Lavango v. Colvin
DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 9 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 15 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 5/17/2017. (AFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 16-CV-106-FPG
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Amy Lavango (“Lavango” or “Plaintiff”) brings this action pursuant to the Social
Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner of
Social Security (“the Commissioner”) that denied her applications for disability insurance
benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act.
ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 9, 15. For the reasons that follow, Plaintiff’s motion is GRANTED,
the Commissioner’s motion is DENIED, and this matter is REMANDED to the Commissioner
for further administrative proceedings.
On January 27 and January 31, 2012, Lavango protectively applied for DIB and SSI with
the Social Security Administration (“the SSA”). Tr.2 136-43. She alleged that she had been
disabled since January 1, 2010 due to posttraumatic stress disorder, anxiety, and depression. Tr.
196. On May 31, 2013, Lavango appeared and testified at a hearing before Administrative Law
Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
References to “Tr.” are to the administrative record in this matter.
Judge William M. Weir (“the ALJ”). Tr. 42-68. On September 26, 2014, the ALJ issued a
decision finding that Lavango was not disabled within the meaning of the Act. Tr. 18-37. On
December 11, 2015, the Appeals Council denied Lavango’s request for review.
Thereafter, Lavango commenced this action seeking review of the Commissioner’s final
decision. ECF No. 1.
District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether
the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (quotation marks omitted). It is not the Court’s function to “determine de novo
whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the Secretary’s
findings are conclusive if supported by substantial evidence).
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).
The ALJ’s Decision
The ALJ’s decision analyzed Lavango’s claim for benefits under the process described
above. At step one, the ALJ found that Lavango had not engaged in substantial gainful activity
since the alleged onset date. Tr. 21. At step two, the ALJ found that Lavango has the following
severe impairments: bipolar, anxiety, and substance abuse disorders. Tr. 21-22. At step three,
the ALJ found that these impairments met Listings sections 12.04, 12.06, and 12.09. Tr. 22-24.
The ALJ then considered the materiality of Lavango’s substance abuse and determined that if
Lavango stopped using drugs she would still have severe impairments, but that those
impairments, alone or in combination, would not meet or medically equal any impairment in the
Listings. Tr. 24-25.
Next, the ALJ determined that if Lavango stopped using drugs she would retain the RFC
to perform a full range of work at all exertional levels. Tr. 25-36. Specifically, the ALJ found
that Lavango would be able to follow and understand simple directions and instructions; perform
simple tasks independently; maintain normal workplace attention, concentration, and a regular
work schedule; learn new tasks; and relate adequately with others so as not to disrupt workplace
routines. Tr. 25-26.
At step four, the ALJ found that if Lavango stopped using drugs, this RFC would prevent
her from performing her past relevant work as a waitress. Tr. 36. At step five, the ALJ relied on
the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart A, App’x 2, and found that if
Lavango stopped using drugs she could adjust to other work that exists in significant numbers in
the national economy given her RFC, age, education, and work experience.
Specifically, the ALJ relied on Medical-Vocational Rule 204.00, which directed a finding of “not
disabled.” Tr. 37. Accordingly, the ALJ concluded that Lavango was not “disabled” under the
Lavango argues that remand is required because the Appeals Council erred when it
declined to review her case.3 ECF No. 9-1, at 18-22; ECF No. 14; ECF No. 16, at 1-5.
Specifically, Lavango asserts that the Appeals Council improperly rejected medical records from
Gregory Castiglia, M.D. (“Dr. Castiglia”) and treating physician Wendy L. Weinstein, M.D.
(“Dr. Weinstein”). The Commissioner argues that the Appeals Council did not err and that none
of the newly submitted evidence provides a basis for changing the ALJ’s decision. ECF 15-1, at
“[N]ew evidence submitted to the Appeals Council following the ALJ’s decision
becomes part of the administrative record for judicial review when the Appeals Council denies
review of the ALJ’s decision.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (quoting
Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996)). The regulations require that the evidence be
“new and material” and “relate to the period on or before the ALJ’s decision.” 20 C.F.R. §§
404.970(b), 416.1470(b).4 After such evidence is added to the record, the Appeals Council must
consider the entire record, including the new evidence, and review a case if the ALJ’s “action,
findings, or conclusion is contrary to the weight of the evidence currently of record.” Lesterhuis,
805 F.3d at 87 (citation omitted). “If the Appeals Council declines to review a case, the ALJ’s
decision, and not the Appeals Council’s, is the final agency decision.” Id. (citing Perez, 77 F.3d
at 44). Here, the parties agree that the evidence submitted from Drs. Castiglia and Weinstein is
Lavango advances other arguments that she believes warrant reversal of the Commissioner’s decision.
ECF No. 9-1, at 22-29; ECF No. 16, at 5-8. However, because the Court disposes of this matter based on the
Appeals Council’s error, those arguments need not be reached.
These requirements were in effect when Lavango’s case was decided on September 26, 2014. The text of
20 C.F.R. §§ 404.970(b) and 416.1470(b) was recently revised and went into effect on January 17, 2017.
new because it was not before the ALJ when he rendered his decision and some of it postdates
the ALJ’s decision.
Evidence from Dr. Castiglia
Lavango submitted treatment notes to the Appeals Council from Dr. Castiglia dated
January 19 and January 30, 2015. Tr. 508-20. When the Appeals Council denied Lavango’s
request for review, it stated that it “looked at” the medical records from Dr. Castiglia but that:
“The [ALJ] decided your case through September 26, 2014. This new information is about a
later time. Therefore, it does not affect the decision about whether you were disabled beginning
on or before September 26, 2014.” Tr. 2.
Dr. Castiglia’s treatment notes indicate, most significantly, that Lavango underwent brain
surgery in 1999 (Tr. 508, 514-15) and that a January 30, 2015 brain MRI was abnormal and
indicated head injury (Tr. 512). This evidence is “material” because it could have influenced the
Commissioner to decide the case differently. The ALJ found at step two of his decision that,
despite Lavango’s allegation that she suffered a traumatic brain injury due to physical abuse,
Lavango had “no medically determinable traumatic brain injury or history of brain surgery.” Tr.
21, 26. Specifically, the ALJ pointed out that the record lacked “objective evidence of this
alleged traumatic brain injury and brain surgery except for [Lavango]’s own reported history and
subjective complaints.” Tr. 21. He noted that there were no hospital or treatment records
showing traumatic brain injury treatment, no diagnostic images of Lavango’s head, and no
hospital records showing that she had brain surgery or post-operative treatment. Id. Similarly,
the ALJ noted in his RFC analysis that Lavango “testified that she had a traumatic brain injury,
but sufficiently masked the effects of this with drugs and alcohol. There is nothing in the
medical record to support this assertion.” Tr. 31.
A more difficult question is whether Dr. Castiglia’s treatment notes relate to the period
on or before the ALJ’s decision. The Second Circuit has held that “medical evidence generated
after an ALJ’s decision cannot be deemed irrelevant solely because of timing.” Carrera v.
Colvin, No. 1:13-cv-1414 (GLS/ESH), 2015 WL 1126014, at *8 (N.D.N.Y. Mar. 12, 2015)
(citing Newbury v. Astrue, 321 F. App’x 16, 18 n.2 (2d Cir. 2009) (summary order)). This is
because “[e]xaminations and testing conducted after the ALJ’s decision is rendered may still be
relevant if they clarify a pre-hearing disability and/or diagnoses.” Id. (citation omitted). Thus,
the Appeals Council’s categorical refusal to consider new and material evidence solely because it
was created after the ALJ’s decision can constitute reversible error. Id. (citing Pollard v. Halter,
377 F.3d 183, 193 (2d Cir. 2004) (“Although the new evidence consists of documents generated
after the ALJ rendered his decision, this does not necessarily mean that it had no bearing on the
Commissioner’s evaluation of [the claimant’s] claims. To the contrary, the evidence directly
supports many of her earlier contentions regarding [the] condition. It strongly suggests that,
during the relevant time period, [her] condition was far more serious than previously thought[.]”)
and Sergenton v. Barnhart, 470 F. Supp. 2d 194, 204 (E.D.N.Y. 2007) (remanding to consider
post-hearing diagnostic evidence suggesting that the claimant’s impairment was substantially
more severe than previously diagnosed)).
Here, Dr. Castiglia’s treatment notes seem to relate to the period at issue because they
were generated just four months after the ALJ’s decision and there is nothing in the record that
indicates that something happened between the ALJ’s decision and the brain MRI that would
account for its abnormal results. Instead, Dr. Castiglia’s treatment notes repeatedly indicate that
Lavango had brain surgery in 1999. Nonetheless, a reviewing court cannot assess whether the
new evidence relates to the period on or before the ALJ’s decision. Carrera, 2015 WL 1126014,
at *10. The Appeals Council’s cursory, formulaic rejection of the evidence simply because it
was generated after the ALJ’s decision, without any legal or factual reasoning, is insufficient.
See 20 C.F.R. §§ 404.970(c), 416.1470(c) (“If [the claimant] submit[s] additional evidence that
does not relate to the period on or before the date of the [ALJ’s] hearing . . . the Appeals Council
will send [the claimant] a notice that explains why it did not accept the additional evidence[.]”)
Accordingly, this matter must be remanded to the Commissioner for
reconsideration in light of the new evidence from Dr. Castiglia. See Bluman v. Colvin, No. 15CV-627-FPG, 2016 WL 5871346, at *4 (W.D.N.Y. Oct. 7, 2016) (remanding for reconsideration
in light of new evidence that the Appeals Council summarily rejected because it was created
after the ALJ’s decision).
Evidence from Dr. Weinstein
Lavango also submitted evidence to the Appeals Council from treating physician Dr.
This evidence contained treatment notes that predate the ALJ’s
decision and a brain MRI and medical source statement that postdate the ALJ’s decision. Id.
Although the Appeals Council’s decision to deny review indicated that it “looked at” Dr.
Castiglia’s treatment notes, it did not mention Dr. Weinstein’s records at all even though it
included that evidence in the administrative record. Tr. 2. Lavango argues that the ALJ’s
decision is not supported by substantial evidence in light of Dr. Weinstein’s treatment notes and
opinion, and the Court agrees.
A reviewing court must consider the substantiality of the ALJ’s decision in light of the
evidence that the ALJ considered plus the additional evidence the Appeals Council accepted.
See Perez v. Chater, 77 F.3d 41, 45-46 (2d Cir. 1996) (“When the Appeals Council denies
review after considering new evidence, [the Court] simply review[s] the entire administrative
record, which includes the new evidence, and determine, as in every case, whether there is
substantial evidence to support the decision of the Secretary.”). If the additional evidence is
consistent with the ALJ’s findings, then the decision should be affirmed. See id. at 47. If the
additional evidence undermines the ALJ’s decision, such that it is no longer supported by
substantial evidence, then the case should be reversed and remanded. See Brown v. Apfel, 174
F.3d 59, 65 (2d Cir. 1999) (stating that conflicting evidence may indicate that the claimant’s
limitations were not sufficiently documented or worsened over time).
Dr. Weinstein’s treatment notes that predate the ALJ’s decision repeatedly state that
Lavango had brain surgery in 1999 and that she exhibited symptoms of a traumatic brain injury.
Tr. 494, 496, 498, 500. Furthermore, a brain MRI taken on November 3, 2014, roughly five
weeks after the ALJ rendered his decision, was abnormal and indicated head injury. Tr. 505-06.
As explained above, the ALJ discounted Lavango’s allegations of brain surgery and traumatic
brain injury due to the lack of supporting evidence in the record. Tr. 21, 26, 31. Thus, this
evidence is “material” because it could have influenced the Commissioner to decide the case
differently. Moreover, the treatment notes that predate the ALJ’s decision clearly relate to the
period at issue. It is also likely that the November 2014 MRI relates to the period at issue,
because there is no evidence in the record that anything happened between the ALJ’s decision
and the MRI that would account for its abnormal results. However, this is for the Commissioner
to determine on remand, because a reviewing court cannot assess whether the new evidence
relates to the period on or before the ALJ’s decision. Carrera, 2015 WL 1126014, at *10.
On May 16, 2015, Dr. Weinstein provided a medical source statement. Tr. 503. In that
statement, Dr. Weinstein opined that Lavango was moderately limited in understanding,
remembering, and carrying out instructions; maintaining attention and concentration; making
simple decisions; interacting appropriately with others; maintaining socially appropriate behavior
without exhibiting behavior extremes; maintaining basic standards of personal hygiene and
grooming; and appearing able to function in a work setting at a consistent pace. Id. Dr.
Weinstein also opined that Lavango was “unable to work,” that her restrictions were permanent,
and that her impairments have lasted or are expected to last at least 12 months. Id. Significantly,
Dr. Weinstein did not recommend referral to substance abuse rehabilitation or indicate that
Lavango’s impairments were related to substance abuse, despite evidence that Dr. Weinstein
knew that Lavango abused drugs in the past. Tr. 497 (indicating that Dr. Weinstein reviewed
records stating that Lavango abused cocaine and alcohol), 498 (indicating that Dr. Weinstein
confronted Lavango about her past substance abuse and warned her that she would not be treated
if she was using drugs).
Dr. Weinstein’s opinion conflicts with the ALJ’s overall conclusion that Lavango would
not be disabled if she stopped using drugs, because Dr. Weinstein clearly opined that Lavango
was disabled due to mental impairments and not due to substance abuse. Tr. 502-03. Similarly,
Dr. Weinstein’s assessed mental limitations conflict with the ALJ’s RFC assessment that
Lavango can follow and understand simple directions and instructions; perform simple tasks
independently; maintain normal workplace attention, concentration, and a regular work schedule;
learn new tasks; and relate adequately with others so as not to disrupt workplace routines. Tr.
Thus, Dr. Weinstein’s opinion is “material” because it could have influenced the
Commissioner to decide the case differently.
It is also likely that Dr. Weinstein’s opinion relates to the period at issue because,
although it was rendered about eight months after the ALJ’s decision, there is evidence that Dr.
Weinstein treated Lavango several times during the relevant period.
Tr. 494-96, 498-500.
Moreover, Dr. Weinstein indicated that Lavango’s impairments have lasted, or can be expected
to last, at least 12 months. Tr. 503 (emphasis added). Depending on how the ALJ interprets all
of the evidence on remand, he may conclude that Dr. Weinstein’s opinion, although it postdates
the relevant period, indicates that Lavango was impaired during the relevant period.
It is also important to note that Dr. Weinstein is a treating physician and therefore the
SSA’s regulations direct the ALJ to give her opinion “controlling weight” as long as it is “wellsupported by medically acceptable . . . techniques and is not inconsistent with the other
substantial evidence in [the record].”
See Lesterhuis, 805 F.3d at 88 (citing 20 C.F.R. §
404.1527(c)(2)); 20 C.F.R. § 416.927(c)(2). On remand, the ALJ might conclude that Dr.
Weinstein’s opinion is not entitled to any weight, much less controlling weight, but the agency
should make that determination in the first instance and the Court should refrain from
“affirm[ing] an administrative action on grounds different from those considered by the agency.”
Id. (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). Although the Commissioner
correctly argues that Dr. Weinstein’s opinion as to the ultimate issue of disability is “reserved to
the Commissioner,” that does not mean that the ALJ is entitled to ignore this opinion on remand.
Instead, if the ALJ decides to reject Dr. Weinstein’s findings, he must explain why. See Snell v.
Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (“Reserving the ultimate issue of disability to the
Commissioner relieves the [SSA] of having to credit a doctor’s finding of disability, but it does
not exempt [ALJs] from their obligation . . . to explain why a treating physician’s opinions are
not being credited.”) (emphasis added).
For the reasons stated, Lavango’s claim should be reevaluated considering all the
evidence relevant to determining her disability. Accordingly, in light of the medical record
before the ALJ and the records the Appeal Council accepted, the Court finds that the ALJ’s
decision was not supported by substantial evidence and that remand is required.
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 9) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 15) is DENIED, and this
matter is REMANDED to the Commissioner for further administrative proceedings consistent
with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d
117, 124 (2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is directed to enter
judgment and close this case.
IT IS SO ORDERED.
Dated: May 17, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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