Connell v. Commissioner of Social Security

Filing 21

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Plaintiff's # 16 motion for judgment on the pleadings is GRANTED. The Court further ORDERS that Defendant's # 19 motion for judgment on the pleadings is DENIED. The Court furth er ORDERS that the Commissioner's decision is REVERSED and this matter is REMANDED to the ALJ for further proceedings consistent with this Memorandum-Decision and Order pursuant to sentence four of the Act. The Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Plaintiff and close this case. Signed by Senior Judge Frederick J. Scullin, Jr. on 1/18/2017. (nmk) Modified on 1/18/2017, copy served upon pro se plaintiff via regular and certified mail. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
ERIN S. CONNELL f/k/a ERIN WROBLEWSKI,
Plaintiff,
v.

5:15-CV-1453
(FJS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________________
APPEARANCES

OF COUNSEL

ERIN S. CONNELL
Chittenango, New York 13037
Plaintiff pro se
SOCIAL SECURITY ADMINISTRATION
OFFICE OF REGIONAL
GENERAL COUNSEL – REGION II
26 Federal Plaza – Room 3904
New York, New York 10278
Attorneys for Defendant

KRISTINA D. COHN, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Erin S. Connell f/k/a Erin Wroblewski, proceeding pro se, brought this action
pursuant to the Social Security Act, 42 U.S.C. § 405(g) (“Act”), seeking judicial review of a final
decision of the Commissioner of Social Security (the “Commissioner”), denying her application
for benefits. See generally Dkt. Nos. 1, 16. Pending before the Court are the parties’ cross-1-

motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure.
See Dkt. Nos. 16, 19.

II. PROCEDURAL HISTORY AND BACKGROUND
Plaintiff applied for benefits on January 30, 2012, alleging disability as of March 15,
2011. See Administrative Record (“AR”) at 70. The Social Security Administration denied
Plaintiff’s applications on May 25, 2012. See id. at 77. Plaintiff filed a timely request for a
hearing on June 25, 2012. See id. at 85. A video hearing was held on February 20, 2014, before
Administrative Law Judge Joseph L. Brinkley (“ALJ”). See id. at 13. Attorney Timothy J.
McMahon represented Plaintiff at the hearing. See id.
On July 18, 2014, the ALJ issued a written decision in which he made the following
findings “[a]fter careful consideration of the entire record . . . .”
1) Plaintiff has not “engaged in substantial gainful activity since March 15, 2011,
the alleged onset date.”
2) Plaintiff “has the following severe impairments: osteoporosis; fibromyalgia
variant/diffuse pain syndrome; thoracic strain; cervical radiculopathy;
degenerative disc disease; palpitations with history of tachycardia; major
depressive disorder; post-traumatic stress disorder (PTSD); borderline
personality disorder; and panic disorder with agoraphobia.”
3) Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1.”
4) Plaintiff “has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 20 CFR 416.967(b) except that the claimant: can
frequently use the bilateral upper extremities to handle, grasp, finger and feel;
can occasionally lift/reach overhead or push/pull with the bilateral upper
extremities; can occasionally climb ramps/stairs, balance, kneel, stoop, crawl,
and crouch; should never climb ladders, ropes, or scaffolds; should avoid
concentrated exposure to environmental irritants and humidity, wetness,
vibrations, extreme heat or cold temperatures, and workplace hazards; should
be limited to simple, routine, repetitive tasks; should have no physical contact
with public or coworkers and can occasionally engage in nonphysical contact
with these individuals; and should not engage in team work; can understand &
carry out very simple written/oral work related instructions; can exercise simple
-2-

judgment in the work place; can complete a simple work schedule; and should
be limited to low-stress to [sic] work that by its nature does not require
production [sic] high volume quotas and fast paced assembly line jobs.”
5) Plaintiff “is capable of performing past relevant work as a (2) cleaner, D.O.T.
323.687-014, light, svp 2 (full-time).”
6) Plaintiff “has not been under a disability, as defined in the Social Security Act,
from March 15, 2011, through the date of this decision.”
See AR at 15-24 (citations omitted).
The ALJ’s decision became the Commissioner’s final decision on October 20, 2015,
when the Appeals Council of the Social Security Administration denied Plaintiff’s request for
review. 1 See id. at 1-3. Plaintiff then commenced this action on December 18, 2015. See Dkt
No. 1. In her complaint, Plaintiff filed a letter explaining her condition and why she believes she
is disabled. See id. On June 9, 2016, Plaintiff filed new medical records and a copy of the same
letter. See generally Dkt. No. 16. Defendant filed a brief on August 13, 2016, arguing that the
ALJ’s decision was supported by substantial evidence and should be affirmed. See Dkt. No. 19.
Plaintiff’s letter, construed liberally, disagrees with the ALJ’s decision that she is able to
perform her past relevant work. See Dkt. No. 16 at 10 (stating, “I do not feel that I could in any
way shape or form function in a work environment”). Moreover, Plaintiff limits her discussion
to her mental issues including her anxiety, depression, borderline personality disorder, and loss
of memory. In other words, Plaintiff argues that there is not substantial evidence in the record to
support the ALJ’s residual functional capacity determination and his decision that she can
perform work as a cleaner.

1

In Plaintiff’s request for review, she submitted additional records the ALJ had not considered.
See AR at 4 (noting submission of EX. “30F”).
-3-

III. DISCUSSION
Before addressing the merits of the ALJ’s decision, the Court must consider whether it
can perform meaningful review of the record due to the new evidence that Plaintiff has
submitted. In this regard, the Court must first determine whether the evidence Plaintiff
submitted to the Appeals Council, after the ALJ’s decision, warrants remand because it
contradicts the ALJ’s decision and whether the new evidence Plaintiff submitted to the Court in
this proceeding warrants remand to the ALJ. See Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
After obtaining a negative decision from the ALJ, a claimant “may request” that the
Appeals Council review an ALJ’s decision. See 20 C.F.R. § 404.967. When a claimant requests
such review, the Appeals Council “may deny or dismiss the request for review, or it may grant
the request and either issue a decision or remand the case to an administrative law judge.” Id.
The Appeals Council will grant a claimant’s request for review rather than deny or dismiss the
request if
(1) There appears to be an abuse of discretion by the [ALJ];
(2) There is an error of law;
(3) The action, findings, or conclusions of the [ALJ] are not supported by substantial
evidence; [or]
(4) There is a broad policy or procedural issue that may affect the general public
interest[.]
20 C.F.R. § 404.970(a).
Furthermore, the regulations specifically permit claimants to submit additional evidence
to the Appeals Council that was not before the ALJ. See 20 C.F.R. §§ 404.968, 404.970(b). If a
claimant does so, the Appeals Council determines whether the evidence “relates to the period on
-4-

or before the date of the [ALJ’s] decision” and whether it is “new and material.” 20 C.F.R.
§ 404.970(b). Evidence is new if it is not “‘merely cumulative of what is already in the record’”
and is material if the new evidence is relevant, probative, and provides a reasonable possibility
that the new evidence could change the Commissioner’s decision. Tirado v. Bowen, 842 F.2d
595, 597 (2d Cir. 1988) (quotation and other citation omitted); see also Lisa v. Sec’y of Dep’t of
Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991) (quotation omitted).
The Appeals Council is required to consider “new and material” evidence if it “relates to
the period on or before the date of the [ALJ’s] hearing decision” and must “then review the case
if it finds that the [ALJ’s] action, findings, or conclusion is contrary to the weight of the evidence
currently of record.” Perez, 77 F.3d at 45 (quoting § 404.970(b)) (other citation omitted).
“Therefore, even when the Appeals Council declines to review a decision of the ALJ, it reaches
its decision only after examining the entire record, including the new evidence submitted after
the ALJ’s decision.” Id. In other words, “new evidence submitted to the Appeals Council
following the ALJ’s decision becomes part of the administrative record for judicial review when
the Appeals Council denies review of the ALJ’s decision.” Id. Accordingly, the court’s role is to
review the entire administrative record, which includes the new evidence, to decide whether the
Commissioner’s decision is supported by substantial evidence. See id.; see also Sears v. Colvin,
No. 8:12-CV-570, 2013 WL 6506496, *5 (N.D.N.Y. Dec. 12, 2013) (stating, “[i]f the Appeals
Council fails to consider new, material evidence, ‘the proper course for the reviewing court is to
remand the case for reconsideration in light of the new evidence’” (quotation omitted)); Bushey
v. Colvin, 552 F. App’x 97, 98 (2d Cir. 2014) (summary order) (supporting the Appeals
Council’s decision declining review because new evidence “did not alter the weight of the
evidence so dramatically as to require the Appeals Council to take the case”).

-5-

The Supreme Court has defined substantial evidence to mean “‘more than a mere
scintilla’” of evidence and “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation
omitted). Accordingly, a reviewing court “‘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.’” Cohen v. Comm’r of Soc. Sec., 643 F. App’x 51, 52 (2d Cir. 2016) (summary order)
(quoting Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). In
other words, “[t]he substantial evidence standard means once an ALJ finds facts, [a reviewing
court may] reject those facts ‘only if a reasonable factfinder would have to conclude otherwise.’”
Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (quotation and other
citation omitted).
In this case, the Appeals Council acknowledged that it had reviewed the new evidence
but did not provide any reasons for its conclusion that, despite this new evidence, substantial
evidence supported the ALJ’s decision. See AR at 1, 4. The new evidence that Plaintiff
submitted to the Appeals Council included treatment notes from Dr. Maroldo on July 8, 2014,
and treatment with, among others, Dr. Reddy at St. Joseph’s Hospital on January 7, 2014,
February, 18, 2014, March 11, 2014, April 1, 2014, May 13, 2014 and July 1, 2014. See AR at
695-736, EX. “30F.”
Plaintiff visited Dr. Maroldo’s office on July 8, 2014, to follow-up on her treatment from
a year earlier. 2 See AR at 697. During the visit, Dr. Maroldo noted that Plaintiff had extreme
anxiety prior to her appointment because the first time they had met Plaintiff had not told him

2

Plaintiff treated with Dr. Maroldo on July 18, 2013, for a new patient evaluation of cognitive
impairment. See AR at 535-38. In reaching his decision, the ALJ afforded Dr. Maroldo’s opinion
from July 18, 2013 “great weight.” See id. at 21.
-6-

that her brother and uncle had sexually molested her when she was six years old. See id. Dr.
Maroldo’s notes indicate that Plaintiff was sobbing throughout most of the meeting and had been
having significant problems with her mother. See id. at 697-98. Furthermore, during the 2014
visit, Plaintiff stated that going to group therapy made her symptoms worse. See id. at 697.
Finally, Dr. Maroldo confirmed that Plaintiff’s memory loss was psychological, not neurological.
See id. at 698.
Dr. Maroldo’s treating notes regarding Plaintiff’s July 8, 2014 visit are generally
consistent with the ALJ’s decision. One minor contradiction is that Plaintiff reported group
therapy made her symptoms worse whereas the ALJ credited Plaintiff’s ability to attend group
therapy as showing that she was able to leave her home and be in crowds. See id. at 22.
However, the ALJ ultimately concluded, in determining Plaintiff’s RFC, that she should not
engage in teamwork and could only “occasionally” engage in nonphysical contact with
coworkers or the public. See id. at 17. Furthermore, Dr. Maroldo’s treating notes only reflect
Plaintiff’s subjective complaints that were documented elsewhere. Thus, the Court concludes
that this new evidence, by itself, does not justify remand. See Hutchinson v. Colvin, No. 6:14CV-787, 2016 WL 843376, *5 (N.D.N.Y. Mar. 1, 2016).
However, in addition to Dr. Maroldo’s July 8, 2014 treatment notes, Plaintiff submitted
treatment notes from St. Joseph’s Hospital to the Appeals Council. 3 See id. at 703-36. Plaintiff
complained of being overwhelmed. See id. at 705. Plaintiff also complained that she had
difficulty grocery shopping. See id. These treating records discuss Plaintiff’s challenging home
life and past abuses from family and former relationships. See id. at 706. The records also

3

Treatment dates were on January 7, 2014, February, 18, 2014, March 11, 2014, April 1, 2014,
May 13, 2014 and July 1, 2014. See AR at 703-36.
-7-

indicate that Plaintiff hears voices, including during the intake, which make it difficult for her to
have conversations with others. 4 See id. at 705-06. Further, the treatment notes state Plaintiff was
consistently taking her medication. See id. at 714, 718, 724. Plaintiff’s insight was marked
between poor and good, and her judgment was marked between fair and good. See id. at 715,
723, 731. In multiple places, it is noted that Plaintiff was angry and/or intense. See id. at 713,
715, 716, 730. On April 1, 2014, Plaintiff was supposed to be discharged from care at St.
Joseph’s Hospital; but, due to her struggles establishing relationships with providers, low
functioning, and remaining symptoms, she was not discharged. See id. at 719. These records
further indicate that she missed several appointments with providers for other medical reasons.
See id. at 720-21. Finally, these records demonstrate that Plaintiff’s symptoms continued
throughout treatment. See id. at 732-33.
The treatment notes from St. Joseph’s Hospital paint a different picture than the one the
ALJ provides. In his decision, the ALJ noted that, “[b]y January 2013, the [Plaintiff] reported
symptom control” and progress. See id. at 20. Thus, the ALJ stated, “it is unclear how the
[Plaintiff] could report such difficulty going out of her home, when she was able to go to
doctor’s appointments, was cooperative during most examinations, and even attended group
therapy sessions.” See id. To the contrary, the St. Joseph’s Hospital records show that Plaintiff’s
symptoms were getting worse despite Plaintiff consistently taking medication.
Had the ALJ reviewed these records, the Court finds that he might have reached a
different conclusion. For example, the ALJ gave Dr. Iosileveck’s medical opinion limited
weight because there were inconsistencies in the treatment notes and because Dr. Iosileveck last

4

Like the memory loss, “the reported delusions and incongruent thought process is likely better
explained by psychotic features of her major depression,” rather than neurological issues. See
AR at 712.
-8-

saw the Plaintiff in August 2013. 5 See id. at 21. However, Dr. Iosileveck’s treatment notes are
consistent with Plaintiff’s continued treatment at St. Joseph’s Hospital. Furthermore, the ALJ
discounted Dr. Iosileveck’s letter stating Plaintiff could not work because it included no
objective findings to support his conclusory remarks. See id. at 21-22. However, just after Dr.
Iosileveck issued that letter in December 2013, Plaintiff began treatment at St. Joseph’s Hospital,
complaining of nearly identical symptoms. Thus, because the ALJ based his decision in part on
a lack of corroboration in Plaintiff’s symptomology, the Court finds that a remand is appropriate
to consider this additional evidence that appears to confirm Plaintiff’s severe mental
impairments. See Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d Cir. 2015) (holding that the ALJ
should determine what weight to afford medical evidence on remand).
Furthermore, if the ALJ were to give the St. Joseph’s Hospital treating notes great
weight, it may very well be dispositive based on the additional record evidence. Uncontroverted
testimony from the Vocational Expert stated that, if Plaintiff were off-task 10% of the time
during an eight-hour work day or if she could not perform low-stress work, it would eliminate
her ability to perform her past relevant work. See AR at 68. Since the St. Joseph’s Hospital
records consistently label Plaintiff as erratic, labile, with poor insight, and continuing symptoms,
the ALJ might very well find that Plaintiff would be unable to perform low stress work or to be
on task. Thus, the Court finds that the Appeals Council erred when it determined that the new
evidence that Plaintiff submitted was insufficient to trigger review of the ALJ’s decision.

5

Furthermore, the new St. Joseph’s Hospital treatment notes indicate that Dr. Iosilevick cosigned Plaintiff’s January 7, 2014 intake form. See AR at 712.
-9-

Moreover, the evidence that Plaintiff submitted to the Court includes two letters from Dr.
Reddy claiming “100% disability.” See Dkt. No. 16 at 2-3. 6 Defendant argues that the Court
should disregard Dr. Reddy’s letters because they are “inconsistent” with Dr. Reddy’s treatment
notes reporting “good attention/concentration, judgment, and insight.” See Dkt. No. 19 at 27.
Defendant’s scant citations to the record do not necessarily contradict Dr. Reddy’s conclusion
that Plaintiff is disabled. Furthermore, as stated above, it is the ALJ’s not the Court’s function to
first determine what, if any, weight to give to Dr. Reddy’s opinions. See Lesterhuis, 805 F.3d at
88.
On the facts of this case, the ALJ’s ultimate conclusion and credibility assessment is
incomplete without a review of Plaintiff’s continued history of treatment within the relevant time
period. Thus, because the new evidence submitted to the Appeals Council and to the Court
contradicts the ALJ’s decision, remand is necessary. See Perez, 77 F.3d at 46; see also

6

Unlike the evidence that Plaintiff submitted to the Appeals Council, the Court can consider the
evidence that Plaintiff submitted for the first time to the Court only if it passes muster under the
three-prong test announced in Tirado. See Tirado, 842 F.2d at 597; see also Wilbon v. Colvin,
No. 15-CV-756-FPG, 2016 WL 5402702, *3 (W.D.N.Y. Sept. 28, 2016). At step one, the
plaintiff must show that the evidence is “’”new” and not merely cumulative of what is already in
the record.’” Id. (quotation omitted). At step-two, the plaintiff must show that the evidence is
“material.” Id. (citation omitted). To show “materiality” the evidence must be relevant to the
time period for which benefits were denied, probative, and provide a “reasonable possibility that
the new evidence would have influenced the Secretary to decide [Plaintiff’s] application
differently.” Id. (citation omitted). Finally, at step-three, the plaintiff must show “good cause”
for failing to present the evidence earlier. Id. (citation omitted).
In this case, it is immaterial that the evidence that Plaintiff submitted to the Court was
generated after the ALJ decision because it “directly supports many of [Plaintiff’s] earlier
contentions regarding [her] condition.” Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004).
Furthermore, Dr. Reddy’s letter provides an assessment of Plaintiff’s condition while under her
control prior to the ALJ’s final decision. Moreover, Dr. Reddy’s assessment “suggests that,
during the relevant time period, [Plaintiff’s] condition was far more serious than previously
thought[.]” Id. Therefore, the Court finds that it may consider Dr. Reddy’s letter.
- 10 -

Lesterhuis, 805 F.3d at 88; Sobolewski v. Apfel, 985 F. Supp. 300, 311 (E.D.N.Y. 1997); 42
U.S.C. § 405(g).
On remand the ALJ should consider whether the evidence contained in Exhibit 30F, as
well as the letters from Dr. Reddy in which she stated that Plaintiff is 100% disabled, alters his
judgment.

IV. CONCLUSION
Having reviewed 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 judgment on the pleadings, see Dkt. No 16, is
GRANTED; and the Court further
ORDERS that Defendant’s motion for judgment on the pleadings, see Dkt. No. 19, is
DENIED; and the Court further
ORDERS that the Commissioner’s decision is REVERSED and this matter is
REMANDED to the ALJ for further proceedings consistent with this Memorandum-Decision
and Order pursuant to sentence four of the Act 7; and the Court further

7

A sentence four as opposed to a sentence six remand is appropriate because the principal error
in this case is the Appeals Council’s failure to meaningfully review evidence submitted to it for
the first time. See Sears v. Colvin, No. 8:12-CV-570, 2013 WL 6506496, *4 (N.D.N.Y. Dec. 12,
2013) (holding that evidence submitted to Appeals Council is not “‘newly acquired evidence’ as
contemplated by sentence six,” therefore a sentence four remand is appropriate); see also Djuzo
v. Comm’r of Soc. Sec., No. 5:13-CV-272, 2014 WL 5823104, *5 & n.12 (N.D.N.Y. Nov. 7,
2014) .
- 11 -

ORDERS that the Clerk of the Court shall enter judgment in favor of Plaintiff and close
this case.

IT IS SO ORDERED.

Dated: January 18, 2017
Syracuse, New York

- 12 -