Wilson v. Colvin

Filing 30

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines' June 27, 2014 28 Report and Recommendation is REJECTED. That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with the Order. Signed by Chief Judge Gary L. Sharpe on 9/29/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PAULA A. WILSON,
Plaintiff,

7:13-cv-295
(GLS/ESH)

v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Legal Aid Society of Northeastern NY
17 Hodskin Street
PO Box 648
Canton, NY 13617
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261

CYNTHIA A. EYLER, ESQ.

KRISTINA D. COHN
ROBERT R. SCHRIVER
Special Assistant U.S. Attorneys

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Paula A. Wilson challenges defendant Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI), seeking review under 42 U.S.C.
§§ 405(g) and 1383(c)(3). 1 (Compl., Dkt. No. 1.) In a Report and
Recommendation (R&R) filed June 27, 2014, Magistrate Judge Earl S.
Hines recommended that the Commissioner’s decision be affirmed. (Dkt.
No. 28.) Pending are Wilson’s objections to the R&R. (Dkt. No. 29.) For
the reasons stated below, the court declines to adopt the Magistrate
Judge’s Recommendation, and reverses and remands the Commissioner’s
decision.
II. Background2
On February 26, 2010, Wilson filed applications for DIB and SSI
under the Social Security Act. (Tr. 3 at 121-22, 173-87.) After her
applications were denied, Wilson requested a hearing before an

1

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations governing
SSI are omitted.
2

The court incorporates the factual recitations of the parties and Judge Hines. ( See
generally Dkt. Nos. 21, 25, 28.)
3

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 11.)

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Administrative Law Judge (ALJ), which was held on June 28, 2011. (Id. at
53-114, 123-29.) On November 14, 2011, the ALJ issued a decision
denying the requested benefits, which became the Commissioner’s final
determination upon the Social Security Administration Appeals Council’s
denial of review. (Id. at 1-7, 28-52.)
Wilson commenced the present action by filing a complaint on March
13, 2013, seeking judicial review of the Commissioner’s determination.
(Compl.) After receiving the parties’ briefs, Judge Hines issued an R&R
recommending that the Commissioner’s decision be affirmed. (See
generally Dkt. No. 28.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
3

N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
Wilson raises one specific objection to the R&R regarding new
evidence submitted to the Appeals Council, which the court will review de
novo. (Dkt. No. 29 at 4-6, 8-10.) The remainder of the R&R will be
reviewed for clear error. 4
A.

New Evidence
Wilson argues that the Commissioner erred in ignoring new and

material evidence from treating psychiatrist Mariam Asar. (Dkt. No. 29 at
4-6.) According to Wilson, Judge Hines improperly refused to consider
such evidence as part of the administrative record. (Id. at 5.) Further,
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Wilson purports to object to the R&R on three grounds. (Dkt. No. 29 at 1-10.)
However, the substance of Wilson’s objections to the ALJ’s credibility decision and the weight
afforded to the opinion of nonexamining psychological consultant T. Bruni was previously raised
n Wilson’s brief and considered and rejected by Judge Hines. (Dkt. No. 21 at 16-19; Dkt. No.
28 at 8-20; Dkt. No. 29 at 1-4, 6-8.) These objections, therefore, are general and do not warrant
de novo review. See Almonte, 2006 WL 149049 at *4.

4

Wilson contends that Dr. Asar’s treatment records and opinion support her
allegations of disabling mental impairments. (Id. at 5-6.)
The Appeals Council shall consider “new and material” evidence if it
“relates to the period on or before the date of the [ALJ] hearing decision.”
20 C.F.R. § 404.976(b)(1); see Perez, 77 F.3d 41, 45 (2d Cir. 1996). The
Appeals Council “will 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.” 20 C.F.R. § 404.970(b). However, even if “the Appeals Council
denies review after considering new evidence, the [Commissioner]’s final
decision necessarily includes the Appeals Council’s conclusion that the
ALJ’s findings remained correct despite the new evidence.” Perez, 77 F.3d
at 45 (internal quotation marks and citation omitted). Accordingly, the
additional evidence becomes part of the administrative record reviewed by
the district court. Id. at 45-46.
Here, after the ALJ rendered his decision, Wilson submitted
additional medical evidence to the Appeals Council. (Tr. at 2, 5-6, 111249.) As Judge Hines noted, the Appeals Council accepted and considered
portions of that evidence, but declined to consider the remaining items
because, according to the Appeals Council, they pertained to a period after
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November 14, 2011, the date of the ALJ’s decision. (Dkt. No. 28 at 2-3 n.3;
Tr. at 2.) The Appeals Council returned the rejected evidence to Wilson for
use in a new claim. (Tr. at 2); see 20 C.F.R. § 404.976(b)(1). After
commencing the present action, Wilson requested permission to amend
the administrative record to include these returned medical exhibits, which
request was granted. (Dkt. Nos. 18, 19.) Thereafter, Wilson filed the
additional records, including the treatment notes of Dr. Asar, dated August
23, 2011 through March 8, 2012. (See generally Dkt. No. 24.) In addition,
Wilson submitted a January 2012 opinion of Dr. Asar, which indicates that
Wilson suffers marked limitations in her ability to interact appropriately with
supervisors and co-workers, respond to usual work situations, and respond
to changes in a routine work setting. (See generally Dkt. No. 23.)
According to Dr. Asar, Wilson has suffered such limitations since August
23, 2011. (Id. at 3.)5

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The decision of the Appeals Council indicates that Wilson submitted Dr. Asar’s records
dated January 17, 2012 through March 8, 2012 for consideration. (Tr. at 2.) However, Wilson
purports to have submitted to the Appeals Council Dr. Asar’s records from August 23, 2011
hrough March 8, 2012. (Dkt. No. 18; Dkt. No. 29 at 1, 4-5.) It is unclear if the Appeals Council
overlooked Dr. Asar’s records created during the relevant time period, or if Wilson has
submitted new evidence that was not included as part of the original administrative proceedings.
However, the Commissioner did not object to the inclusion of Dr. Asar’s treatment notes in the
administrative transcript or argue that they differed from those submitted to the Appeals Council.
Dkt. No. 18; see generally Dkt. No. 25.) In any event, it appears that the Appeals Council had
before it Dr. Asar’s January 17, 2012 opinion, which relates to the relevant time period
nasmuch as Dr. Asar opined that Wilson’s limitations began prior to the ALJ’s decision. (Dkt.

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In her brief before Judge Hines, Wilson argued that, among other
things, the ALJ: (1) should have contacted Dr. Asar before discrediting her
subjective complaints due to a lack of support in her psychiatric treatment
notes; (2) erred in granting significant weight to the opinion of
nonexamining psychological consultant Bruni because it is inconsistent
with the opinion of Dr. Asar; and (3) erred in affording little weight to the
opinion of licensed social worker MaryAnn VanBuskirk because her opinion
is supported by the treatment notes and opinion of Dr. Asar. (Dkt. No. 21
at 18-20.) Judge Hines reasonably concluded that the ALJ was not under
a duty to contact Dr. Asar because he was unaware of her treatment
relationship with Wilson. (Dkt. No. 28 at 8 n.9.) As Judge Hines pointed
out, Wilson did not begin seeing Dr. Asar until two months after the
administrative hearing, and none of Dr. Asar’s records were submitted to
the ALJ for review. (Id.) Further, Judge Hines noted that Wilson failed to
argue that Dr. Asar’s records were new and material evidence that the
Appeals Council failed to consider. (Id.)
Wilson now argues that the Commissioner erred in failing to consider

No. 23 at 3; Tr. at 15-16); see Flagg v. Colvin, No. 5:12-CV-0644, 2013 WL 4504454 at *5
N.D.N.Y. Aug. 22, 2013) (rejecting the argument that the Appeals Council may properly dismiss
a physician’s opinion solely because it was completed after the date of the ALJ’s decision.).

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this new and material evidence from Dr. Asar. (Dkt. No. 29 at 4-6.)
Generally, arguments may not be raised for the first time in objections to a
magistrate judge’s report. See Lewyckyj v. Colvin, No. 3:13-cv-126, 2014
WL 3534551, at *2 (N.D.N.Y. July 17, 2014); Rosello v. Barnhart, No. 02
Civ. 4629, 2004 WL 2366177, at *3 (S.D.N.Y. Oct. 20, 2004); Abu-Nassar
v. Elders Futures. Inc., No. 88 Civ. 7906, 1994 WL 445638, at *5 n.2
(S.D.N.Y. Aug. 17, 1994). However, because Wilson moved to amend the
administrative record to include Dr. Asar’s treatment notes and opinion,
and because several of her arguments before Judge Hines relied on Dr.
Asar’s treatment notes and opinion, the court will review this objection de
novo.
Given that the Commissioner must provide “‘good reasons’ for the
weight given to the treating source’s opinion,” Petrie v. Astrue, 412 F. App’x
401, 407 (2d Cir. 2011) (citations omitted), and the potentially dispositive
nature of Dr. Asar’s opinion, the Appeals Council’s failure to consider the
treatment notes and opinion of Dr. Asar requires remand. See James v.
Comm’r of Soc. Sec., No. 06-CV-6180, 2009 WL 2496485, at *10 (E.D.N.Y.
Aug. 14, 2009) (holding that “where newly submitted evidence consists of
findings made by a claimant’s treating physician, the treating physician rule
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applies, and the Appeals Council must give good reasons for the weight
accorded to a treating source’s medical opinion”). Notably, the ALJ
discounted the opinion of treating primary care physician Elizabeth Logalbo
that Wilson is incapable of performing the basic mental demands of
unskilled work because there were no clinical or diagnostic findings to
support the severity of limitations she found, nor any evidence that Dr.
Logalbo ever performed a mental status examination of Wilson. (Tr. at 42.)
On the other hand, Dr. Asar’s treatment records from the relevant time
period include mental status examinations revealing that Wilson’s affect
was pleasant but labile, speech was loud and pressured, thought
processes were somewhat circumstantial and over-elaborative with some
looseness of association, thought content was preoccupied with all the
stressors in Wilson’s life, attention span was somewhat distractible, insight
and judgement was limited, and impulse control was poor. (Dkt. No. 24 at
12, 15, 17-18, 21, 24, 27-28.) In addition, in August 2011, Dr. Asar
assigned Wilson a Global Assessment of Functioning (GAF) score of fortyfive, indicating serious symptoms. 6 (Id. at 28.)
6

The GAF scale “ranks psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Pollard v. Halter, 377 F.3d 183, 186 n.1 (2d
Cir. 2004). A GAF score between forty-one and fifty signals “‘[s]erious symptoms (e.g., suicidal
deation, severe obsessional rituals, frequent shoplifting) [or] any serious impairment in social,

9

Although the Appeals Council erred in failing to consider and weigh
Dr. Asar’s opinion, the court is mindful that there may be reasons for
discounting her opinion. See 20 C.F.R. § 404.1527(c). Nevertheless,
because “the propriety of agency action must be evaluated on the basis of
stated reasons,” the Commissioner’s findings cannot be sustained,
Treadwell v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983), and remand for
further administrative proceedings is appropriate, see, e.g., Flagg, 2013
WL 4504454 at *7 (explaining that remand for reconsideration of new
medical evidence is required where the Appeals Council’s failure to provide
good reasons for discounting a treating physician’s opinion frustrates
meaningful review).
B.

Remaining Findings and Conclusions
As to the remainder of Wilson’s objections, the Commissioner is

directed to reevaluate Wilson’s subjective complaints, as well as the other
medical opinions of record, in light of Dr. Asar’s treatment notes and
opinion.
V. Conclusion

occupational, or school functioning (e.g., no friends, unable to keep a job).’” Zabala v. Astrue,
595 F. 3d. 402, 406 n.2 (2d Cir. 2010) (quoting Diagnostic and Statistical Manual of Mental
Disorders 34 (4th ed., Text Rev. 2000)).

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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ June 27, 2014
Report and Recommendation (Dkt. No. 28) is REJECTED; and it is further
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Order; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
September 29, 2014
Albany, New York

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