Drysdale v. Commissioner of Social Security

Filing 52

OPINION AND ORDER re: 46 MOTION for Judgment on the Pleadings . filed by Commissioner of Social Security, 44 MOTION to Remand / Notice of Motion for a Remand to Apply the Correct Legal Standard and Consider New and Material Evidence. filed by April K. Drysdale. For these reasons, the plaintiff's motion is DENIED, and the Commissioner's cross-motion is GRANTED. The Clerk of Court is directed to terminate the motions at Docket Entry No. 44 and 46 and close this case. SO ORDERED. (Signed by Magistrate Judge Sarah Netburn on 6/16/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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APRIL K. DRYSDALE,
Plaintiff,

6/16/2015

14-CV-01722 (SN)
OPINION AND ORDER

-againstCAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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SARAH NETBURN, United States Magistrate Judge:

Plaintiff April K. Drysdale brings this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), 42 U.S.C. § 405(g), seeking judicial review of the final determination
of the Commissioner of Social Security (the “Commissioner”) denying her application for
Disability Insurance Benefits (“DIBs”) and Supplemental Security Income (“SSI”) (collectively,
“disability benefits”). The plaintiff moved, and the Commissioner cross-moved, for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
The Court finds that the administrative law judge (“ALJ”) correctly applied the treating
physician rule, and the new evidence submitted to the Appeals Council is either cumulative or
not material. Accordingly, the plaintiff’s motion for judgment on the pleadings is DENIED, and
the Commissioner’s cross-motion is GRANTED.
BACKGROUND
On August 30, 2010, Drysdale applied for disability benefits, alleging a disability onset
date of March 1, 2009, due to depression, bipolar disorder, and an injury to both arms. It is her
fourth application for benefits since 2002. On December 22, 2010, the Social Security
Administration (“SSA”) denied the application, and Drysdale requested a hearing. Her request

was untimely, but the SSA found that she had “demonstrated good cause for the late filing by
explaining that she had been preoccupied with pressing housing issues and court appearances to
resolve rent arrears.” (AR 161.) On February 9, 2012, Drysdale appeared for a hearing before
ALJ Mark Hecht. On June 8, 2012, the ALJ denied Drysdale’s application, finding her not
disabled under the Act. Drysdale filed an appeal, to which she attached new evidence. On
December 3, 2013, the Appeals Council declined to consider the newly submitted evidence and
denied her request for review, rendering the ALJ’s decision final. On March 5, 2014, Drysdale
filed this action, and on August 22, 2014, pro bono counsel entered an appearance on her behalf.1
Drysdale and the Commissioner have each provided a summary of the relevant evidence
contained in the administrative record. See Pl Mem. at 2-9 (ECF No. 45); Comm’r Mem. at 1-14
(ECF No. 47). The Court adopts the parties’ summaries, which do not conflict in any material
way, as accurate and complete for purposes of the issues raised in this suit. We discuss the
portions of the record pertinent to the adjudication of this case in section III below.
DISCUSSION
I.

Standard of Review
A party may move for judgment on the pleadings “[a]fter the pleadings are closed – but

early enough not to delay trial.” Fed. R. Civ. P. 12(c). A Rule 12(c) motion should be granted “if,
from the pleadings, the moving party is entitled to judgment as a matter of law.” Burns Int’l Sec.
Servs., Inc. v. Int’l Union, United Plant Guard Workers of Am. & Its Local 537, 47 F.3d 14, 16
(2d Cir. 1995) (per curiam). In reviewing a decision of the Commissioner, a court may “enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing

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The Court acknowledges and appreciates the appearance of pro bono counsel on behalf of Ms. Drysdale.
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the decision of the Commissioner . . . with or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g).
A determination of the ALJ may be set aside only if it is based upon legal error or is not
supported by substantial evidence. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). “Substantial
evidence is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the findings of the
Commissioner as to any fact are supported by substantial evidence, those findings are
conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). See also Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the
determination is one to be made by the factfinder.”). This means that if there is sufficient
evidence to support the final decision, the Court must grant judgment in favor of the
Commissioner, even if there also is substantial evidence for the plaintiff’s position. See Brault v.
Comm’r of Soc. Sec’y, 683 F.3d 443, 448 (2d Cir. 2012) (finding that “[t]he substantial evidence
standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder
would have to conclude otherwise” (citation and quotation marks omitted; emphasis in original)).
“[I]n order to accommodate ‘limited and meaningful’ review by a district court, the ALJ
must clearly state the legal rules he applies and the weight he accords the evidence considered.”
Rivera v. Astrue, 10 Civ. 4324 (RJD), 2012 WL 3614323, at *8 (E.D.N.Y. August 21, 2012)
(citation omitted). Without doing so, the ALJ deprives the Court of the ability to determine
accurately whether his opinion is supported by substantial evidence and free of legal error.
Where the ALJ fails to provide an adequate roadmap for his reasoning, remand is appropriate.
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (“[W]e do believe that the crucial factors in

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any determination must be set forth with sufficient specificity to enable us to decide whether the
determination is supported by substantial evidence.”).
II.

Definition of Disability
A claimant is disabled under the Act if he demonstrates an “inability to engage in any

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). A
determinable physical or mental impairment is defined as one that “results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). A claimant will be
determined to be disabled only if the impairments are “of such severity that he 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.” 42 U.S.C.
§ 423(d)(2)(A).
Under the authority of the Act, the SSA has established a five-step sequential evaluation
process when making disability determinations. See 20 C.F.R. § 404.1520; Jasinski v. Barnhart,
341 F.3d 182, 183-84 (2d Cir. 2003). The steps are followed in order: if it is determined that the
claimant is not disabled at a step of the evaluation process, the evaluation will not progress to the
next step. First, the Commissioner determines whether the claimant is currently engaged in
substantial gainful activity. Second, the Commissioner determines whether the claimant has a
“severe impairment” that significantly limits her physical or mental ability to do basic work
activities. Third, if the claimant has a severe impairment, the Commissioner determines whether
the claimant has an impairment included in the Listings. 20 C.F.R. Pt. 404, subpt. P, app’x 1.

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Fourth, if the claimant does not have a listed impairment, the Commissioner determines whether
the claimant retains the residual functional capacity (“RFC”), despite her severe impairment, to
perform past work. If not, the burden shifts to the Commissioner at the fifth and last step to show
that other work exists in the national and local economies that the claimant can perform, given
her RFC, age, education, and past relevant work experience. 20 C.F.R. § 404.1560(c)(2);
Jasinski, 341 F.3d at 183-84. A claimant bears the burden of proof as to the first four steps.
Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
The regulations provide additional guidance for evaluating mental impairments. 20
C.F.R. § 404.1520a(c)(1). Calling it a “complex and highly individualized process,” the section
focuses the ALJ’s inquiry on determining how the impairment “interferes with [the claimant’s]
ability to function independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R.
§ 404.1520a(c)(2). For mental disorders, a claimant must show in part that she has at least two of
the so-called “paragraph B criteria” or the “paragraph C criteria.” The paragraph B criteria
require at least two of the following: (1) marked restriction of activities of daily living; (2)
marked difficulties in maintaining social functioning; (3) marked difficulties in maintaining
concentration, persistence, or pace; and (4) repeated episodes of decompensation. 20 C.F.R. Pt.
404, subpt. P, app’x 1 § 12.04(B). The first three are rated on a “five-point scale”: none, mild,
moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). A “marked” limitation is “more
than moderate but less than extreme” and “may arise when several activities or functions are
impaired, or even when only one is impaired, as long as the degree of limitation is such as to
interfere seriously with your ability to function independently, appropriately, effectively and on a
sustained basis.” 20 C.F.R. Pt. 404, subpt. P, app’x 1 § 12.00(c). The last area – episodes of
decompensation – is rated on a “four-point scale”: none, one or two, three, and four or more. Id.

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The paragraph C criteria require: (1) repeated episodes of decompensation, each for extended
duration; (2) a residual disease process that has resulted in such marginal adjustment that even a
minimal increase in mental demands or change in the environment would be predicted to cause
the individual to decompensate; or (3) a current history of one or more years’ inability to
function outside a highly supportive living arrangement, with an indication of continued need for
such an arrangement. 20 C.F.R. Pt. 404, subpt. P, app’x 1 § 12.04(B).
The Diagnostic and Statistical Manual of Mental Disorders (“DSM”) defines “bipolar
disorder, mixed” as:
a period of time (lasting at least 1 week) in which the criteria are met
both for a Manic Episode and for a Major Depressive Episode nearly
every day[]. The individual experiences rapidly alternating moods
(sadness, irritability, euphoria) . . . . The symptom presentation
frequently includes agitation, insomnia, appetite dysregulation,
psychotic features, and suicidal thinking. The disturbance must be
sufficiently severe to cause marked impairment in social or
occupational functioning or to require hospitalization, or it is
characterized by the presence of psychotic features []. The
disturbance is not due to the direct physiological effects of a
substance.
Am. Psychiatric Ass’n, DSM-IV 333 (4th ed. rev. 2000).
III.

Analysis
On appeal, Drysdale argues that remand is appropriate because (1) the ALJ failed to

apply the treating physician rule properly, and (2) the Appeals Council erred when it did not
consider newly submitted evidence. The Commissioner argues that the Appeals Council’s
decision not to consider the new evidence was proper and that the ALJ’s decision otherwise is
free of legal error and supported by substantial evidence.

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A.

Treating Physician Rule
1.

Standard

The “treating physician rule” instructs the ALJ to give controlling weight to the opinions
of a claimant’s treating physician, as long as the opinion is well-supported by medical findings
and is not inconsistent with the other evidence in the record. 20 C.F.R. § 404.1527(c)(2).
Affording a treating physician’s opinion controlling weight reflects the reasoned judgment that
treating physicians are “most able to provide a detailed, longitudinal picture of [the claimant’s]
medical impairment(s) and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief hospitalizations.” 20 C.F.R.
§ 404.1527(c)(2). See also Petrie v. Astrue, 412 F. App’x 401, 405 (2d Cir. 2011); Mongeur v.
Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (per curiam); Mejia v. Barnhart, 261 F. Supp.
2d 142, 148 (E.D.N.Y. 2003) (“[A]s the report of a primary treatment provider, [the
psychotherapist’s] report should have been accorded more than ‘little’ weight.” (citations
omitted)).
Licensed clinical social workers are not “acceptable medical sources” due controlling
weight under the treating physician rule, but they are still “important” “other sources” to whom
the ALJ should look to show the severity of a claimant’s impairments or ability to work. See
Diaz, 59 F.3d at 313 (citing 20 C.F.R. §404.1527); 20 C.F.R. § 404.1513(a)-(d) (listing five
categories of “acceptable medical sources”); Social Security Ruling (“SSR”) 06-03p, 2006 WL
2329939, at *2-3 (Aug. 9, 2006).
Where mental health treatment is at issue, the treating physician rule takes on added
importance. A mental health patient may have good days and bad days; she may respond to

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different stressors that are not always active. Thus, the longitudinal relationship between a
mental health patient and her treating physician provides the physician with a rich and nuanced
understanding of the patient’s health that cannot be readily achieved by a single consultative
examination. See Canales v. Comm’r of Soc. Sec’y, 698 F. Supp. 2d 335, 342 (E.D.N.Y. 2010)
(“Because mental disabilities are difficult to diagnose without subjective, in-person examination,
the treating physician rule is particularly important in the context of mental health.”) (citing
Richardson v. Astrue, 09 Civ. 1841 (SAS), 2009 WL 4793994, at *7 (S.D.N.Y. Dec. 14, 2009)).
The ALJ can discount a treating physician’s opinion, however, if the ALJ believes that it
“lack[s] support or [is] internally inconsistent.” Duncan v. Astrue, 09 Civ. 4462 (KAM), 2011
WL 1748549, at *19 (E.D.N.Y. May 6, 2011). “When other substantial evidence in the record
conflicts with the treating physician’s opinion, [] that opinion will not be deemed controlling.
And the less consistent that opinion is with the record as a whole, the less weight it will be
given.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999).
When the ALJ discredits the opinion of a treating physician, the regulations direct her to
“always give good reasons in [her] notice of determination or decision for the weight [given a]
treating source’s opinion.” 20 C.F.R. § 404.1527(c)(2); Snell, 177 F.3d at 134. The ALJ first
must consider: (1) the length of the treatment relationship and the frequency of examination; (2)
the nature and extent of the treatment relationship; (3) the evidence that supports the treating
physician’s report; (4) how consistent the treating physician’s opinion is with the record as a
whole; (5) the specialization of the physician in contrast to the condition being treated; and (6)
any other significant factors. 20 C.F.R. § 404.1527(c)(2)-(6). She need not recite every piece of
evidence in relation to these factors, however, so long as “the evidence of record permits [the
Court] to glean the rationale of an ALJ’s decision.” Mongeur, 722 F.2d at 1040. See Marinez-

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Paulino v. Astrue, 11 Civ. 5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2010) (“It
is not necessary that the ALJ recite each factor explicitly, only that the decision reflects
application of the substance of the rule.”). “Failure to properly apply the treating physician’s
rule, or consider the required factors, constitutes legal error and is a sufficient basis for remand.”
Rolon v. Comm’r of Soc. Sec’y, 994 F. Supp. 2d 496, 506 (S.D.N.Y. 2014). See Schaal v. Apfel,
134 F.3d 496, 505 (2d Cir. 1998) (“[B]ecause the Commissioner failed to provide plaintiff with
‘good reasons’ for the lack of weight attributed to her treating physician’s opinion as required by
SSA regulations . . . remand is necessary.”).
2.

Application

The ALJ gave “significant weight” to the findings of treating psychiatrist Dr. PierreAntoine from his October 2011 report that Drysdale was “moderately limited” for most mental
tasks. (AR 169.) Neither party disputes that this portion of the ALJ’s decision is supported by
substantial evidence and does not contain legal error. The ALJ gave “little weight,” however, to
the conclusion that Drysdale has “markedly limited ability to maintain socially appropriate
behavior, respond appropriately to changes in the work setting, or tolerate even low stress work.”
(Id.) In so doing, the ALJ found that there is “simply no objective evidence” to support this
conclusion. (Id.)
Drysdale contends that the ALJ set the bar too high when deciding whether to afford Dr.
Pierre-Antoine’s opinion controlling weight. She argues that requiring “objective evidence” guts
the treating physician rule because that rule favors opinions supported by appropriate diagnostic
techniques, not cold objective facts.
Drysdale’s argument is well taken to the extent it highlights the value the SSA assigns to
opinion evidence. But that opinion cannot be unmoored from clinical findings, which are, of

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course, a form of objective evidence. And it cannot be substantially contradicted by the evidence
in the record. Dr. Pierre-Antoine’s opinion is not supported by clinical findings and is
undermined by his own conclusions and the conclusions of other examiners. Accordingly,
because the Court must affirm the ALJ so long as the decision is supported by substantial
evidence and free of legal error – even if the Court might come to a different disability
determination – Drysdale’s argument is rejected. See Brault, 683 F.3d at 448 (finding that “[t]he
substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a
reasonable factfinder would have to conclude otherwise” (citation and internal quotation marks
omitted; emphasis in original)); Alston, 904 F.2d at 126 (“Where there is substantial evidence to
support either position, the determination is one to be made by the factfinder.”).
Drysdale saw Dr. Pierre-Antoine and social worker Gilbert Calcano of the Upper
Manhattan Mental Health Center (“UMMHC”) bi-weekly for 21 months, beginning on March 9,
2010. Midway through her treatment, on October 29, 2011, Dr. Pierre-Antoine completed a
Psychiatric/Psychological Impairment Questionnaire. He identified the following “positive
clinical findings” in support of his opinion: poor memory; decreased energy; generalized
persistent anxiety; feelings of guilt/worthlessness; difficulty thinking or concentrating; and
disturbances of appetite, sleep, and mood. (AR 446.) These clinical findings are also consistent
with her “primary symptoms” that he identified as dysphoria, sleep disturbance, fluctuating
appetite, and poor concentration and memory problems. (AR 445.) He did not list a deficiency in
social functioning as a symptom. Moreover, Dr. Pierre-Antoine did not indicate other positive
clinical findings that would have supported the marked limitations he later identified and which
the ALJ rejected. For example, he did not select from a list of clinical findings that Drysdale
exhibits “hostility or irritability,” “catatonia or grossly disorganized behavior,” “social

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withdrawal or isolation,” or “illogical thinking or loosening of associations.” (AR 446.) These
findings would have been more consistent with a conclusion that Drysdale was markedly limited
in her ability to maintain socially appropriate behavior, respond appropriately to changes in the
work setting, or adhere to basic standards of neatness.
In addition, Dr. Pierre-Antoine concluded that Drysdale was “incapable” of even low
work stress. (AR 457.) But again, when identifying the positive clinical findings to support his
diagnosis, he did not select from the list “emotional lability” or “recurrent panic attacks” – both
of which might be present for someone incapable of experiencing any workplace stress. (AR
446.) Finally, while Dr. Pierre-Antoine concluded that Drysdale’s impairments – her generalized
dissatisfaction with life and sleep, appetite, and mood disturbances – were expected to last 12
months and that she would likely miss work more than three times a month, he also diagnosed
her as a malingerer. In light of these clinical findings, which the Court assumes are supported by
diagnostic techniques, the ALJ was well within his discretion to reject certain of Dr. PierreAntoine’s conclusions.
Otherwise, and throughout her treatment with Dr. Pierre-Antoine and Calcano, Drysdale
was calm and cooperative with coherent and goal-directed thought processes and appropriate
affect. These records are inconsistent with a marked limitation in social functioning. For
example, at her January and February 2012 appointments, Calcano described her as well-dressed
with fair insight and judgment. Drysdale described feeling anxious and depressed because she
had moved in with her mother and her fourth disability benefits application was pending.
She also exhibited limited intellectual capacity and poor impulse control. Dr. PierreAntoine diagnosed Drysdale with multiple substance abuse and bipolar disorder, mixed (296.62),
and assigned her a global assessment of functioning (“GAF”) score that varied during her

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treatment between 50 and 60. In a form letter dated November 19, 2011, Calcano checked a box
indicating that Drysdale “is totally disabled without consideration of any past or present drug
and/or alcohol use. Drug and/or alcohol use is not a material cause of this individuals’
disability.” (AR 450.) He further concluded that her “use of drugs and/or alcohol is a symptom of
her condition, and/or is a form of self-medication. The disability is independent of any use.” (Id.)
Despite continuing to struggle with alcohol and drug abuse, Calcano described her condition as
“stable.” (AR 459.)
The record also contains reports by providers at Conifer Park inpatient treatment
program, consultative psychiatrist Dr. Haruyo Fujiwaki, and consultative internist Dr. Aurelio
Salon. These records provide substantial support for the ALJ’s findings.
Before being admitted to Conifer Park in May 2010, Drysdale reported that she had been
using alcohol at a rate of four to five pints daily; using cocaine at the rate of an “eight ball” every
three to four days; and was still smoking cigarettes, “3-4 pkg when high, 3-4 days per week.”
(AR 397-406.) Upon admission, mental status findings indicated that Drysdale was wellgroomed, cooperative, and hyperactive. Her mood was moderately anxious and depressed, and
her affect was appropriate. She reported isolation and poor sleep. Upon discharge approximately
two weeks later, her mental status findings indicated that her thought process was coherent, goal
directed and appropriate. She was diagnosed with general anxiety disorder. Her prognosis was
“fair,” and Drysdale was deemed “employable.” (AR 393-94, 408.) She relapsed at least twice
since her discharge. At her hearing before the ALJ on February 9, 2012, Drysdale admitted that
she had started to use cocaine again the month before.
On November 9, 2010, Drysdale took the subway to her appointments with Drs. Fujiwaki
and Salon. She reported that she was drinking two to three bottles of liquor two to three times per

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week, and used cocaine one month ago. She self-reported feeling “always depressed,” frequently
waking during the night, and sometimes hearing voices calling her name. (AR 409.) She
described being able to dress, bathe, and groom herself, but that she lacked the energy to “do
cooking, cleaning, laundry, and food shopping.” (AR 411.) Dr. Fujiwaki found that Drysdale was
cooperative, related well to him, and had “adequate” social skills and overall presentation.
(AR 410.) Her thought processes were coherent and goal directed, her insight and judgment were
“fair to poor,” and she had below average intellectual functioning. (Id.) Speaking to Drysdale’s
RFC, Dr. Fujiwaki concluded:
Vocationally, she is able to follow and understand simple directions
and instructions. She can perform simple tasks independently. She
has some difficultly to maintain attention and concentration. She is
able to maintain a regular schedule with some difficulty due to
substance abuse problems. She can learn new tasks with extended
time. . . . She can make some simple decisions. She can relate with
others and [] deal with stress to a certain extent.
(AR 412.) Dr. Fujiwaki attributed much of the limitations on Drysdale’s ability to work to her
substance abuse. He diagnosed her with mood disorder not otherwise specified (“NOS”),
depressive disorder NOS, anxiety disorder NOS, psychotic disorder NOS, and alcohol and
cocaine dependence.
Drysdale was also examined by Dr. Salon, an internist. The mental health screen was a
minor part of her overall physical examination (and Drysdale does not challenge the ALJ’s
conclusions related to physical limitations). Dr. Salon noted that Drysdale was accompanied to
the exam facility by a social worker, dressed appropriately, maintained good eye contact, and
appeared oriented. He also found her affect to be “normal” and indicated that there was no
evidence of hallucinations, delusions, impaired judgment, or “significant memory impairment.”
(ARE 416.)

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The ALJ considered all of this evidence. Overall, all of the providers found that Drysdale
consistently related well, was cooperative, and had coherent, goal-directed thoughts. She also
consistently demonstrated fair to poor judgment, was limited to average intellectual functioning,
and demonstrated poor impulse control. The ALJ acknowledged Drysdale’s moderate
impairments, but also found that her impairments were not as “marked” as she purports them to
be. The evidence in the record supports the ALJ’s decision to give “little weight” to the findings
of marked limitation.
That the ALJ weighed the evidence and reached a different conclusion than another
factfinder might have reached does not establish legal error. He was not required to afford every
finding by Dr. Pierre-Antoine controlling weight in light of the less favorable findings in the
record. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (where “the record plainly
contained conflicting psychological evaluations of [the claimant’s] present condition . . . it was
within the province of the ALJ” to accept portions of a doctor’s opinion while rejecting other
portions); Snell, 177 F.3d at 133 (where the record contained evidence from several consultative
physicians who made less favorable findings with which the treating physicians’ opinions were
“inconsistent,” the treating physician’s opinions were not due controlling weight) (citing 20
C.F.R. § 404.1527(d)(2)); Legg v. Colvin, 574 F. App’x 48, 49 (2d Cir. 2014) (“The ALJ
appropriately noted that the objective medical evidence, the reports of other physicians, and [the
treating physician’s] own treatment notes did not support the diagnoses and serious functional
limitations contained in his statements.”).
Finally, despite Drysdale’s significant impairments, DIBs and SSI are not simply a
diagnosis-based benefits program: under the Act, it is not enough for an applicant to be
diagnosed with bipolar disorder or to have some impairments. An applicant must have diagnoses

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that impair her capacity plus an inability to do past work or adjust to other work. See 42 U.S.C.
§ 423(d)(1)-(2). It is the duty of the ALJ to weigh the evidence in the record and, where
appropriate, conclude that a claimant is not so impaired as to require a finding of disabled under
the Act. See Veino, 312 F.3d at 588. See Matta v. Astrue, 508 F. App’x 53, 56-57 (2d Cir. 2013)
(affirming the ALJ’s denial of benefits to a claimant with bipolar disorder where “substantial
evidence revealed [the claimant’s] condition stabilized and at the most, he had moderate
symptoms”). Accordingly, the ALJ’s decision did not violate the treating physician rule when he
rejected some of Dr. Pierre-Antoine’s findings.
B.

New Evidence
1.

Standard

“Disputes concerning the relevancy of diagnoses made after a denial of SSI benefits are
driven by the tension between the need for finality and the search for truth.” Tirado v. Bowen,
705 F. Supp. 179, 181-82 (S.D.N.Y. 1989). “[C]laimants ordinarily should have but one
opportunity to prove entitlement to benefits, otherwise disability administrative proceedings
would be an unending merry-go-round with no finality to administrative and judicial
determinations. It is a truism nonetheless, that nothing is permanent except change, and for that
reason room must be allowed in the process for the fact that a claimant’s medical condition may
not be fully diagnosed or comprehended at the time of her hearing.” Tirado v. Bowen, 842 F.2d
595, 596 (2d Cir. 1988). As a result, the Court “must attempt to strike a balance between these
extremes.” Tirado, 705 F. Supp. at 182.
Under 42 U.S.C. § 405(g), the Court may remand a case “upon a showing that there is
new evidence which is material and that there is good cause for the failure to incorporate the
evidence into the record in a prior proceedings.” See also 20 C.F.R. §§ 404.970, 416.1570(b)

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(emphasis supplied); Perez v. Chater, 77 F.3d 41, 44-46 (2d Cir. 1996); Tirado, 842 F.2d at 597;
Canales, 698 F. Supp. 2d at 341. Because new evidence submitted to the Appeals Council is part
of the administrative record for judicial review, however, a showing of good cause is not
necessary where the evidence was presented to the Appeals Council, but the Appeals Council
declined to consider it. See, e.g., Knight v. Astrue, 10 Civ. 5301 (BMC), 2011 WL 4073603, at
*12 (E.D.N.Y. Sept. 13, 2011).
Evidence is new if it did not exist before the ALJ decision and it is not merely cumulative
of evidence already in the record. Tirado, 842 F.2d at 597. Evidence is material where it “relates
to the period on or before the date of the [ALJ] hearing decision,” is probative, and there is “a
reasonable possibility” that it would have influenced the ALJ’s decision. Id. See also 20 C.F.R.
§§ 404.970, 416.1570(b). Documents generated after the ALJ rendered a decision are not
categorically barred so long as the documents are relevant to the time period, before the ALJ’s
decision, for which benefits were denied. Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004).
See 20 C.F.R. § 416.330 (a disability claim remains in effect through the decision of the ALJ).
This is because new evidence may “disclose the severity and continuity of impairments existing”
before the ALJ’s decision and “may identify additional impairments which could reasonably be
presumed to have been present and to have imposed limitations” previously. Lisa v. Sec’y of
Dep’t of Health and Human Servs., 940 F.2d 40, 44 (2d Cir. 1991). New and material evidence
will not warrant remand if it “does not add so much as to make the ALJ’s decision contrary to
the weight of the evidence.” Rutkowski v. Astrue, 368 F. App’x 226, 229 (2d Cir. 2010). See
also Perez, 77 F.3d at 45 (“When the Appeals Council denies review after considering new
evidence, we simply review the entire administrative record, which includes the new evidence,

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and determine, as in every case, whether there is substantial evidence to support the decision of
the Secretary.”).
The vast majority of cases remanded to consider new evidence involve physical, rather
than mental, disabilities. See, e.g., Patterson v. Colvin, 24 F. Supp. 3d 356, 373 (S.D.N.Y. 2014)
(knee injury); Rolon, 994 F. Supp. 2d at 509-10 (herniated disc); Lopez v. Astrue, 03 Civ. 0313
(CBA), 2011 WL 6000550, at *11 (E.D.N.Y. Nov. 28, 2011) (lumbar and cervical spine);
Melvin v. Barnhart, 02 Civ. 4527 (GBD)(JCF), 2004 WL 2591948, at *6-7 (S.D.N.Y. Nov. 8,
2004) (degenerative disc disease). Cf. Mulrain v. Comm’r of Soc. Sec’y, 431 F. App’x 38, 39-40
(2d Cir. 2011) (refusing to remand where the new evidence of the claimant’s foot pain did not
indicate that the condition was more serious than originally thought or that the condition had
worsened); Beach v. Comm’r of Soc. Sec’y, 11 Civ. 2089 (JMF), 2012 WL 3135621, at *15
(S.D.N.Y. Aug. 2, 2012) (declining to remand because, “[a]lthough the new evidence supports
[the claimant’s] reports of joint pain in her ankles and hip,” it “is more likely a reflection of [the
claimant’s] condition worsening after the cutoff date than an indication that she was disabled
before the cutoff date.”).
The results in cases involving new evidence related to mental developments are less
consistent. In part, this is due to the difficulty of distinguishing between new evidence which
“reflects the severity of the plaintiff’s impairment as it existed during the time period for which
benefits were denied” and that which “represents new impairments which would not have
affected the decision below, and which would be better considered in a new application for
benefits.” Hernandez v. Sullivan, 91 Civ. 1836 (LBS), 1992 WL 315637, at *3 (S.D.N.Y. Oct.
22, 1992). See also Bosmond v. Apfel, 97 Civ. 4109 (RPP), 1998 WL 851508, at *12 (S.D.N.Y.
Dec. 8, 1998) (inquiring whether a new “diagnosis relates to a previously unrecognized

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condition, or whether it reveals the depth of an illness recognized, but not fully appreciated at the
time of the hearing” (citations omitted)). Compare Crowley v. Colvin, 13 Civ. 1723
(AJN)(RLE), 2014 WL 4631888, at *4-5 (S.D.N.Y. Sept. 15, 2014) (remanding where newly
submitted psychological evaluations, conducted after the ALJ’s decision, affirmatively stated
that the “onset of” the claimant’s psychiatric impairments, which made him unable to work,
predated and were present during the relevant time period before the ALJ decision), with Brown
v. Comm’r of Soc. Sec’y, 709 F. Supp. 2d 248, 257-58 (S.D.N.Y. 2010) (declining to remand
where new evidence regarding the claimant’s pain, depression, and muscle spasms from a time
period many years after the period in issue “provides no reliable information as to the severity or
nature of his condition” before the ALJ’s decision).
2.

Application

Drysdale submitted to the Appeals Council additional medical records that pertain to and
are dated after June 8, 2012. These records are “new” because they “did not exist at the time of
the ALJ’s hearing.” Pollard, 377 F.3d at 193. Further, a showing of good cause is not required
because the new evidence was submitted to the Appeals Council and was a part of the record on
appeal to this Court. See Knight, 2011 WL 4073603, at *12. The more difficult question is
whether the evidence is (1) new, as in not merely cumulative, and (2) material, as in “relate[s] to
the time period for which benefits were denied,” and does not only “concern evidence of a lateracquired disability or of the subsequent deterioration of the previously non-disabling condition.”
Tirado I, 705 F. Supp. at 182 (citation omitted).
The new evidence includes (1) five months of social worker reports from Harlem East
Life Plan Chemical Dependency Program (“Harlem East”) from February 11, 2013 through July
13, 2013; (2) a one-time psychiatric assessment by Dr. Moussavian, dated July 1, 2013; and (3) a

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one-time Federation Employment & Guidance Service (“FEGS”) biopsychosocial assessment,
dated August 20, 2013. The earliest of these is eight months after the ALJ’s decision.
The Harlem East reports and Dr. Moussavian’s report do not paint a significantly
different picture of Drysdale than the evidence already considered by the ALJ. In the Harlem
East reports, Drysdale exhibited average intelligence, was described as cooperative, motivated,
and self-aware, and demonstrated positive communication skills. She also described feeling
depressed, suffering from mood swings, and self-reported that she did “not want to work” and
did “not want help to find employment and/or further education/training.” (AR 118-32.) She was
diagnosed with bipolar disorder, diagnosed a GAF of 60, and characterized as suffering from low
self-esteem. In addition to her mental health impairments, the reports also demonstrate
significant external stressors weighing on Drysdale: her recent homelessness, the absence of
vocational training, her lack of family or peer support, limited recreational/leisure skills, and
substance abuse. Despite these stressors, Drysdale reported attending Alcoholics Anonymous
and Narcotics Anonymous and expressed interest in obtaining her GED. Dr. Moussavian’s report
is similar, but noteworthy for Drysdale’s update that she stopped attending appointments at
UMMHC and stopped taking her medications, causing her to feel more depressed and anxious.
Accordingly, regardless of whether the Harlem East and Dr. Moussavian reports relate back to
the time period before the ALJ’s decision, they are cumulative of the medical evidence in the
record and would “not add so much as to make the ALJ’s decision contrary to the weight of the
evidence.” Rutkowski, 368 F. App’x at 229. See Tirado II, 842 F.2d at 597. They do not warrant
remand.
The one-time consultative FEGS evaluation, conducted a month after Dr. Moussavian’s
report, represents stronger evidence of the severity of Drysdale’s impairments – although it is

19

unclear whether Drysdale had resumed taking her prescribed medications and/or had
reacclimated to them by that point. Dr. Hun Han opined that Drysdale would need a low stress
environment, and that she has restrictions of activities of daily living that prevent adherence to a
regular work routine. Dr. Beatrice Spinelli recommended that Drysdale’s exertion level of her
workload or pacing be modified, that she be allowed a flexible/modified schedule that allows
taking leave as needed, that she be allowed to use stress reducing devices/equipment, and that
she receive additional time to be trained. Both doctors ultimately concluded that Drysdale has
substantial functional limitations to employment and a regular work routine due to medical
conditions that will last for at least 12 months and make her unable to work.
The FEGS evaluation, however, is a one-time consultative examination based on
Drysdale’s self-reporting, rather than a doctor’s longitudinal relationship with, and observations
of, Drysdale. It is possible that, as a malingerer, her self-reporting does not accurately reflect her
impairments. It is also possible that her condition worsened after the ALJ’s decision because she
was not compliant with her medications and continued to abuse cocaine and alcohol. The Court
finds that this report does not necessarily disclose the severity and continuity of impairments
existing before the ALJ’s decision, make the ALJ’s decision contrary to the weight of the
evidence, or contain a reasonable likelihood of influencing the ALJ’s decision. See Tirado II,
842 F.2d at 597; Lisa, 940 F.2d at 44; Rutkowski, 368 F. App’x at 229-30. As a result, it, too,
does not warrant remand.

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CONCLUSION
For these reasons, the plaintiff’s motion is DENIED, and the Commissioner’s crossmotion is GRANTED. The Clerk of Court is directed to terminate the motions at Docket Entry
No. 44 and 46 and close this case.

SO ORDERED.

DATED:

New York, New York
June 16, 2015

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