Bush v. Colvin

Filing 25

OPINION AND ORDER: Adopting 16 REPORT AND RECOMMENDATION. For the foregoing reasons, the Report is ADOPTED in its entirety as the opinion of the Court. Plaintiff's motion for judgment on the pleadings is DENIED. The Commissioner's motion for judgment on the pleadings is GRANTED. The Clerk is directed to close the motions open at Docket Nos. 16 and 21 and to close this case. (Signed by Judge Lorna G. Schofield on 2/10/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DAVID BUSH,
:
Plaintiff,
:
:
-against:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security,
:
:
Defendant. X
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2/10/2017

15 Civ. 2062 (LGS) (DF)
OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:
Plaintiff David Bush filed this action against the acting Commissioner (the
“Commissioner”) of the Social Security Administration (the “SSA”) on March 19, 2015, seeking
review of the final decision of an Administrative Law Judge (“ALJ”) denying him benefits under
the Social Security Act (the “Act”). Before the Court is a Report and Recommendation of
Magistrate Judge Debra Freeman (the “Report”), recommending that the Court grant Plaintiff’s
motion for judgment on the pleadings and deny the Commissioner’s cross-motion for judgment
on the pleadings. The Commissioner objected to the Report. For the following reasons, the
recommendation to grant Plaintiff’s motion is adopted, the case is remanded to the SSA and the
Commissioner’s motion is denied.
I.

BACKGROUND
The following facts are taken from the administrative record and the parties’ submissions.
Plaintiff claims disability based on a number of health issues, including stroke,

hypertension, heart failure, pervasive vascular disease, diminished dexterity, diminished
eyesight, diminished kidney function, and an aneurism. Plaintiff alleges that he has been

disabled since December 28, 2011, and seeks both disability insurance (“SSDI”) benefits and
Supplemental Security Income (“SSI”) benefits under the Act.
A. Plaintiff’s Initial Application for Benefits
Plaintiff applied for SSDI benefits on March 9, 2012, and applied for SSI benefits on
April 2, 2012. His claims were denied on August 2, 2012, and Plaintiff requested an
administrative hearing before an ALJ. A hearing was held on June 14, 2013, to determine
whether Plaintiff is disabled within the meaning of the Act. Plaintiff appeared at the hearing,
represented by an attorney.
At the hearing, Plaintiff amended his onset date from November 7, 2011, to December
28, 2011. Plaintiff testified that since December 2011, he had worked only a few days painting
fences. He testified that after his stroke, he was completely blind for a period, and now suffers
from bouts of double vision, has trouble focusing, and has much greater difficulty seeing in the
dark than in the light. He testified that he does not watch television or use a computer because of
his eyesight and difficulty focusing. He previously worked as an installer of truck accessories, a
cell phone salesman, an RV technician, a car alarm installer, and a generator technician. He
completed ninth or tenth grade and does not have a GED. He also testified that he suffers from
shortness of breath and chest pain upon exertion. Although he shops for food once a month for
approximately 20 to 30 minutes, he noted that he has difficulty walking for longer periods and
spends most of his time sitting. Plaintiff testified that he can usually lift a gallon of milk without
symptoms, but his doing so often depends on whether he has taken his medication.
Plaintiff was the only witness at the hearing. No vocational expert testified about what
jobs Plaintiff can or cannot perform in light of his limitations.

2

On September 20, 2013, the ALJ found that Plaintiff is not disabled. In making that
determination, the ALJ conducted a five-step sequential analysis used by the SSA in determining
disability. 20 C.F.R. §§ 404.1520; 416.920. At step one, the ALJ found that Plaintiff has not
engaged in substantial gainful activity since the alleged onset date of his disability. At step two,
the ALJ found that Plaintiff suffers from the following severe impairments: pulmonary valve
disorder; coronary artery disease, status post multiple stenting; “status-post questionable CVA;”
peripheral arterial disease; renovascular hypertensive disease with bilateral renal stent placement;
chronic kidney disease due to hypertension and atherosclerosis, status-post stage III acute renal
failure; migraine headaches, and obesity. The ALJ also determined that Plaintiff’s alleged
mental impairment and diplopia (double vision) resulted in minimal, if any, limitations on
Plaintiff’s ability to perform basic work-related physical and mental activities, and were
therefore non-severe.
At step three, the ALJ found that Plaintiff’s impairments do not meet or equal a listed
impairment, which would, without more, qualify him as disabled. The ALJ then examined
Plaintiff’s residual functional capacity and found that Plaintiff has residual functional capacity to
perform light work, except for work at unprotected heights. At step four, based on his residual
functional capacity, the ALJ found that Plaintiff is unable to perform his past relevant work as an
auto parts/car alarm installer/salesperson. At step five, based on his age, education, work
experience, and residual functional capacity, the ALJ determined that there are jobs that exist in
significant numbers in the national economy that the claimant can perform, and he is therefore
not disabled within the meaning of the Act. The ALJ denied Plaintiff’s claims.
In reaching his conclusions at step two that Plaintiff’s visual impairment is non-severe,
the ALJ discussed the notes of Mandes Kates, M.D., a treating ophthalmologist and Elena
3

Kaznatcheeva, M.D., a neurologist, and the opinion of Thien Huynh, M.D., who performed an
ophthalmologic consultative evaluation.
In reaching his conclusions at step four regarding Plaintiff’s residual functioning, the ALJ
relied partly on Plaintiff’s medical records and findings of doctors. The ALJ considered the
treating source opinion of Dr. Obligado, a nephrologist. Obligado opined that Plaintiff’s ability
to lift and carry was limited to lifting 20 pounds occasionally; his ability to stand and/or walk
was limited to up to two hours per day; his ability to sit was not limited; and his ability to push
and/or pull was limited. The questionnaire that Obligado filled out for the New York State
Office of Temporary and Disability Assistance was sparse -- some questions were left
unanswered and others had minimal answers. The ALJ accepted Obligado’s opinion only with
regard to Plaintiff’s ability to lift and carry and sit because his exams “fail to support the
standing and walking limitation.” Dr. Rehan Khan, a consulting physician, opined that
Plaintiff’s hand and finger dexterity were intact, but grip strength was 4/5 in the right upper
extremity. He also opined that Plaintiff had no gross physical limitations for sitting, standing or
walking, or use of the right upper extremity, and no limits for bending, kneeling, climbing, or
squatting, but that Plaintiff should avoid activities of moderate or greater exertion. Khan also
found a moderate limitation for fine visual acuity. Finding Khan’s opinion “vague” regarding
carrying and lifting, the ALJ determined that State Agency medical consultants P.S. Seitzman,
M.D., and Judith Bodnar’s, M.D., opinions “very persuasive” because they were more specific.
Seitzman and Bodnar -- who did not physically examine Plaintiff -- opined that the Plaintiff had
residual functional capacity to perform a full range of light work. Dr. Thien Huynh, a consulting
ophthalmologist, examined Plaintiff in July 2012. Huynh concluded that his clinical exam was
“essentially normal with no findings seen that would suggest poor vision in the right eye.”
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Huynh cautioned that “it is possible that he suffered macular infarction of the right eye from the
hypertensive episode,” and recommended a retinal consult for a fluorescein angiogram and a
strabismus.
The ALJ also cited six reasons for doubting the credibility of Plaintiff’s statements
concerning the intensity, persistence and limiting effects of his symptoms. Among these, the
ALJ notes that Plaintiff had not had any recent surgery or cardiac catheterization and received
treatment that is essentially “routine and/or conservative in nature,” such as medication and
lifestyle modification. The ALJ also noted that the record does not contain any opinions from
treating or examining physicians indicating that Plaintiff is currently disabled, and that Plaintiff
worked only sporadically prior to his alleged disability onset date.
B. Proceedings Before the Appeals Council
Plaintiff appealed the ALJ’s decisions to the SSA’s Appeals Council (“Appeals Council”)
on November 14, 2013. Plaintiff submitted additional medical records, which show that prior to
the date of the ALJ’s decision, but after the hearing, Plaintiff underwent a second angioplasty.
As of June 2014, after the ALJ’s decision, Plaintiff was scheduled to undergo at least a third
cardiac catheterization. On January 6, 2015, the Appeals Council issued a summary notice
denying Plaintiff’s request to review the ALJ’s decision.
C. Proceedings Before Judge Freeman
Plaintiff filed a civil action seeking review of the ALJ’s decision. The case was referred
to Judge Freeman for a report and recommendation. On December 8, 2015, Plaintiff moved for
judgment on the pleadings on three grounds. First, Plaintiff argued that substantial evidence
does not support the ALJ’s conclusion that Plaintiff can perform light work, except for work at
unprotected heights due to his headaches. Plaintiff asserts that he cannot stand or walk for 6
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hours out of an 8 hour day, as required to perform light work, and that the ALJ ignored evidence
of Plaintiff’s visual impairment. Second, Plaintiff argues that the ALJ did not properly consider
the treating physician rule by failing to give the medical opinion from Dr. Obligado due weight
and in determining that the opinions by medical consultants Seitzman and Bodnar were “very
persuasive.” Third, Plaintiff argues that he did not receive a full and fair hearing. Plaintiff
asserts that the ALJ based his decision primarily on agency consultants who did not examine
Plaintiff or review all of the evidence in the record, accorded little weight to the Plaintiff’s
medical records, and that the ALJ failed to enlist a vocational expert. The Commissioner
opposes Plaintiff’s motion, and cross-moves for judgment on the pleadings.
On December 13, 2016, after considering both motions and the record, Judge Freeman
issued the Report. The Report recommends that Plaintiff’s case be remanded to the SSA with
instructions for the ALJ to: (1) give proper weight to the opinion of Plaintiff’s treating source
physician, Dr. Obligado, and set out good reasons for any determination that the opinion is not
entitled to controlling weight; (2) develop the record by obtaining medical source statements
from Plaintiff’s other treating physicians detailing how Plaintiff’s impairments affect his ability
to perform work-related activity; (3) consider the evidence submitted to the Appeals Council
regarding Plaintiff’s additional visits to Dr. Obligado; and (4) obtain the testimony of a
vocational expert should a re-evaluation of the evidence lead to the conclusion that Plaintiff’s
impairments significantly limit the range of work that he could otherwise be expected to
perform.
The Report concludes that the ALJ improperly applied the treating physician rule when
assessing Dr. Obligado’s opinion. By evaluating the supportability of Obligado’s opinion and

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none of the remaining factors set forth in the regulations, the Report concludes the ALJ
committed error. See 20 C.F.R. §§404.1527(c)(3), 416.927(c)(3).
Second, the Report concludes that the ALJ failed in his affirmative duty to develop the
record by failing to seek clarification and additional information from treating physicians.
Despite Plaintiff’s treatment by cardiologist Dr. Portelli, general practitioner Dr. Carey,
ophthalmologist Dr. Kates, and others, Obligado’s opinion is the only treating physician’s
opinion in the record. The Report notes that it is difficult to review whether the ALJ’s decision
is supported by substantial evidence without these opinions in the record.
Third, the Report concludes that on remand, the ALJ should consider the additional
evidence submitted to the Appeals Council. Finally, the Report concludes that, should a reevaluation of the evidence in light of the other instructions to the ALJ lead to the conclusion that
Plaintiff’s non-exertional impairments significantly limit the range of work he would otherwise
be able to perform, then ALJ should obtain testimony from a vocational expert. See Selian, 708
F.3d at 421 (an “ALJ cannot rely on the Grids if a non-exertional impairment has any more than
a ‘negligible’ impact on a claimant's ability to perform the full range of work, and instead must
obtain the testimony of a vocational expert.”)
D. The Commissioner’s Objection
The Commissioner objects to the Report on three grounds. First, the Commissioner
argues that the ALJ fulfilled his duty to develop the record as the ALJ was not required to
request treating source opinions, and the ALJ properly developed the record with respect to
Plaintiff’s visual impairment. Second, the Commissioner argues that the ALJ properly weighted
Dr. Obligado’s treating source opinion. The Commissioner also contends that the ALJ’s
determination as to Plaintiff’s credibility was properly supported by substantial evidence. Third,
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the Commissioner objected to the Report’s purported conclusion that remand is necessary
because Plaintiff submitted new and material evidence to the Appeals Council.
II.

LEGAL STANDARD
A reviewing court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district court
“may adopt those portions of the report to which no ‘specific, written objection’ is made, as long
as the factual and legal bases supporting the findings and conclusions set forth in those section
are not clearly erroneous or contrary to law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp.
2d 205, 206 (S.D.N.Y. 2012) (quoting Fed. R. Civ. P. 72(b)); see also Thomas v. Arn, 474 U.S.
140, 149 (1985).
“If a party timely objects to any portion of a magistrate judge’s report and
recommendation, the district court must ‘make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.’” United
States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015) (quoting 28 U.S.C. § 636(b)(1)). Even
where exercising de novo review, a district court “need not . . . specifically articulate its reasons
for rejecting a party’s objections or for adopting a magistrate judge’s report and recommendation
in its entirety.” Morris v. Local 804, Int’l Bhd. Of Teamsters, 167 F. App’x 230, 232 (2d Cir.
2006) (summary order). “[W]hen a party makes only conclusory or general objections, or simply
reiterates the original arguments,” the district court reviews a report and recommendation only
for clear error. Davis v. Comm’r of Soc. Sec., No. 15 Civ. 6301, 2016 WL 3453452, at *1
(S.D.N.Y. June 16, 2016).
“A claimant is disabled and entitled to disability insurance benefits if she is unable to
engage in any substantial gainful activity by reason of any medically determinable physical or
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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.” McIntyre v. Colvin, 758
F.3d 146, 149–50 (2d Cir. 2014). “A district court may set aside the Commissioner’s
determination that a claimant is not disabled only if the factual findings are not supported by
‘substantial evidence’ or if the decision is based on legal error.” Burgess v. Astrue, 537 F.3d
117, 127 (2d Cir. 2008) (quoting 42 U.S.C. § 405(g)). “Substantial evidence is more than a mere
scintilla . . . . [i]t means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Brault v. Soc. Sec. Admin., Com’r, 683 F.3d 443, 447–48 (2d Cir.
2012). “Even if the Commissioner’s decision is supported by substantial evidence, legal error
alone can be enough to overturn the ALJ’s decision.” Ellington v. Asture, 641 F. Supp. 2d 322,
328 (S.D.N.Y. 2009); accord Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
III.

DISCUSSION
Based on a de novo review of the administrative record, the Report, Defendant’s

Objections and applicable legal authorities, the Report is adopted in its entirety. The portions of
the Report as to which no objections were made are adopted because those portions are not
clearly erroneous. Any of Defendant’s Objections not specifically addressed in this decision
have been considered de novo and rejected.
A. Treating Source Rule and Duty to Develop the Record
The Report correctly concluded that the ALJ improperly applied the treating physician
rule when assessing the testimony of Dr. Obligado. The treating source rule is set out in federal
regulations:
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and may bring a
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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. If we find that a treating
source’s opinion on the issue(s) of the nature and severity of your impairment(s)
is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight. When we do not give the treating
source’s opinion controlling weight, we apply [a set of factors] . . . in
determining the weight to give the opinion. We will always give good reasons in
our notice of determination or decision for the weight we give your treating
source’s opinion.
20 C.F.R. §§ 404.1527(c), 416.927(c). Accordingly, the treating physician rule generally
requires deference to the medical opinion of the claimant’s treating physician.
“In order to override the opinion of the treating physician, [the Second Circuit has] held
that the ALJ must explicitly consider, inter alia: (1) the frequen[c]y, length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the
opinion with the remaining medical evidence; and (4) whether the physician is a specialist.
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (citing Selian v. Astrue, 708 F.3d 409, 418 (2d
Cir. 2013). While, as the Commissioner has pointed out, “no . . . slavish recitation of each and
every factor [is required] where the ALJ’s reasoning and adherence to the regulation are clear,”
Atwater v. Astrue, 512 F. App’x 67, 70 (2d Cir. 2013) (summary order), the ALJ must, after
considering the above factors, “comprehensively set forth [his] reasons for the weight assigned to
a treating physician’s opinion.” Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129).
Here, as the Report found, the ALJ’s decision does not reflect complete consideration of
the four factors. Obligado concluded that Plaintiff could occasionally lift 20 pounds and stand or
walk up to two hours per day; that Plaintiff’s ability to sit was unrestricted; and that Plaintiff’s
ability to push or pull was limited, though he provided few details on the questionnaire he filled
out. The ALJ accepted Obligado’s opinion regarding Plaintiff’s ability to lift and carry and sit,
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but disregarded Obligado’s opinion regarding standing and walking stating “[h]is exams fail to
support the standing and walking limitation.” While the ALJ is not required to recite each factor,
the ALJ must still “explicitly consider” the factors set forth in SSA regulations, Rolon v. Comm’r
of Soc. Sec., 994 F. Supp. 2d 496, 507 (S.D.N.Y. 2014), and “comprehensively set forth [his]
reasons for the weight assigned to the treating physician’s opinion.” Burgess, 537 F.3d at 129.
Second, Judge Freeman correctly found that the ALJ’s failure to “seek clarification and
additional information from the physician, as needed, to fill any clear gaps before rejecting
[Obligado’s] opinion,” Rolon, 994 F. Supp. 2d at 504, was in error. Judge Freeman also found
that the ALJ committed error by failing to seek additional treating source opinions. The
Commissioner argues that the ALJ was not required to obtain additional treating source opinions
and that there was no obvious gap in the record that warrants remand. Having reviewed the
record de novo, the Commissioner’s arguments are unavailing.
The ALJ has an affirmative duty to develop the record. See Echevarria v. Sec’y of Health
& Human Servs., 685 F.2d 751, 755 (2d Cir. 1982); accord La Torre v. Colvin, No. 14 Civ.
3615, 2015 WL 321881, at *11 (S.D.N.Y. Jan. 26, 2015). The ALJ has a “duty to investigate
and develop the facts and develop the arguments both for and against the granting of benefits.”
Moran v. Astrue, 569 F.3d 108, 112–13 (2d Cir. 2009), accord Sims v. Apfel, 530 U.S. 103, 111
(2000); Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004). When the administrative record
contains gaps or the ALJ does not have a complete medical history, the duty to develop the
record includes seeking additional information to address any such gaps. Rosa v. Callahan, 168
F.3d 72, 79 (2d Cir. 1999). The Social Security regulations require an ALJ to “[make] every
reasonable effort to obtain evidence from your medical sources,” and note that consultative
examinations will not be requested until “we have made every reasonable effort to obtain
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evidence from your own medical sources.” 20 CF.R. §§ 404.1512(d) – (e), 404.1517,
416.912(d)-(e), 416.917.
Here, with respect to Plaintiff’s exertional limitations, the ALJ had only Dr. Obligado’s
brief opinion which the ALJ accepted only as to Plaintiff’s ability to lift, carry and sit; the
opinion of consultative examiner Dr. Khan, who appears to have examined Plaintiff only once;1
and undeveloped record reviews by Seitzman2 and Bodnar. Although Plaintiff was treated by
additional treating physicians whom he saw repeatedly, including Dr. Portelli at the Heart
Center, general practitioner Dr. Carey, and ophthalmologist Dr. Kates, among others, the ALJ
did not contact any of these treating physicians for further information. Instead, the ALJ rejected
Obligado’s opinion -- the only treating source opinion in the record -- regarding Plaintiff’s
standing and walking limitation; accepted Khan’s opinion that Plaintiff had no gross physical
limitations for sitting, standing or walking, or using the right upper extremity, but disregarded his
opinion regarding Plaintiff’s upper right extremity; and accepted Seitzman and Bodnar’s
opinions regarding lifting and carrying because Khan’s opinion was “vague” and theirs were
more specific, although it is unclear what evidence Seitzman and Bodnar relied upon in making
their determination.

1

Judge Freeman noted that Dr. Khan examined Plaintiff only once. The ALJ’s report states that
Dr. Khan examined Plaintiff in May and June of 2012. Although the record shows that Dr. Khan
examined Plaintiff on May 18, 2012, and completed an “addendum” to his notes on June 5, 2012,
it appears that the addendum may have been simply a revision to his prior notes.
2
For example, on June 25, 2012, Seitzman initially opines that Plaintiff “[c]an lift 10 lbs.
occasionally. Can walk or stand 2 hours/day. Can sit 6 hours/day. Cannot do a full range
sedentary activities.” Three days later, Seitzman concludes, without explanation, that “[i]f vision
is correctible enough, then I would change my RFC to Can lift 20 lbs. occasionally, and 10 lbs.
frequently.”
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Similarly, with regard to Plaintiff’s vision problems, the ALJ did not have and did not
seek a treating source opinion. Although Khan, a consulting physician, opined that Plaintiff had
mild to moderate limitation to activities requiring fine visual acuity, the ALJ gave it “very little
weight” in part because it was “in contrast” with consulting ophthalmologist, Dr. Huynh. Dr.
Huynh concluded that Plaintiff’s clinical exam was “essentially normal,” but Huynh’s opinion
expressed reservations regarding possible vision problems that the exam was not able to detect.
Huynh recommended a retinal consult and a strabismus, and concluded that Plaintiff may have
“suffered macular infarction of the right eye from the hypertensive episode.”
Although any of these decisions on their own may not have raised doubt about whether
substantial evidence supports the ALJ’s determination, the Report is correct that when the record
is viewed as a whole, a collection of problems emerge that when taken together “result[] in an
unreliable disability determination.”
Legal errors regarding the duty to develop the record warrant remand. See, e.g. Rosa v.
Callahan, 168 F.3d 72, 79–80 (2d Cir. 1999) (Sotomayor, C.J.) (remanding where ALJ failed to
fully develop record by failing to obtain or attempting to obtain records); La Torre v. Colvin,
2015 WL 321881, at *12 (remanding where ALJ failed to seek further information from treating
physicians or consultative examiners despite insufficient evidence concerning scope of
claimant’s work-related capabilities). Accordingly, the Report’s determination that the case be
remanded to the SSA with the instruction to give proper weight to the opinion of Plaintiff’s
treating sources and to further develop the record is adopted.
B. New Evidence Submitted to Appeals Council
Defendants also argue that the Report “concluded that remand is necessary because
Plaintiff submitted new and material evidence to the Appeals Council.” Defendants
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mischaracterize the Report. The Report correctly concluded, not that remand is necessary
because of the new evidence, but that upon remand, the new evidence should be considered by
the ALJ because it is now part of the administrative record.3 This directive is not inconsistent
with SSA regulations. See 20 C.F.R. § 404.983 (“Any issues relating to your claim may be
considered by the administrative law judge whether or not they were raised in the administrative
proceedings leading to the final decision in your case.”). Accordingly, the Report’s instruction
that the ALJ consider the evidence submitted to the Appeals Council is not incorrect and is also
adopted.
IV.

CONCLUSION
For the foregoing reasons, the Report is ADOPTED in its entirety as the opinion of the

Court. Plaintiff's motion for judgment on the pleadings is DENIED. The Commissioner's
motion for judgment on the pleadings is GRANTED. The Clerk is directed to close the motions
open at Docket Nos. 16 and 21 and to close this case.

Dated: February 10, 2017
New York, New York

3

The Second Circuit recently addressed the consideration of evidence that post-dates the ALJ’s
decision in Evans v Colvin, 649 Fed. App’x 35 (2d Cir. 2016) (summary order). The Court
remanded for consideration of evidence pertaining only to the relevant period -- before the ALJ
decision -- but found no error in the Appeals Council’s conclusion that medication reports postdating the decision were not material. Id. at 37 ( “20 C.F.R. § 404.976(b)(1) plainly states that
the ‘Appeals Council will consider . . . any new and material evidence submitted to it which
relates to the period on or before the date of the administrative law judge hearing decision.’”).
“While evidence from a later evaluation can be material to an earlier time period, such evidence
must be both (1) relevant to the claimant's condition during the relevant period and (2) probative,
and additionally must create a reasonable possibility that the new evidence would have
influenced the Commissioner to decide claimant's application differently.” Id. at 38 (internal
quotation marks and citation omitted). On remand, the ALJ should apply this test to evidence of
Plaintiff’s third cardiac catheterization, particularly in light of the ALJ’s prior finding that
Plaintiff had not had any recent surgery or cardiac catheterization.
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