Nowak v. Colvin

Filing 23

DECISION AND ORDER denying Plaintiffs Motion for Reconsideration. The Court adheres to its initial Decision and Order. The Court also finds no basis to remand pursuant to 42 U.S.C. § 405(g). Signed by Hon. Michael A. Telesca on 4/27/18. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DARRYLL L. NOWAK,
No. 1:15-cv-00424-MAT
DECISION AND ORDER

Plaintiff,
-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I. Introduction

Darryll L. Nowak (“Plaintiff”), through counsel, instituted
this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner of Social Security (“the Commissioner”)1 denying his
application

for

Disability

Supplemental

Security

Income

Insurance
(“SSI”).

Benefits
Both

(“DIB”)

parties

moved

and
for

judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The
Court granted the Commissioner’s motion and affirmed her decision
in a Decision and Order dated November 29, 2017. Plaintiff now has
filed a motion seeking (1) reconsideration of the Court’s decision
based on new evidence, and (2) an order remanding the case to the
Commissioner

for

consideration

of

new

evidence

pursuant

to

42 U.S.C. § 405(g) (“§ 405(g)”). For the reasons discussed herein,

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill should be substituted, therefore, for Acting
Commissioner Carolyn W. Colvin as Defendant in this suit. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g).

the Court finds that reconsideration should be denied, and that
remand pursuant to § 405(g) is unwarranted.
II. Factual Background and Procedural History
Plaintiff filed applications for DIB and SSI on May 3, 2012,
alleging disability commencing May 1, 2012, due to back impairments
and mental impairments. Following a hearing, administrative law
judge

David

S.

Lewandowski

(“ALJ

Lewandowski”),

rendered

an

unfavorable decision on December 26, 2013. (T.7-25).2 After the
Appeals Council denied Plaintiff’s request for review, Plaintiff
timely commenced this action on May 11, 2015. In a Decision and
Order filed November 29, 2017 (Dkt #15), the undersigned affirmed
the Commissioner’s decision, finding that substantial evidence
supported ALJ Lewandowski’s step-two determination that Plaintiff’s
mental impairments (major depressive disorder, PTSD, and history of
polysubstance

abuse)

were

not

“severe”

impairments;

that

ALJ

Lewandowski did not err in weighing the treating physician’s and
consultative physician’s opinions; that Plaintiff’s occasional use
of a cane did not significantly erode the occupational base for
sedentary work; and any error by the ALJ in not making a specific
factual finding pursuant to SSR 96-9p, 1996 WL 374185 (S.S.A. July
2, 1996), was harmless.
On the same day he filed his first appeal in this Court,
Plaintiff filed a new Title II application, alleging disability

2

Citations to “T.” in
administrative transcript.

parentheses

-2-

refer

to

pages

in

the

certified

beginning

December

27,

2013

(the

day

after

the

first

ALJ’s

decision). The claim was denied on August 18, 2015, and a hearing
was held on August 22, 2017, in Buffalo, New York, before ALJ Paul
Georger. At the hearing, Plaintiff requested closed periods of
disability (1) from December 27, 2013, to November 29, 2015; and
(2) from March 12, 2017, through the date of the second ALJ’s
decision. ALJ Georger issued a partially favorable decision on
November 24, 2017 (Dkt #17-3), five days prior to this Court’s
affirmance of ALJ Lewandowski’s decision. ALJ Georger found that as
a

result

of

the

limitations

from

his

physical

and

mental

impairments, Plaintiff had a residual functional capacity (“RFC”)
for sedentary work. ALJ Georger further determined that because
Plaintiff was 50 years-old and in the “closely approaching advanced
age” category as of August 10, 2012, unable to perform his past
relevant

work,

Medical-Vocational

and

without

Guideline

any

201.143

transferable
directed

a

skills,

finding

of

disabled. ALJ Georger concluded in relevant part, as follows:
Based on the application for a period of disability and
disability insurance benefits filed on May 11, 2015, the
claimant has been disabled under sections 2l6(i) and
223(d) of the Social Security Act from December 27, 2013
through November 29, 2015, and again from March 12, 2017
through the date of this decision. Medical improvement is
expected with appropriate treatment. Consequently, a
continuing disability review is recommended in 18 months,
or no later than April 30, 2019.
Based on ALJ Georger’s decision, Plaintiff returned to this
Court and filed a Motion for Reconsideration under Rule 59(e) and
to Consider New Evidence under 42 U.S.C. § 405(g) (Dkt #17) on

-3-

December 28, 2017. The Commissioner filed a Response in Opposition
(Dkt #18), and Plaintiff filed a Reply (Dkt #19). Plaintiff seeks
(1) reconsideration of the Court’s decision based on the subsequent
issuance of a favorable disability decision dated November 24,
2017, for a closed period of disability; and (2) an order remanding
the case to the Commissioner for consideration of new evidence
pursuant to 42 U.S.C. § 405(g), namely, the November 24, 2017
decision.
The Court determined that further information was required in
order to decide the Motion for Reconsideration and, on March 17,
2018 (Dkt #21), directed Plaintiff to supply the Court with a list
of the hearing exhibits relative to the November 24, 2017 decision,
indicating the dates of the records considered by the second ALJ.
On March 19, 2018, Plaintiff submitted the requested information
(Dkt #22-1). Defendant did not request an opportunity to respond to
Plaintiff’s submission.
III. Discussion
A.

Reconsideration under Fed. R. Civ. P. 59(e)

“There are four basic grounds upon which a Rule 59(e) motion
may be granted. First, the movant may demonstrate that the motion
is necessary to correct manifest errors of law or fact upon which
the judgment is based. . . . Second, the motion may be granted so
that the moving party may present newly discovered or previously
unavailable

evidence.

Third,

the

motion

will

be

granted

if

necessary to prevent manifest injustice. . . . Fourth, a Rule 59(e)
-4-

motion may be justified by an intervening change in controlling
law.”

11

Fed.

Prac.

&

Proc.

Civ.,

Grounds

for

Amendment

or

Alteration of Judgment, § 2810.1 (3d ed.) (footnotes omitted).
Plaintiff does not argue that reconsideration is warranted
based on an intervening change of controlling law. Rather, he
asserts

that

in

light

of

ALJ

Georger’s

subsequent

favorable

decision, reconsideration of this Court’s decision is necessary to
prevent manifest injustice. (See Plaintiff’s Memorandum of Law (Dkt
#17-2) at 9-10 (citing Mikol v. Barnhart, 554 F. Supp.2d 498
(S.D.N.Y. 2008)).
In

Mikol,

the

claimant

received

a

subsequent,

favorable

disability decision with a benefits period commencing the day after
the earlier, unfavorable decision. The district court found that
“[u]nder the circumstances of this case, the failure to consider
the impact of the subsequent decision finding [the claimant]
disabled one day after the date on which the earlier decision found
him no longer disabled could effect a manifest injustice.” Mikol,
554

F.

Supp.2d

at

503.

The

district

court

pointed

to

a

“possibility” that “the subsequent favorable decision might have an
effect on the earlier unfavorable decision upon remand . . . .”
Id. As discussed further below, the Court finds that, in contrast
to Mikol, remand is not warranted on the basis of Plaintiff’s “new
and material” evidence argument. Therefore, reconsideration is not
necessary to prevent a manifest injustice.

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B.

Propriety of Remand Pursuant to 42 U.S.C. § 405(g)

Title 42 U.S.C., Section 405(g) allows a district court to
remand a case to have the Social Security Administration (“SSA”)
consider new evidence. Section 405(g) states in relevant part that
the district court “may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon a
showing [1] that there is new evidence which is material and [2]
that there is good cause for the failure to incorporate such
evidence

into

the

record

in

a

prior

proceeding.”

42

U.S.C.

§ 405(g).
The Second Circuit has articulated a three-pronged standard
for determining whether a § 405(g) remand to consider new evidence
is appropriate. E.g., Tirado v. Bowen, 842 F. 2d 595, 597 (2d Cir.
1988). First, the evidence must be new and not merely cumulative of
prior evidence in the record; second, the evidence must be material
to the relevant time period and might have influenced the SSA to
decide the claim differently; and third, there must be good cause
for the claimant’s failure to present the evidence earlier. Id.
Plaintiff contends that the subsequent, favorable determination
by ALJ Georger finding him to be disabled one day after the
previous, unfavorable decision is new and material evidence under
§ 405(g). The Commissioner counters that the subsequent decision by
ALJ Georger is neither evidence nor is it relevant to the scope of
this Court’s review of ALJ Lewandowski’s December 26, 2013 decision
(which pertains to the relevant period, for purposes of this matter,
-6-

from May 1, 2012, through December 26, 2013). (See Defendant’s
Memorandum of Law (“Def’s Mem.”) (citing Caron v. Colvin, 600 F.
App’x 43, 44 (2d Cir. 2015) (unpublished opn.) (holding that a
subsequent agency finding is not evidence, but a conclusion based
on

evidence,

and

reiterating

that

“the

fact

that

two

[decision-makers] may permissibly reach different conclusions, even
on the same record—which is not the case here—is not probative of
anything”) (citing Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 127
(2d Cir. 2012); further citations omitted)). The Commissioner cites
Allen v. Comm’r of Soc. Sec., 561 F.3d 646 (6th Cir. 2009), for the
proposition that “[a] subsequent favorable decision may be supported
by evidence that is new and material under § 405(g), but the
decision is not itself new and material evidence.” Id. at 653
(emphasis in original). The Commissioner argues that only the
December 26, 2013 decision is the final decision of the Commissioner
subject to judicial review in this case. Plaintiff responds that the
Second Circuit’s unpublished decision in Caron is non-precedential.
Plaintiff cites Mikol, and cases from this District relying on it,
for the proposition that “[a] subsequent favorable decision by the
Commissioner constitutes new and material evidence when it ‘sheds
light on the seriousness of [claimant’s] condition at the time of
the first ALJ’s decision and is relevant to that time frame.’”
Kaylor v. Berryhill, No. 6:16-CV-00281(MAT), 2017 WL 4250052, at *2
(W.D.N.Y. Sept. 26, 2017) (quoting Mikol, 554 F. Supp.2d at 504).
“In other words, ‘if the subsequent [determination] references the

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initial time period formally [sic] adjudicated, the information is
considered new and material.’” Kaylor, 2017 WL 4250052, at *2
(quoting Clemons v. Astrue, No. 12-CV-269A, 2013 WL 4542730, at *6
(W.D.N.Y. Aug. 27, 2013); other citation omitted); see also Lisa v.
Sec’y of Dep’t of Health & Human Servs., 940 F.2d 40, 44 (2d Cir.
1991) (“[W]hen . . . a diagnosis emerges after the close of
administrative proceedings that sheds considerable new light on the
seriousness of [a claimant’s] condition, evidence of that diagnosis
is material and justifies remand.”).
Apart from the November 24, 2017 decision by ALJ Georger, the
only document Plaintiff originally submitted in connection with his
Motion for Reconsideration was the August 18, 2015 State agency
denial determination and transmittal (Dkt #17-3, p. 2), which
Plaintiff concedes has no probative value. Because it was unclear
from ALJ Georger’s November 24, 2017 decision whether he considered
any medical evidence from before December 27, 2013, the Court
requested that Plaintiff submit the List of Hearing Exhibits (Dkt
#17-3) in connection with the disability claim adjudicated by ALJ
Georger. This list indicates that ALJ Georger considered only one
set of records from prior to December 27, 2013, namely, Plaintiff’s
Office Treatment Records from Lakeshore Behavioral Health from
March 11, 2013, through April 13, 2015 (Exhibit 1F). The remainder
of the hearing exhibits consist of records relative to Plaintiff’s
physical impairments; all of these records post-date December 27,
2013.

-8-

Now that the Court has before it a list of the records on which
the second decision relied, the Court proceeds to consider whether
ALJ Georger’s determination references the initial time period
previously adjudicated in ALJ Lewandowski’s decision, and whether
it sheds considerable new light on the seriousness of Plaintiff’s
condition at the time of the previous decision.
While the Court agrees that ALJ Georger’s decision is “new,”
the Court finds that it is not “material,” because the records from
the prior period considered by ALJ Georger only pertained to
Plaintiff’s mental impairments. ALJ Georger’s assessment of the
severity of Plaintiff’s mental impairments and the limitations
flowing from them did not make the difference between his finding
of “disabled” versus ALJ Lewandowskis’s finding of “not disabled.”
At first glance, it might appear otherwise: ALJ Lewandowski found
that Plaintiff’s mental impairments were not “severe,” while ALJ
Georger did find that Plaintiff’s mental impairments were “severe”
at step two, and limited him to occasionally interacting with
supervisors, coworkers, and the public; occasionally dealing with
charges

in

the

work

setting;

and

making

simple

work

related

decisions. In reaching this finding, ALJ Georger assigned great
weight

to

the

July

2015

opinion

of

consultative

psychologist

Dr. Kevin Duffy, who found Plaintiff “mildly limited in maintaining
attention and concentration, and relating adequately with others.”
ALJ Georger noted that this opinion related to the first period at
issue

(the

period

adjudicated

by

-9-

ALJ

Lewandowski).

However,

Dr. Duffy’s finding of mild limitations is not inconsistent with the
earlier opinion of consultative psychologist Dr. Renee Baskin, which
was considered by the first ALJ, that Plaintiff had “minimal to no
limitations being able to follow and understand simple directions
and instructions, perform simple tasks independently, maintain
attention and concentration, maintain a regular schedule, learn new
tasks,

perform

complex

tasks

independently,

make

appropriate

decisions, relate adequately with others and appropriately deal with
stress.” ALJ Georger’s decision and the mental health records he
reviewed

simply

do

not

shed

considerable

new

light

on

the

seriousness of Plaintiff’s mental condition at the time of the
previous decision.
In addition, after reading both decisions together, it is clear
to the Court that limitations due to Plaintiff’s mental impairments
were not the deciding factor in ALJ Georger’s finding of disability.
Rather, ALJ Georger’s disability finding was based on a combination
of factors unrelated to Plaintiff’s mental impairments, namely,
(1) Plaintiff’s restriction to a range of sedentary work; (2) the
fact he was closely approaching advanced age; and (3) his lack of
transferable job skills. ALJ Georger stated that even if Plaintiff
had the RFC for the full range of sedentary work, a finding of
“disabled” nevertheless would be directed by Medical-Vocational
Rule 201.14. (See Dkt #17-3, p. 15 of 27). ALJ Georger’s finding
that Plaintiff’s physical impairments limited him to only sedentary
work was based on records that all post-dated the initial disability

-10-

period, and reflect a worsening of Plaintiff’s physical condition
during the second disability period.3 Hence, they do not “shed
considerable new light” on Plaintiff’s physical condition during the
initially adjudicated period. Unlike in Mikol, the subsequent
decision by ALJ Georger does not “clearly consider[],” Mikol, 554
F. Supp.2d at 504, Plaintiff’s history prior to second disability
period.
IV.

Conclusion
For

the

foregoing

reasons,

Plaintiff’s

Motion

for

Reconsideration is denied. The Court adheres to its initial Decision
and Order. The Court also finds no basis to remand pursuant to
42 U.S.C. § 405(g).
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 27, 2018
Rochester, New York.

3

These notes include a lumbar MRI report dated in May 2017, treatment
notes indicating that Plaintiff’s treating orthopedist recommended surgery after
conservative treatment failed, and that doctor’s prospective opinion dated in
March 2017. (See Dkt #17-3, pp. 10-14 of 27).

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