Santiago-Jimenez v. Commissioner of Social Security

Filing 24

MEMORANDUM DECISION AND ORDER Adopting 21 Report and Recommendations: Magistrate Judge Francis's Report and Recommendation is adopted. The Defendant'smotion for judgment on the pleadings is DENIED. The Plaintiff's cross-motion for judgment on the pleadings is GRANTED. The case is REMANDED to the Commissioner to consider new, material evidence. The Clerk of Court is directed to close the motions at ECF Nos. 13 and 18. SO ORDERED. Motions Terminated: 18 Motion for Judgment on the Pleadings filed by Yolanda Santiago-Jimenez, 13 Motion for Judgment on the Pleadings filed by Commissioner of Social Security. (Signed by Judge George B. Daniels on 10/13/2016) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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YOLANDA SANTIAGO-JIMENEZ,

Plaintiff,
-againstCOMMISSIONER OF SOCIAL SECURITY,

MEMORANDUM DECISION
AND ORDER
15 Civ. 3884 (GBD) (JCF)

Defendant.
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GEORGE B. DANIELS, United States District Judge:
Plaintiff Yolanda Santiago-Jimenez brought this action under section 205(g) of the Social
Security Act ("SSA"), 42 U.S.C. § 405(g), seeking review of a determination by the Commissioner
of Social Security that she is not entitled to Supplemental Security Income benefits. (Compl.,
(ECF No. 2).) The parties submitted cross-motions for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. (Def.'s Mot. for J. on the Pleadings, (ECF No. 13);
Pl. 's Cross-Mot. for J. on the Pleadings, (ECF No. 18).)
Before this Court is Magistrate Judge James C. Francis' s March 16, 2016 Report and
Recommendation ("Report," (ECF No. 21)), recommending that this Court deny the
Commissioner's motion, grant the Plaintiffs motion, and remand the case to the Commissioner to
consider new, material evidence. 1 (Report, at 1.) This Court adopts those recommendations.
I.

LEGALSTANDARD

This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
Report. 28 U.S.C. § 636(b)(l)(C). When no party files objections to a Report, the Court may

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The relevant procedural and factual background is set forth in greater detail in the Report, and is
incorporated herein.

adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v.
Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)); see also Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169
(S.D.N.Y. 2003) ("To accept the report and recommendation of a magistrate, to which no timely
objection has been made, a district court need only satisfy itself that there is no clear error on the
face of the record") (quoting Nelson, 618 F. Supp. at 1189).
Magistrate Judge Francis advised the parties that failure to file timely objections to the
Report would constitute a waiver of those objections on appeal. (Report, at 34-35.) No objection
to the Report has been filed.
This Court may only set aside a decision by the Commissioner if that decision is (i) based
upon legal error or (ii) not supported by substantial evidence. See 42 U.S.C. § 405(g); Hickson v.
Astrue, No. 09 Civ. 2049, 2011 WL 1099484, at *2 (E.D.N.Y. Mar. 22, 2011). Substantial
evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion," and must be "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

When the

Commissioner's determination is supported by substantial evidence, the decision must be upheld,
"even if there also is substantial evidence for the plaintiffs position." Morillo v. Apfel, 150 F.
Supp. 2d 540, 545 (S.D.N.Y. 2001).
II.

ALJ DETERMINATION OF DISABILITY

Under the Social Security Act, a claimant is entitled to disability benefits if she can
demonstrate that she is unable 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

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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)(l)(A).
To assess a claimant's eligibility, the Administrative Law Judge ("ALJ") undertakes a
sequential five-step process. 20 C.F.R. § 416.920(a)(4). Initially, the claimant must demonstrate
that:

(1) she is not currently engaging in substantial gainful activity; (2) she has a severe

impairment that "significantly limits [her] physical or mental ability to do basic work activities";
and (3) based solely on medical evidence, she has an impairment listed in Appendix 1 of the
regulations. At step four, ifthe impairment is not included in the regulations, the ALJ will consider
whether, despite the claimant's severe impairment, she has the residual functional capacity
("RFC") to perform her past work. Finally, at step five, if the claimant is unable to perform her
past work, the ALJ will determine whether there is work that the claimant could perform. See
generally Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citing Berry v. Schweiker, 675 F.2d

464, 467 (2d Cir. 1982)).
In assessing whether a claimant has a disability, the factors to be considered include: "(1)
the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective
evidence of pain or disability testified to by the claimant or other[s]; and (4) the claimant's
educational background, age, and work experience." Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.
1980). An ALJ must "grant controlling weight to the opinion of a claimant's treating physician if
the opinion is well supported by medical findings and is not inconsistent with other substantial
evidence." Rosado v. Barnhart, 290 F. Supp. 2d 431, 438 (S.D.N.Y. 2003) (citing 20 C.F.R. §
404.1527(d)(2)). If an ALJ does not give a treating physician's opinion controlling weight, he
must provide "good reasons" for declining to do so. See 20 C.F.R. § 404.1527(c)(2).

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As the Report found, the ALJ correctly analyzed Plaintiffs claim according to the fivestep evaluation process. First, the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since the date she filed her application. (Report, at 22.) Second, the ALJ found
that Plaintiff had severe impairments that significantly limited her ability to perform basic work
activities. (Id.) Third, the ALJ found that none of Plaintiffs impairments were listed in the
regulations or medically equaled the severity of one of those impairments. (Id., at 22-23.)
Fourth, the ALJ appropriately considered whether, despite Plaintiffs severe impairment,
she had the RFC to perform her past work. (Id., at 23-24.) Here, the ALJ determined that although
Plaintiff could not perform any of her past relevant work, she maintained the RFC to perform some
light work. (Id., at 24.) In making this determination, the ALJ found that some of Plaintiffs
statements about the intensity, persistence, and limiting effects of her symptoms were not credible
in light of other medical evidence and contradictory testimony by the Plaintiff. (Id.) The ALJ also
found that the opinion of Plaintiffs treating physician, Dr. Iqbal, was neither credible nor
supported by the record, but gave greater weight to the findings and opinions of one other physician
and "somewhat less weight" to those of a third physician. (Id., at 24-25.) Finally, the ALJ
concluded that Plaintiff can perform jobs that exist in significant numbers in the national economy,
and therefore she is not disabled. (Id., at 25.)
Magistrate Judge Francis properly found that substantial evidence supported the ALJ's
determination that Plaintiff is not disabled. At step three, the ALJ determined, based on his
examination of Plaintiffs medical records, that none of Plaintiffs impairments met or equaled the
severity of a listed impairment. (Id., at 26.) For example, while Plaintiffs medical records
confirmed spinal problems, an MRI and x-ray from February 2012 showed only mild degenerative
conditions, and her physicians recommended relatively conservative treatment.

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(Id., at 27.)

Moreover, x-rays relating to Plaintiffs hand, foot, and knee pain were all negative, and the record
suggests she has only mild asthma. (Id., at 28.) The Report also cites supporting evidence from
Dr. Schreiber, Dr. Iqbal, and Dr. Hochberg relating to Plaintiffs mental condition. (Id.) Finally,
Magistrate Judge Francis properly found that the ALJ considered the correct factors in determining
not to give Dr. Iqbal's opinion controlling weight, and the ALJ provided "good reasons" for his
determination. (Id., at 29-30.)

III.

ADDITIONAL MEDICAL EVIDENCE

A Social Security claimant may submit new evidence to the Appeals Council following an
adverse ALJ disability determination without any showing of good cause.

20 C.F.R. §

416.14 70(b ). Under SSA regulations, the Appeals Council "shall" consider new and material
evidence that relates to the period on or before the date of the ALJ hearing decision. 20 C.F.R. §
404.970(b). An appellant must show that the proffered evidence is (1) "'new' and not merely
cumulative of what is already in the record," and that it is (2) "material, that is, both relevant to
the claimant's condition during the time period for which benefits were denied and probative."

Lisa v. Secy ofHealth & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991) (internal citations omitted).
"The concept of materiality requires, in addition, a reasonable possibility that the new evidence
would have influenced the [Commissioner] to decide claimant's application differently." Pollard

v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir.
1988)). Where the Appeals Council fails to consider such evidence, "the proper course for the
reviewing court is to remand the case for reconsideration in light of the new evidence." Shrack v.

Astrue, 608 F. Supp. 2d 297, 302 (D. Conn. 2009).
Magistrate Judge Francis properly found that the Appeals Council should have considered
the February and April 2014 medical records that Plaintiff provided after the ALJ's decision.

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(Report, at 33-34.) 2 These new reports-which described a February 12, 2014 MRI of Plaintiff's
lumbar spine, and an April 23, 2014 x-ray of her knees-substantiated Plaintiff's claims regarding
the intensity, persistence, and limiting effects of her claimed disability, and supplied evidence that
the ALJ had found lacking in the record. (Report, at 33.) As such, Judge Francis correctly found
that these records "might reasonably influence" the ALJ's disability determination. (Id., at 33-34.)
See, e.g., Pollard, 377 F .3d at 193 (finding that new evidence was material where the records
directly supported many of plaintiff's earlier contentions); Williams v. Comm 'r of Soc. Sec., 236
F. App'x 641, 644 (2d Cir. 2007) (finding that new evidence was material because it countered the
ALJ' s finding of insufficient evidence to support plaintiff's allegations of incapacitating pain).
Moreover, the Appeals Council should not have rejected the two medical reports on the
ground that they were "new information about a later time" that did not refer explicitly to the
relevant time period. (Report, at 18.) Courts in this Circuit have consistently held that the
Commissioner should consider new, material evidence that sheds light on the claimant's condition
prior to the ALJ determination-even if the evidence post-dates that determination. See Pollard,
377 F.3d at 193-94 (holding that new evidence was relevant to the time period for which benefits
were denied even though the documents were generated after the ALJ decision); Lisa, 940 F.2d at
44 (finding that a diagnosis that emerged after the close of administrative proceedings was material
because it shed considerable new light on the seriousness of claimant's condition); Williams, 236

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The Commissioner asserts that the Appeals Council did not err in declining to consider evidence postdating the ALJ decision. First, the Commissioner argues that the February and April 2014 medical reports
do not clearly relate to the relevant period of disability (i.e., the period on or before the date of the ALJ
decision). (Comm'r Mem. of Law, (ECF No. 20), at 2-3 .) Second, the Commissioner argues that the reports
are not probative because the ALJ determination already assumed Plaintiff had severe impairments in her
back and knees, and her RFC accounted for those limitations by limiting Plaintiff to light work. (Id. at 34.)

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F. App'x at 644 (remanding case for consideration of medical report that post-dated the period for
which benefits had been claimed); Melvin v. Barnhart, 02 Civ. 4527, 2004 WL 2591948, at *6-7
(S.D.N.Y. Nov. 8, 2004) (finding that report that post-dated ALJ decision by two years was new
material evidence). In this case, the two new reports were issued within months of the ALJ
decision and indicated that Plaintiffs condition was more severe than the ALJ originally assessed.
Thus, Magistrate Judge Francis properly concluded that the new evidence was material and should
be considered by the Commissioner on remand.

IV.

CONCLUSION

Magistrate Judge Francis's Report and Recommendation is adopted. The Defendant's
motion for judgment on the pleadings is DENIED. The Plaintiffs cross-motion for judgment on
the pleadings is GRANTED. The case is REMANDED to the Commissioner to consider new,
material evidence.
The Clerk of Court is directed to close the motions at ECF Nos. 13 and 18.
Dated: New York, New York
October 13, 2016
SO ORDERED.

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