Kellner v. Commissioner of Social Security

Filing 22

DECISION AND ORDER GRANTING Plaintiff's 13 Motion for Judgment on the Pleadings; DENYING Defendant's 20 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for further proceedings consistent with this decision; DIRECTING the Clerk of Court to CLOSE this case. Signed by William M. Skretny, United States District Judge on 6/21/2019. (MEAL) - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
PAUL K. KELLNER, JR.,
Plaintiff,
v.

DECISION AND ORDER
17-CV-947S

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________

1.

Plaintiff Paul K. Kellner, Jr. brings this action pursuant to the Social Security

Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security
that denied his application for supplemental security income (“SSI”) under Title XVI of the
Act. (Docket No. 1). The Court has jurisdiction over this action under 42 U.S.C. § 405(g).
2.

Plaintiff protectively filed an application for SSI with the Social Security

Administration (“SSA”) on June 7, 2013. (R.1 at 16, 199-203). Plaintiff alleged disability
since October 22, 2010 due to mental health issues, disc damage in lumbar spine, kidney
and bladder problems, and Barrettes esophagus. (R. at 21, 230). Plaintiff’s applications
were denied (R. at 135-47), and Plaintiff thereafter requested a hearing before an
administrative law judge (“ALJ”) (R. at 16).
3.

On July 20, 2015, ALJ Sharon Seeley held a hearing at which Plaintiff—

represented by counsel—appeared and testified. (R. at 82-133). Vocational Expert
(“VE”) Josiah Pearson also appeared and testified via telephone. Id. At the time of the
hearing, Plaintiff was 48 years old (R. at 134, 199), with a 10th grade education and a

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Citations to the underlying administrative record are designated as “R.”

general equivalency degree. (R. at 92, 231). Plaintiff has past work experience as a
mold maker and a stock clerk. (R. at 120, 232).
4.

The ALJ considered the case de novo and, on February 12, 2016, issued a

written decision denying Plaintiff’s application for benefits. (R. at 16-26). On May 11,
2017, the Appeals Council denied Plaintiff’s request to review the ALJ’s decision. (R. at
5-8). Plaintiff filed the current action, challenging the Commissioner’s final decision, 2 on
September 22, 2017. (Docket No. 1).
5.

Both parties moved for judgment on the pleadings under Rule 12(c) of the

Federal Rules of Civil Procedure. (Docket Nos. 13, 20). Plaintiff filed a response on
October 26, 2018 (Docket No. 21), at which time this Court took the matter under
advisement without oral argument. For the reasons that follow, Plaintiff’s motion is
granted, and Defendant’s motion is denied.
6.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s
determination will be reversed only if it is not supported by substantial evidence or there
has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v.
Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla,” and it has been defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). Where evidence is deemed susceptible to more than

The ALJ’s February 12, 2016 decision became the final decision of the Commissioner of Social Security
on this matter when the Appeals Council denied Plaintiff’s request for review.
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one rational interpretation, the Commissioner’s conclusion must be upheld.

See

Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
7.

“To determine on appeal whether an ALJ’s findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams ex rel. Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner’s
finding must be sustained “even where substantial evidence may support the plaintiff's
position and despite that the court’s independent analysis of the evidence may differ from
the [Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable
deference and will not substitute “its own judgment for that of the [Commissioner], even
if it might justifiably have reached a different result upon a de novo review.” Valente v.
Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
8.

The Commissioner has established a five-step sequential evaluation

process to determine whether an individual is disabled under the Act. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court of the United States recognized the validity
of this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing
whether a claimant is disabled. 482 U.S. 137, 140-42 (1987).
9.

The five-step process is as follows:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not,
the [Commissioner] next considers whether the claimant has
a “severe impairment” which significantly limits his physical or
mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based
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solely on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If the claimant
has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age,
education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he has the residual functional capacity to perform
his past work. Finally, if the claimant is unable to perform his
past work, the [Commissioner] then determines whether there
is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original);
see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
10.

Although the claimant has the burden of proof on the first four steps, the

Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S.
at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is divided
into two parts. First, the Commissioner must assess the claimant's job qualifications by
considering his physical ability, age, education, and work experience.

Second, the

Commissioner must determine whether jobs exist in the national economy that a person
having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20
C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460 (1983).
11.

The ALJ analyzed Plaintiff’s claim for benefits under the process set forth

above. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since June 7, 2013. (R. at 18). At step two, the ALJ found that Plaintiff has the
following severe impairments: degenerative disc disease of the lumbar spine; benign
prostate hypertrophy with outflow obstruction; left carpal tunnel syndrome; right ulnar
neuropathy now status-post surgical release; and history of transient ischemic attack. Id.

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At step three, the ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals any impairment(s) listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. (R. at 20).
12.

Next, the ALJ found that Plaintiff retained the residual functional capacity

(“RFC”) to perform a less than full range of sedentary work with certain exceptions:
[Plaintiff] can: lift, carry, push and pull ten pounds occasionally
and light items such as folders or small tools frequently; sit six
hours in an eight-hour workday, alternating after one hour to
standing five minutes; stand and/or walk two hours in an eighthour workday, alternating after thirty minutes to sitting five
minutes; occasionally stoop, kneel, crouch or crawl;
occasionally climb ramps or stairs, but never climb ladders,
ropes, or scaffolds; frequently handle and finger with his
bilateral upper extremities; perform work that does not require
repetitive bending at the waist or lower back and does not
involve concentrated exposure to smoke, dust, fumes or other
pulmonary irritants.
Id.
13.

At step four, the ALJ found Plaintiff is unable to perform any past relevant

work. (R. at 25). At step five, the ALJ found that there are jobs that exist in significant
numbers in the national economy that Plaintiff can perform. Id. Accordingly, the ALJ
found that Plaintiff is not disabled. (R. at 26).
14.

Plaintiff argues the Commissioner’s denial of benefits is not supported by

substantial evidence because the Appeals Council failed to properly consider additional
evidence. (Docket No. 13 at 22-36). For the reasons that follow, this Court agrees.
15.

On April 13, 2016, Plaintiff requested review of the ALJ’s February 12, 2016

decision and submitted additional evidence to the Appeals Council. (R. at 11, 32-62).
Plaintiff contends the Appeals Council erred in denying review of the ALJ’s decision
because it “failed to properly evaluate new and material evidence” and “fail[ed] to give
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good reasons to reject the favorable opinion of [Plaintiff’s] treating neurosurgeon.”
(Docket No. 13 at 22, 30).
16.

The Appeals Council is required to review a denial of benefits if it “receives

additional evidence that is new, material, and relates to the period on or before the date
of the hearing decision, and there is a reasonable probability that the additional evidence
would change the outcome of the decision.” 20 C.F.R. § 416.1470(a)(5).
17.

As a threshold matter, Defendant does not contest that the additional

evidence is new and chronologically relevant. At issue is whether this additional evidence
is probative, “meaning it provides a reasonable probability that the new evidence would
have influenced the Commissioner to decide the claimant's application differently.”
McIntire v. Astrue, 809 F. Supp. 2d 13, 21 (D. Conn. 2010); see also Webb v. Apfel, 2000
U.S. Dist. LEXIS 13116, *40, 2000 WL 1269733 (W.D.N.Y. Feb. 8, 2000).
18.

The record before the ALJ included 550 pages of medical records, which

the ALJ considered and discussed. (R. at 18-25). Plaintiff has a documented history of
low back and leg pain and presented diagnostic evidence of “severe degenerative disc
disease at L5-S1 with disc space collapse, retrolisthesis and secondary foraminal
stenosis.” (R. at 21). Neurosurgeon P. Jeffrey Lewis, M.D. recommended an anterior
approach discectomy and fusion at L5-S1 in March 2013, however, surgery was
postponed due to more immediate medical problems. Id.
19.

The ALJ noted that on August 6, 2014, Dr. Lewis’s found “moderate to

severe lumbar range of motion deficits, but negative straight leg raises, and normal
sensory, motor and reflex examinations of the lower extremities.” Id. On February 16,
2015, “[Plaintiff] underwent a total lumbar discectomy and decompression with fusion at

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L5-S1.” Id. The ALJ considered this procedure, as well as records of Plaintiff’s postsurgical follow-up appointments with Dr. Lewis. Id.
20.

The ALJ noted that “[b]y March 2015, [Plaintiff] reported improvement in his

symptoms and stated that he was doing more around the house now.” Id. The ALJ also
pointed out that “[b]y June 2015, Plaintiff] was no longer using a cane and his biggest
complaint was left knee pain after sitting too long” and “[Plaintiff] was pleased with his
surgical outcome.” Id. Indeed, on June 9, 2015, Dr. Lewis noted “[Plaintiff] is quite happy
with the outcomes of his surgery.” (R. at 650). This June 2015 office note was the most
recent report of Dr. Lewis’s opinion in the record before the ALJ.
21.

Based on “careful consideration of the entire record,” at step two, the ALJ

determined that Plaintiff’s degenerative disc disease of the lumbar spine is a severe
impairment. (R. at 18-20). At step three, the ALJ noted she had “given particular
consideration to listings 1.04 and 11.04,” but found that “[t]he medical evidence does not
document listing-level severity, and no acceptable medical source has mentioned findings
equivalent in severity to the criteria of any listed impairment, individually or in
combination.” (R. at 20). The ALJ then determined Plaintiff retained the RFC to “perform
less than a full range of sedentary work” with certain exceptions. Id.
22.

Listing 1.04 is met when a claimant has one or more disorders of the spine,

resulting in compromise of a nerve root or the spinal cord with:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of
the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine);
or
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B. Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively,
as defined in 1.00B2b.
20 C.F.R. Pt. 404, App’x 1, § 1.04
23.

Subsequent to the ALJ’s decision, Plaintiff submitted additional evidence to

the Appeals Council, including medical records that post-dated those available to the ALJ.
(R. at 32-62). The Appeals Council acknowledged this submission, “[Plaintiff] submitted
four pages of evidence from WNY Urology Associates from April 28, 2014, seven pages
of evidence from Dr. Fayyaz from December 12, 2014 to June 16, 2015, and 23 pages of
evidence from Dr. Lewis from August 11, 2015 to January 22, 2016.” (R. at 6). However,
the Appeals Council found “this evidence does not show a reasonable probability that it
would change the outcome of the decision.” Id. Accordingly, The Appeals Council “did
not consider and exhibit this evidence.” Id.
24.

Plaintiff argues the Appeals Council erred in its evaluation and asserts

“there is a reasonable probability that the new evidence would change the ALJ’s
decision.” (Docket No. 13 at 26). This Court agrees.
25.

The ALJ’s decision was informed by Dr. Lewis’s treatment notes and

physical examinations of Plaintiff through June 9, 2015. (R. at 628-51). These records,
in isolation, substantially support the ALJ’s determination that Plaintiff’s spinal surgery

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had been successful. (R. at 21). However, this inference is called into question by the
additional evidence submitted to the Appeals Council, particularly by Dr. Lewis’ records
of Plaintiff’s subsequent treatment.
26.

On August 11, 2015, Plaintiff’s chief complaints were of buttock, knee, and

leg pain and Dr. Lewis noted that “[Plaintiff’s] overall back pain is definitely better since
the surgery.” (R. at 33-34). However, on September 3, 2015, Dr. Lewis noted “[Plaintiff]
initially was doing well for several months but he has had a release [sic]” accompanied
by “increasing back and leg pain.” (R. at 42). In addition, CT scans of Plaintiff’s spine
dated August 18, 2015 and August 28, 2015 (R. at 35-41)—included among the additional
evidence submitted to the Appeals Council, but not available to the ALJ—caused
“concern[ ] about the fusion,” which “does not look robust through the L5-S1 space.” (R.
at 43).
27.

Plaintiff had another MRI of the lumbar spine on October 13, 2015, and

another follow-up with Dr. Lewis’s office on December 2, 2015. (R. at 44-48). The office
notes from this appointment indicate “[Plaintiff] continues to have ongoing back pain,
greater on the left side, aggravated by walking” and “[h]is pain seems to be worsening.”
(R. at 47).

Another lumbar spine CT scan was ordered, which was performed on

December 21, 2015. (R. at 49-50).
28.

On January 22, 2016, Dr. Lewis reviewed the most recent CT scans and

performed a physical examination. (R. at 51). Dr. Lewis noted the “CT scan shows a
solid well[-]healed fusion at L5-S1,” but also shows “foraminal stenosis at L5-S1
bilaterally.” Id. Dr. Lewis opined that “[Plaintiff’s] pain is coming from the foraminal

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stenosis at L5-S1” and recommended a left L5-S1 foraminotomy, “a decompressive
procedure.” (R. at 52). Dr. Lewis also detailed his physical examination findings:
[Plaintiff’s] activities of daily living are limited by persistent
pain radiating from his back through his left lower extremity.
He shows evidence physically of nerve root compression. He
has positive straight leg raising, an antalgic gait, hypoactive
left ankle reflex and weakness of left ankle plantar flexion. His
imaging studies including CT and MRI scans, show foraminal
stenosis supported by the radiology report. He has failed well
over three months of conservative treatment. It is 11 months
since his surgery was done. He is disabled from work, is on
activity modifications.
Id.
29.

Defendant admits that “Plaintiff continued to report back and leg pain

resulting from nerve-root compression” and that “Dr. Lewis recommended a second
lumbar procedure to relieve this compression.” (Docket No. 20 at 13-14). Nevertheless,
Defendant maintains “[t]he Appeals Council was correct; there was no reasonable
probability that the new evidence would change the outcome of the ALJ’s decision.” Id.
30.

According to Defendant, “[a]t most, the new evidence shows that Plaintiff

continued to experience some degree of back and leg pain after his lumbar fusion” and
“[t]he fact that Plaintiff ultimately required a second lumbar procedure is not in tension
with the ALJ’s finding that Plaintiff was limited to a reduced range of sedentary work.” Id.
This argument is unavailing.
31.

On the basis of the record before her, the ALJ determined that the criteria

for Listing 1.04 was not met because “no acceptable medical source has mentioned
findings equivalent in severity.” (R. at 20) (emphasis supplied).
32.

Listing 1.04(A) is met when a claimant shows:

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Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
20 C.F.R. Pt. 404, Subpt. P, App’x 1, §1.04(A).
33.

The ALJ incorporated limitation of motion of the spine into the RFC, finding

Plaintiff is limited to “work that does not require repetitive bending at the waist or lower
back.” (R. at 20). However, the ALJ also noted that the Plaintiff’s physical examination
showed “negative straight leg raises, and normal sensory, motor and reflex examinations
of the lower extremities.” (R. at 21).
34.

Dr. Lewis’s findings were significantly different on January 22, 2016, but the

ALJ did not have the opportunity to consider that record. Less than a year after Plaintiff’s
surgery, physical examination showed nerve root compression associated with leg and
back pain, weakness of ankle plantar flexion, hypoactive ankle reflex, and positive straight
leg raising. (R. at 51).
35.

In this case, the ALJ’s decision explicitly relied on the dearth of acceptable

medical opinion evidence that the Listing criteria were met. (R. at 20). As Plaintiff’s
treating neurosurgeon, Dr. Lewis is certainly an acceptable medical source. Further, Dr.
Lewis’s later findings and opinions indicate Plaintiff’s spinal impairment(s) may meet or
medically equal the criteria of Listing 1.04(A).
36.

Because the ALJ relied on the absence of such evidence in denying

Plaintiff’s application for benefits, this Court finds there is a reasonable probability this
new evidence would change the outcome of the ALJ’s decision.

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37.

For the foregoing reasons, this Court finds that the Appeals Council failed

to properly consider new, material, and chronologically relevant evidence, and that the
Commissioner’s decision is not supported by substantial evidence. Therefore, remand is
warranted.
IT HEREBY IS ORDERED, that Plaintiff’s Motion for Judgment on the Pleadings
(Docket No. 13) is GRANTED.
FURTHER, that Defendant’s Motion for Judgment on the Pleadings (Docket No.
20) is DENIED.
FURTHER, that this case is REMANDED to the Commissioner of Social Security
for further proceedings consistent with this decision.
FURTHER, that the Clerk of Court is directed to CLOSE this case.
SO ORDERED.

Dated:

June 21, 2019
Buffalo, New York

/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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