Kaylor v. Colvin

Filing 17

DECISION AND ORDER granting 10 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; and denying 14 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 9/26/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RICHARD G. KAYLOR, JR.
Plaintiff,
-vs-

No. 6:16-CV-00281 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented by counsel, plaintiff Richard G. Kaylor, Jr.

(“plaintiff”) brings this action pursuant to Titles II and XVI of
the Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security1
(the “Commissioner” or “defendant”) denying his applications for
disability insurance benefits (“DIB”) and supplemental security
income

(“SSI”).

The

Court

has

jurisdiction

over

this

matter

pursuant to 42 U.S.C. § 405(g). Presently before the Court are the
parties’ cross-motions for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
discussed below, plaintiff’s motion is granted to the extent that
this

case

1

is

remanded

to

the

Commissioner

for

further

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.
II.

Procedural History
Plaintiff protectively filed applications for DIB and SSI on

February

7,

Administrative

2013,

both

of

Transcript

which

(“T.”)

were

155-56,

initially
177-84,

denied.

228-43.

At

plaintiff’s request, a hearing was held before administrative law
judge (“ALJ”) Robert T. Harvey on October 1, 2014.
86.

T. 120-54, 185-

On December 29, 2014, ALJ Harvey issued a decision in which he

found that plaintiff was not disabled as defined in the Act.
T.

101-19.

On

August

9,

2016,

the

Appeals

Council

denied

plaintiff’s request for review, rendering the ALJ’s determination
the

Commissioner’s

final

decision.

T.

15-17.

This

action

followed.
III. The ALJ’s Decision
Initially, the ALJ determined that plaintiff had met the
insured status requirements of the Act through September 30, 2017.
T. 106.

At step one of the five-step sequential evaluation, see

20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff
had not engaged in substantial gainful activity since October 10,
2012, the alleged onset date.

Id.

At step two, the ALJ found that

plaintiff suffered from the severe impairments of status post ORIF
of the left calcaneus, status post hardware removal of plates and
screws of the left calcaneus, degenerative disease of the lumbar
2

spine, and burns of the hands and right leg.
the

ALJ

found

that

plaintiff

did

not

Id.

have

an

At step three,
impairment

or

combination of impairments that met or medically equaled the
severity of any listed impairment.

T. 107.

Before proceeding to step four, the ALJ determined that
plaintiff retained the RFC to perform light work as defined in
20

C.F.R.

§§

404.1567(b)

and

416.967(b),

with

the

following

additional limitations: cannot work in areas with unprotected
heights or around heavy, moving, or dangerous machinery; occasional
limitations in bending, climbing, stooping, squatting, kneeling,
balancing, and crawling; never able to climb ropes, ladders, or
scaffolds; occasional limitations in the ability to finger and feel
with hands and in pushing or pulling with the upper extremities;
frequent limitations for use of left foot controls; unable to work
in areas with exposure to dampness.

T. 108.

At step four, the ALJ

found that plaintiff was unable to perform any past relevant work.
T.

113.

At

step

five,

the

ALJ

concluded

that,

considering

plaintiff’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that
plaintiff could perform. Id. Accordingly, the ALJ found plaintiff
not disabled.
IV.

T. 114.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
3

findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000) (internal quotation
omitted).
Here, plaintiff argues that the ALJ’s decision was erroneous
because (1) the ALJ failed to consider medical listing 1.03 at step
three of his analysis, (2) the ALJ failed to give good reasons for
discounting the opinion of treating physician Dr. Thomas McTernan,
(3) the ALJ failed to make a proper credibility assessment, and
(4) the ALJ failed to consider reflex sympathy dystrophy syndrome
(“RSDS”) a severe impairment.
and

material

evidence

Plaintiff further argues that new

warrants

remand

pursuant

to

42

U.S.C.

§ 405(g).
“Judicial economy warrants addressing the new evidence issue
first because if a remand is necessary then the other issues will
not

need

to

be

considered

at

this

time.

On

remand,

the

Commissioner may resolve the case in such a way that consideration
of the other issues is not necessary.”

Clemons v. Astrue, 2013 WL

4542730, *5 (W.D.N.Y. Aug. 27, 2013).

Here, the Court determines

that remand is necessary to consider the new evidence submitted by

4

plaintiff.

Accordingly, the Court does not reach the other issues

raised by plaintiff.
A.

New and Material Evidence Warrants Remand

Pursuant

to

the

Act,

the

Court

“may

at

any

time

order

additional evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new evidence which
is material and 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).

“In order to justify remand under this

provision, the plaintiff must show (1) that the proffered evidence
is ‘new’ and not merely cumulative of what is already in the
record, (2) that the evidence is material, i.e., both relevant to
the claimant’s condition during the time period for which benefits
were denied and probative, and (3) good cause for failing to
present

the

evidence

earlier.”

Geracitano

v.

Callahan,

979

F. Supp. 952, 958 (W.D.N.Y. 1997).
Plaintiff has submitted, as purportedly new and material
evidence, a copy of a favorable determination on his subsequent
Title II claim, which was filed on April 8, 2016 and approved on
July 8, 2016.
subsequent

See Docket No. 10-2. In determining plaintiff’s

Title

II

claim,

the

Commissioner

found

plaintiff

disabled as of December 30, 2014, which is one day after ALJ Harvey
issued his unfavorable decision in the instant matter.

5

See id.

A

subsequent

favorable

decision

by

the

Commissioner

constitutes new and material evidence when it “sheds light on the
seriousness of [plaintiff’s] condition at the time of the first
ALJ’s decision and is relevant to that time frame.”

Mikol v.

Barnhart, 554 F. Supp. 2d 498, 504 (S.D.N.Y. 2008).

In other

words, “if the subsequent [determination] references the initial
time period formally adjudicated, the information is considered new
and material.” Clemons v. Astrue, 2013 WL 4542730, at *6 (W.D.N.Y.
Aug. 27, 2013); see also Reyes v. Apfel, 2000 WL 709087, at *9
(S.D.N.Y. June 2, 2000) (remanding where a subsequent favorable
determination “casts considerable doubt on the conclusion of the
first ALJ”).
In this case, the Commissioner’s determination that plaintiff
was disabled as of December 30, 2014 (one day after ALJ Harvey
determined that plaintiff was not disabled) rested in part on
Dr. McTernan’s report that plaintiff’s use of his hands was limited
by his arthritis and by scarring from burns, as well as because of
a curved deformity of his left fifth finger.
at 11.

See Docket No. 10-2

However, and as plaintiff points out, there is no evidence

whatsoever of a significant change in plaintiff’s ability to use
his hands between December 29, 2014 and December 30, 2014. To the
contrary, Dr. McTernan has consistently reported, from as early as
2012,that

plaintiff

has

“severe

joint

destruction

from

the

arthritis in his hands, as well as scarring from the burns.”
T. 462.

In addition, at the hearing before ALJ Harvey, plaintiff

showed him the deformity of his left finger.
6

See T. 142.

It is

therefore

clear

that

the

Commissioner’s

determination

of

plaintiff’s subsequent Title II claim rested in part on medical
conditions that were present during the time period relevant to the
instant matter.

As the Mikol court explained, “[i]t is difficult

to believe that on [December 29, 2014] plaintiff was not disabled
even

though

he

had

a

[medical

history]

which

supported

a

determination that on [December 30, 2014] plaintiff was suddenly
disabled.”

554 F. Supp. 2d at 504.

Accordingly, “[i]t is

reasonable to assume that the second decision will impact the
decision of the first ALJ because it suggests the impairment was
more severe than the first ALJ determined.” Id.; see also Clemons,
2013 WL 4542730 at *6 (subsequent favorable determination was new
and

material

“reference[d]

because

it

was

time-frames

not
and

before

the

initial

information

ALJ

and

[previously]

adjudicated,” and there was “good cause for failing to present this
evidence in a prior proceeding because this information was not
available until after the Appeals Council’s denial”).
For the foregoing reasons, the Court finds that it is
appropriate to remand this case for consideration of new and
material

evidence

-

namely,

the

favorable

plaintiff’s subsequent Title II action.

determination

on

In light of this finding,

the Court does not reach plaintiff’s other arguments regarding the
alleged errors in ALJ Harvey’s decision.
B.

Plaintiff is Not Entitled to Remand for Payment of
Benefits

Plaintiff contends that this Court should find, as a matter of
law, that he was disabled as of April 30, 2014 (his 50th birthday),
7

and that this matter “should be remanded for payment of benefits
from April 30, 2014 and ongoing, with the closed period from
May 19, 2012 to April 29, 2014 remanded for further proceedings.”
Docket No. 10-1 at 27.

The Court disagrees.

Remand for calculation and payment of benefits is appropriate
only

“if

disability

the

record

that

provides

render[s]

any

persuasive
further

evidence

of

total

proceedings pointless.”

Kress v. Barnhart, 297 F. Supp. 2d 623, 624 (W.D.N.Y. 2004)
(internal quotation omitted).

Plaintiff argues that the evidence

of record overwhelmingly establishes that he was limited to a
sedentary RFC in April 2014 and that, under Medical-Vocational
Guideline 201.14, he was therefore per se disabled as of his 50th
birthday.

The Court is not prepared, based on the record before

it, to find that the only reasonable conclusion is that plaintiff
was limited to a sedentary RFC in April 2014.
Court notes that

In particular, the

plaintiff’s second surgery occurred on March 31,

2014, and that the evidence of his medical condition in the
immediate
abilities.

aftermath

of

that

event

is

mixed

in

terms

of

his

For example, plaintiff’s surgeon, Dr. Jennifer Gurske-

DePerio, reported on May 15, 2014, that plaintiff was “doing
fantastic,” to the point that he was “walking on the left leg when
he is not supposed to” because “it doesn’t hurt.”

T. 456.

On

June 26, 2014, plaintiff informed Dr. Gurske-DePerio that he was
currently working and that there had been a drastic increase in his
range of motion.

T. 458.

While the Court does not discount the

possibility that, on remand, the Commissioner may in fact determine

8

that plaintiff had a sedentary RFC in April 2014, “it is not the
role of this Court to weigh the evidence; that is the exclusive
province of the Commissioner.”

Barrett v. Colvin, 211 F. Supp. 3d

567, 581–82 (W.D.N.Y. 2016). In light of the limited circumstances
in

which

remand

for

calculation

and

payment

of

benefits

is

appropriate, and taking into account the fact that the Court has
already found that there is new and material evidence that the
Commissioner should consider prior to reaching a determination on
plaintiff’s

claim,

the

Court

finds

that

remand

for

further

administrative proceedings is the appropriate remedy in this case.
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Docket No. 10) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings

consistent

with

this

Decision

and

Order.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 14)
is denied.

The Clerk of the Court is directed to close this case.

ALL OF THE ABOVE IS SO ORDERED.

s/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 26, 2017
Rochester, New York.

9