled beginning on October 15, 2015,

the Court would not exercise that discretion here
because that decision and the underlying evidence is
not part of the Administrative Record before the Court.

5