Teneyck v. Astrue

Filing 25

MEMORANDUM-DECISION AND ORDER granting 19 Motion to Remand to Commissioner of Social Security: The Court hereby ORDERS that Plaintiff's motion for a sentence six remand (Dkt. No. 19) is GRANTED; and the Court further ORDERS that this action be remanded to the Commissioner for further consideration pursuant to sentence six of 42 U.S.C. § 405(g); and the Court further ORDERS that the parties' motions for judgment on the pleadings are DENIED as moot; and the Court further ORDERS th at the Clerk of the Court shall close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/12/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KRISTINA TENEYCK,
Plaintiff,
vs.

1:12-CV-0308
(MAD)

CAROLYN W. COLVIN,
in place of Michael J. Astrue,
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

IRWIN M. PORTNOY & ASSOCIATES, PC
542 Union Avenue
New Windsor, New York 12550
Attorneys for Plaintiff

IRWIN M. PORTNOY, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278

MONICA K. PROCTOR, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff commenced this action on February 22, 2012, pursuant to 42 U.S.C. § 405(g),
seeking review of a decision of the Commissioner of Social Security denying Plaintiff's
application for Social Security Disability Insurance Benefits ("DIB"), and a concurrent denial of
Supplemental Security Income ("SSI"). See Dkt. No. 1. On August 24, 2012, the Commissioner
moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for a judgment on the
pleadings. See Dkt. No. 13. While that motion was pending, Plaintiff filed a motion to remand

under the sixth sentence of 42 U.S.C. § 405(g), in light of "new and material evidence." See Dkt.
No. 19.
Currently before the Court is the Commissioner's motion for judgment on the pleadings
and Plaintiff's motion for remand.

II. BACKGROUND
A.

Procedural history
On July 15, 2009, Plaintiff filed an application for DIB, alleging an onset of disability of

August 16, 2006. See Tr.1 at 127; see also Dkt. No. 1 at ¶ 6. On July 16, 2009, Plaintiff filed an
application for SSI. See id. at 129. On May 13, 2011, after a video hearing, Administrative Law
Judge ("ALJ") Robert Gonzalez issued a decision denying the applications. See id. at 17. On
December 9, 2011, the Appeals Council denied a request for review. See id. at 5.

B.

Evidence before the ALJ
Plaintiff was born on October 20, 1973. See Tr. at 127. Plaintiff received her GED in

1992.
At the time of the hearing, Plaintiff was thirty-seven years old with a high school
education by way of a GED. See Dkt. No. 1 at 9. In disability reports and hearing testimony,
Plaintiff contended that she became disabled on August 16, 2006, due to Fibromyalgia, chronic
fatigue syndrome, seasonal depression, anxiety, obsessive compulsive disorder ("OCD"),

References to the administrative record are denoted by "Tr." followed by the relevant
page number.
1

2

trichotillomania,2 arthritis in the back and right knee, poor concentration, and side effects from
medications. See id. Prior to the alleged onset date, Plaintiff worked at a variety of jobs that
included work in jewelry sales, grocery clerk, customer service, cashier, bartender, retail assistant
manager, assembly person, and administrative assistant. See id.
Plaintiff has a history of knee surgeries. See id. The first procedure was performed in
1999 and consisted of an arthroscopic and patellofemoral stabilization. See id. Plaintiff again
underwent surgery in 2000 for suture removal. See id. Several years later, Plaintiff underwent
chondroplasty and synovectomy due to persistent patellofemoral symptoms. See id.
The medical record indicates that Plaintiff has had complaints of lower back pain since the
birth of her son. See id. The pain was made worse after breast feeding her son, exacerbated by
lifting, bending, lying and standing. See id. An MRI of the lumbar spine performed on May 13,
2008, showed mild right-sided bulge at L3-L4, signal loss and disc at L4-L5 with focal right
posterior extrusion with compression of right L5 nerve root. See id. The L5-S1 disc was normal.
See id. There were mild degenerative changes in the facet joints. See id. X-rays of the lumbar
spine demonstrated mild lumbar scoliotic curve. See id. Reports from treating orthopedics at
Orthopedics Associates, other treating and examining sources verify the diagnosis of left lumbar
facet dysfunction, bilateral greater trochanteric bursitis, left greater than right, and lumbar
spondylosis. See id. Plaintiff was prescribed the following treatment for the above conditions:
various medications, including Lyrica, Vicodin and daily lidocaine patches, physical therapy,
epidural steroid injection, lumbar steroid injection, right-sided lumbar medial branch blocks bursa

Trichotillomania is a type of impulse control disorder which causes an irresistible urge to
pull out ones hair, usually from the scalp, eyelashes, and eyebrows.
2

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injection, left lumbar facet blocks, and TENS unit. See id. at 9-10 (citations omitted); see also Tr.
at 54-56.
On May 5, 2008, Plaintiff was referred to Dr. Andrew Stewart of Orthopedic Associates
for complaints of back pain and bilateral knee pain. See Dkt. No. 1 at 10. On examination, Dr.
Stewart indicated that Plaintiff was pleasant, healthy, appeared in no acute distress, and that her
affect and gait were normal. See id. Examination of the right knee showed a well-healed vertical
incision over the patella without the presence of effusion. See id. An MRI of the right knee
performed on May 12, 2008, showed no evidence of meniscal tear. See id. Exam showed lateral
tilt of the patella with tenderness along the medial joint line and positive crepitus. See id. Dr.
Steward's impression was of a bilateral patellofemoral syndrome with right knee patellofemoral
osteoarthritis status post arthrospcopy, and a possible right knee medial meniscus tear. See id.
Dr. Steward prescribed physical therapy, patellofemoral stabilizing braces for both knees, and
injections. See id. (citations omitted).
On June 9, 2008, Plaintiff reported improvement in her right knee with Synvise injections.
See id. (citation omitted). Dr. Steward indicated that, after a long absence of treatment, Plaintiff
returned on July 24, 2009, requesting addition Synvise injections due to recurrence of her
symptoms. See id. (citation omitted).
Plaintiff had a longstanding history of treatment with Dr. Niraj Sharma, a Board Certified
Pain Specialist at Orthopedics Associates. See id. A June 30, 2008 physical examination showed
cranial nerves II through XII were grossly intact. See id. Lower extremity strength was 5/5. See
id. Plaintiff demonstrated tenderness over the greater trochanteric bursa, and positive lumbar
facet loading. See id. The exam showed increased extension of fifteen degrees and flexion
greater than ninety degrees. See id. Also, Plaintiff demonstrated a slight antalgic gate, with no
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calf tenderness or muscle atrophy. See id. Dr. Sharma indicated that, even though Plaintiff had a
disc protusion at L4-L5, she did not feel that it was symptomatic. See id. Further, Plaintiff was
scheduled for right sided lumbar medial branch blocks. See id. (citations omitted).
On October 5, 2009, DDS examining physician Dr. Amelita Balgras conducted an
orthopedic examination. See id. at 11. Plaintiff presented with complaints of lower back and
right knee pain, which started after the birth of her son. See id. Plaintiff described the pain as an
ache, radiating up her back, and occasionally in both buttocks. See id. Plaintiff stated that her
condition is aggravated by damp weather, sitting, standing, or walking for prolonged periods. See
id. Plaintiff's ongoing knee pain was described as an ache, aggravated by cold, damp weather,
lifting, and stair activities. See id. Plaintiff informed Dr. Balgras that she had been diagnosed
with Fibromyalgia in April 2009. See id. Dr. Balgras indicated that Plaintiff did not appear to be
in acute distress, she had a normal gate, could walk on her heels and toes without difficulty and
could squat half way. See id. Plaintiff did not use an assistive device, she did not need help
changing or getting on and off the examination table, and was able to rise from her chair without
difficulty. See id. Plaintiff demonstrated tenderness over the lumbar paraspinals, but
demonstrated no spinal, SI joint, or sciatic notch tenderness. See id. Dr. Balgras noted
peripatellar tenderness in the right knee and crepitation on flexion of the knee. See id. Dr.
Balgras provided a diagnosis of lower back pain, musculoskeletal origin, right knee pain, and
Fibromyalgia. See id. Dr. Balgras found that Plaintiff would have slight to moderate limitations
in activities that require bending, lifting, prolonged sitting, standing, walking, kneeling, and
squatting. See id.
Additionally, the record demonstrates that Plaintiff had been under the care of James Wise
since December 8, 2009 for her Fibromyalgia diagnosis. See id. The record demonstrates that
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Plaintiff had generalized myalgias for several years, but her major problems were fatigue,
depression, and generalized pain. See id. Plaintiff demonstrated twelve-to-fourteen tender points
during a physical exam. See id. On May 6, 2010, Plaintiff's symptoms of chronic pain,
sensitization, poor sleep, fatigue, and discomfort were stable. See id. Plaintiff reported that she
found Lyrica to be helpful. See id. On October 4, 2010, her symptoms had increased due to
menses, discontinuing medication, and change in the weather. See id. Despite this, Plaintiff
reported that her energy level was stable and that medication helped her sleep. See id. Further,
Plaintiff indicated that she had been able to restart an exercise program. See id. Weiss found that
twelve-to-fourteen tender points were still present, but less sensitive. See id.
On November 23, 2010, Linda Lauretta, a licensed social worker at Maverick Family
Counseling, indicated that Plaintiff entered the office for treatment on May 22, 2008 for anxiety,
depression, and trychotillomania. See id. Ms. Lauretta indicated that Plaintiff had made little to
no improvement in managing her anxiety. See id. Plaintiff had persistent anxiety and depressive
symptoms, both of which were resistant to treatment. See id. Ms. Lauretta indicated that these
conditions were complicated by her physical medical issues, namely fibromyalgia, back pain, and
frequent stomach ailments. See id. Plaintiff's symptoms included inability to focus, poor
memory, poor social interaction, and pre-occupation with her medical problems. See id. Ms.
Lauretta reported that her prognosis was poor. See id. (citations omitted).
At the request of the Division of Disability Services ("DDS"), Plaintiff saw Annette
Payne, Ph.D., on October 5, 2009. See id. at 12. Plaintiff drove herself to the examination. See
id. Plaintiff reported to Dr. Payne feelings of depression most of the time, difficulty with reading,
comprehension, spelling, sleeping, unstable appetite, increasing difficulties with depression and
anxiety related to her back pain, dysphoric mood, crying, guilt, hopelessness, loss of interests,
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irritability, fatigue, worthlessness, diminished self-esteem, cognitive interference, diminished
sense of pleasure, excessive apprehension and worry, restlessness, difficulty concentrating, and
muscle tension. See id. Plaintiff stated, however, that she did not suffer from panic attacks. See
id.
At the hearing, Plaintiff testified that she had not looked for work since 2006, when she
gave birth to her son. See id. Plaintiff stated that she has problems sleeping and often wakes up
during the night. See id. Moreover, Plaintiff testified that she had her third knee surgery in 2010.
See id. However, Plaintiff indicated that her kneecap still "goes to the right, pulls on tendons,"
and feels like they are dislocated and often locks. See id. She indicated that she has continued
with physical therapy for her conditions. See id.
Thereafter, Plaintiff testified that she suffers side effects from her medication, including
fatigue, dizziness, and problems with memory and concentration. See id. Lyrica helps her deal
with the symptoms associated with Fibromyalgia, while Aleve helps the pain in her back and
joints. See id. Plaintiff also receives shots of B12 for anemia two times per month and uses
Lidoocaine patches every day to help manage her pain. See id. Moreover, Plaintiff indicated that
she receives shots to alleviate the pain in her back. See id. Plaintiff testified that she can stand
for approximately ten-to-fifteen minutes at a time. See id. Further, she takes Ativan to help her
sleep and was prescribed psychotropic medication, which provides limited help with her
depression. See id. Moreover, Plaintiff testified that she has no hair because she pulls it out. See
id. Plaintiff indicated that she spends most of her days in bed. See id. Plaintiff claimed that she
is in constant pain, that she suffers from severe anxiety, and that her physical and mental
conditions render her incapable of gainful employment. See id.

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C.

ALJ's Gonzalez's decision
In a May 13, 2011 decision, the ALJ found that Plaintiff was not disabled under Sections

216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. See Dkt. No. 1 at 17. The ALJ
found that Plaintiff's statements about the intensity, duration, and limiting effects of her
symptoms are not consistent with the record and, therefore, not entirely credible. See id. The
ALJ noted that, although Plaintiff did complain of pain in the back, loss of memory, and that she
was in distress, "this is sharply contradicted by treating source notes such as notes from Dr.
Ramaswamni, who found her in no acute distress, well developed, and . . . doing well. Her
general health was good." See id. Further, the ALJ found that Plaintiff's treatment was sporadic
and that she had been consistently non-compliant with prescribed medical treatment. See id. He
noted that, "[d]espite the complaints of allegedly disabling symptoms, there have been significant
periods since the alleged onset date during which [Plaintiff] has not taken any medications for
those symptoms. The evidence suggests that the symptoms may not have been as serious as has
been alleged in connection with this application and appeal." Id.
At step one of the sequential analysis, the ALJ determined that Plaintiff had not engaged
in substantial gainful activity since her alleged onset of disability of August 16, 2006. Next, the
ALJ determined that Plaintiff had the following severe impairments: status-post right knee
arthroscopy three times, lumbar disc herniation, Fibromyalgia, anemia, anxiety, obsessive
compulsive disorder, and trychotillomania. See Tr. at 19. At the third step, the ALJ determined
that Plaintiff's impairments did not meet or equal the criteria of the listed impairments in
Appendix 1 to 20 C.F.R. Part 404, Subpart P. See Tr. at 19-20. The ALJ next assessed Plaintiff's
residual functional capacity – i.e., what Plaintiff could still do – mentally and physically – despite
her impairments. The ALJ concluded that Plaintiff could perform light work as defined in 20
8

C.F.R. §§ 404.1567(b) and 416.967(b), engage in occasional postural positions, and remember
and carry out simple tasks. See id. at 20. Based on Plaintiff's RFC, the ALJ found at the fourth
step that Plaintiff could not perform her past relevant work, which was all skilled or semi-skilled.
See id. at 28. Finally, at the fifth step, the ALJ considered Plaintiff's age, education, work
experience, and RFC, and found that Plaintiff could make a successful adjustment to other work
that existed in significant numbers in the national economy. See id. Accordingly, the ALJ found
that Plaintiff was not disabled within the meaning of the Act. See id. at 29.
On December 9, 2011, the Appeals Council denied Plaintiff's request for review. See Dkt.
No. 1 at 21. As such, the ALJ's decision is the final decision of the Commissioner.

III. DISCUSSION
A.

Plaintiff's motion to remand and "new" evidence in support
On July 24, 2011, Plaintiff filed an additional application for disability benefits. Plaintiff

asserted that she had been disabled since June 24, 2011. See Dkt. No. 19-2. After a hearing, on
December 12, 2012, ALJ Carl Stephan issued a decision finding Plaintiff disabled since June 24,
2011. See Dkt. No. 20-1 at 5-14.
In his decision, the ALJ found that Plaintiff had the following severe impairments:
fibromyalgia, herniated discs and arthritis in the lumbar spine, residual effects of injuries and
surgeries to the right knee, anxiety, depression, and an obsessive-compulsive disorder. See id.
The ALJ then found that Plaintiff had the residual functional capacity to perform sedentary work
with the following exceptions: Plaintiff can stand and walk for a maximum of one hour in an eight
hour workday; Plaintiff can sit for a maximum of four hours in an eight hour workday; Plaintiff
can occasionally understand, remember, and carry out simple instructions as a result of impaired
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concentration and memory; Plaintiff can occasionally interact appropriately with others; Plaintiff
is unable to make work-related decisions; Plaintiff is frequently unable to maintain a regular
schedule; and Plaintiff is expected to be absent from work at least three days each month due to
the severity of her impairments and required medical treatment. See id.
On September 12, 2011, Plaintiff was examined by Dr. Alex Gindes for a consultative
psychiatric examination. See Dkt. No. 19-1 at 488-492. In addition to discussing Plaintiff's
various medical conditions from as early as 1996, Dr. Gindes reviewed Plaintiff's medical history,
including her psychiatric treatment from 2008 through June 2011 at Maverick Family Counseling.
See id. at 488. Further, Dr. Gindes discussed Plaintiff's treatment at Spectrum Behavioral Health
Clinic "for a number of years," as well as her treatment with Hani Khalil for the two-years prior
to her examination with Dr. Gindes. See id. Dr. Gindes found that Plaintiff's affect was tense and
anxious, "but appropriate in speech and thought content." See id. at 490. Further, Dr. Gindes
found that Plaintiff's attention and concentration were "significantly impaired by anxiety in the
evaluation and OCD. [Plaintiff] did poorly on simple calculations and serial 3s." See id.
Moreover, Dr. Gindes noted that Plaintiff's recent and remote memory skills were significantly
impaired" and that her "[i]ntellectual functioning was estimated to be in the borderline range with
somewhat limited general fund of information." See id.
Dr. Gindes found that Plaintiff can follow and understand simple directions and
instructions; however, she is not likely to maintain attention and concentration or maintain a
regular schedule." See id. at 490-91. Moreover, although Dr. Gindes found that Plaintiff can
learn new tasks, he also found that she "is not likely to perform complex tasks independently."
See id. at 491. Also, Dr. Gindes noted that Plaintiff is not likely to relate adequately with others
or appropriately deal with stress, and that her "difficulties are caused by symptoms of OCD and
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cognitive deficits." See id. As such, Dr. Gindes found that "[t]he results of the examination
appear consistent with psychiatric and cognitive problems, and this may significantly interfere
with [Plaintiff's] ability to function on a daily basis." See id. In his decision, ALJ Stephan stated
that, "[e]ven though Dr. Gindes examined claimant only once, I grant his opinion great weight
because his assessment is supported by his observations of claimant and because his assessments
are consistent with claimant's history of mental health treatment." See Dkt. No. 20-1 at 11.
In her motion, Plaintiff argues that Dr. Gindes' report is new and material evidence, which
warrants remand under sentence six. See Dkt. No. 19-2 at 6. Plaintiff claims that this new
evidence "undermines the basis on which the ALJ in the instant action" concurred with the
determinations of certain DDS examining physicians and psychiatrists, in that he rejected
Plaintiff's complaints of pain and its intensity, as well as his rejection of Ms. Lauretta's opinions.
See id. Plaintiff asserts that this new evidence/subsequent decision would likely have affected
ALJ Gonzalez's decision, which renders it material. See id. (citing Gold v. Secretary of Health,
Ed. and Welfare, 463 F.2d 38, 44 (2d Cir. 1982)).

B.

Standard of review and application
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does

not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);
Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court
must examine the Administrative Transcript to ascertain whether the correct legal standards were
applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial
evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as
11

"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted).
If supported by substantial evidence, the Commissioner's finding must be sustained "even
where substantial evidence may support the plaintiff's position and despite that the court's
independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the
Commissioner's determination considerable deference, and may not substitute "its own judgment
for that of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
For purposes of both DIB and SSI, a person is disabled when he is unable "to engage in
substantial gainful activity 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), 1382c(a)(3)(A).
In reviewing the denial of a claim, the Court will typically employ the traditional five-step
analysis set forth in Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Here, though, the
Court will first assess Plaintiff's arguments about new evidence.
Upon judicial review of a denial, a district court may remand a case to the Commissioner
to consider additional evidence that was not included as part of the original administrative
proceedings. See 42 U.S.C. § 405(g) (sentence six) ("The court . . . may at any time order
additional evidence to be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding; . . ."). This type of remand,
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commonly referred to as a "sentence six remand," is only appropriate if a plaintiff can show that
the evidence is (1) new and not cumulative of what is already in the record; (2) material in that it
is relevant to the claimant's condition during the time period for which benefits were denied and
there is a reasonable possibility that the new evidence would have influenced the Commissioner
to decide the disability determination differently; and (3) good cause has been shown for failing
to present the evidence earlier. Lisa v. Sec'y of Dep't of Health and Human Servs., 940 F.2d 40,
43 (2d Cir. 1991); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988).
"Sentence four of Section 405(g) provides district courts with the authority to affirm,
reverse, or modify a decision of the Commissioner 'with or without remanding the case for a
rehearing.'" Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2004) (quoting 42 U.S.C. § 405(g)). A
sentence four remand is "particularly appropriate where, due to inconsistencies in the medical
evidence and/or significant gaps in the record, further findings would plainly help to assure the
proper disposition of a claim." Kirkland v. Astrue, No. 06 CV 4861, 2008 WL 267429, *8
(E.D.N.Y. Jan. 29, 2008) (internal quotations and alterations omitted); see also Butts, 388 F.3d at
385 (quoting Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999)).
In the present matter, the Court finds that this case must be remanded pursuant to sentence
six for consideration of the new evidence submitted. In Lisa v. Sec'y of Health & Human Servs.,
940 F.2d 40, 44 (2d Cir. 1991), the plaintiff was seeking a sentence six remand in light of new
evidence consisting of, among other things, "the reports of four physicians concurring in the
diagnosis that Lisa suffers from fibromyalgia[.]" Lisa, 940 F.2d at 43. The Second Circuit held
that
"evidence bearing upon an applicant's condition subsequent to the
date upon which the earning requirement [i.e., insured status] was
last met is pertinent evidence in that it may disclose the severity and
continuity of impairments existing before the earning requirement
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date or may identify additional impairments which could reasonably
be presumed to have been present and to have imposed limitations
as of the earning requirement date."
Id. at 44 (quotation omitted). Further, the court held that, "when, as in this case, a diagnosis
emerges after the close of administrative proceedings that 'sheds considerable new light on the
seriousness of [a claimant's] condition,' evidence of that diagnosis is material and justifies
remand." Id. (quotation omitted). Finding remand appropriate, the court found that the
introduction of the plaintiff's "new diagnostic evidence would present a reasonable possibility of
influencing the Secretary to decide her application differently." Id. Additionally, the Second
Circuit found that the evidence "would suggest that [the plaintiff] had an impairment substantially
more severe that was previously diagnosed . . . [and] would also substantially bolster the
credibility of [the plaintiff's] subjective complaints." Id.
Similar to Lisa, in the present matter, Dr. Gindes' report and Plaintiff's subsequent grant of
disability benefits shed considerable new light on the seriousness of Plaintiff's condition and
present a reasonable probability of influencing the Commissioner to decide her application
differently. ALJ Stephan, in his December 12, 2012 favorable decision, considered not only
evidence of Plaintiff's conditions during the period beginning June 24, 2011 – the alleged onset of
disability – but also medical records and testimony concerning the period of alleged disability at
issue in the present case. See Dkt. No. 20-1 at 10-12. Similarly, Dr. Gindes considered Plaintiff's
physical and mental health history and treatment beginning in 1994 through the date of his
examination of Plaintiff. See Dkt. No. 19-1 at 488-492. Dr. Gindes discussed Plaintiff's 1996
asthma diagnosis, her 2009 fibromyalgia diagnosis, as well as her "several serious compulsions,
such as trichotillomania, PICA, and compulsive nail biting." See id. at 489. As a result of his
review of Plaintiff's medical history and examination, Dr. Gindes found that Plaintiff has
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"psychiatric and cognitive problems, and this may significantly interfere with [Plaintiff's] ability
to function on a daily basis." See id. at 491.
To the contrary, ALJ Gonzalez found that Plaintiff's "statements about the intensity,
duration, and limiting effects of these symptoms are not consistent with the record, and therefore,
not entirely credible. Although [Plaintiff] has reported ongoing symptoms, I find her description
of symptoms is only partially credible. [Plaintiff] did complain of pain in the back, loss of
memory, and in distress, however, this is sharply contradicted by treating source notes such as
notes from Dr. Ramaswamni, who found her in no acute distress, well developed, and was doing
well." See Dkt. No. 1 at 12. ALJ Stephan's decision, relying in part on Plaintiff's medical records
and history from the same time period, reached a markedly different result, finding Plaintiff's
subjective complaints well supported by the medical records, including Dr. Gindes' September 12,
2011 report.
Although there is some doubt as to whether a decision granting a subsequent application
for benefits should be considered "evidence" for sentence six remand purposes, see Lopez v.
Barnhart, No. 07 CIV.7516, 2002 WL 1822739, *3 n.2 (S.D.N.Y. Aug. 8, 2002); see also Allen v.
Comm’r of Social Security, 561 F.3d 646, 653 (6th Cir. 2009); Perry v. Astrue, Civil Action No.
10-110004, 2012 WL 645890, *11 (D. Mass. Feb. 27, 2012) ("The mere fact that a second ALJ
weighed the evidence differently does not authorize reversal by a district court; the standard is
whether the first ALJ's decision was supported by substantial evidence on the record, not whether
it was the only possible reasonable decision"); this Court need not resolve the issue in this
particular case because the new evidence submitted, by itself, justifies such a remand. On
remand, the ALJ will be able to reconsider the record, supplemented to include the new records.

15

The ALJ will then be called upon to make a determination under the sequential framework
applicable to applications for benefits.
The last issue is whether Plaintiff has shown "good cause" for failing to submit this
evidence earlier. This Court finds that good cause has been established since the evidence did not
exist when the ALJ rendered his decision. See Beede v. Comm'r of Soc. Sec., No. 1:12-cv-1072,
2013 WL 5217673, *8 (N.D.N.Y. Sept. 16, 2013) (citations omitted).
Based on the foregoing, the Court finds that this new evidence (1) is "relevant to the
claimant's condition during the time period for which benefits were denied;" (2) is probative; and
(3) that there is "a reasonable possibility that the new evidence would have influenced the
[Commissioner] to decide [Plaintiff's] application differently." Pollard v. Halter, 377 F.3d 183,
193 (2d Cir. 2004) (quotation omitted). As such, Plaintiff's motion to remand under the sixth
sentence of 42 U.S.C. § 405(g) is granted.

IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for a sentence six remand (Dkt. No. 19) is GRANTED;
and the Court further
ORDERS that this action be remanded to the Commissioner for further consideration
pursuant to sentence six of 42 U.S.C. § 405(g); and the Court further
ORDERS that the parties' motions for judgment on the pleadings are DENIED as moot;
and the Court further
ORDERS that the Clerk of the Court shall close this case; and the Court further
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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 12, 2014
Albany, New York

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