Kocol v. Commissioner of Social Security
Filing
16
DECISION and ORDER DENYING 10 Plaintiff's Motion for Judgment on the Pleadings; GRANTING 14 Defendant's Motion for Judgment on the Pleadings. The Clerk of Court is directed to close the file. Signed by Hon. Leslie G. Foschio on 6/11/2019. (TAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
GORDON ANDREW KOCOL
Plaintiff,
DECISION
and
ORDER
v.
NANCY A. BERRYHILL, 1 Commissioner of
Social Security,
17-CV-01268-LGF
(consent)
Defendant.
_________________________________________
APPEARANCES:
LAW OFFICES OF KENNETH R. HILLER
Attorneys for Plaintiff
ANTHONY JOHN ROONEY, of Counsel
6000 Bailey Avenue
Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY
UNITED STATES ATTORNEY
Attorney for Defendant
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202
and
ELIZABETH ROTHSTEIN,
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
and
LAURA RIDGELL BOLTZ,
Special Assistant United States Attorney, of Counsel
Social Security Administration
Office of General Counsel
1961 Stout Street, Suite 4169
Denver, Colorado 80294
1
Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on April 17, 2018,
and pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, is substituted as the defendant in this
suit with no further action required to continue the action.
JURISDICTION
On June 19, 2016, the parties consented, pursuant to 28 U.S.C. § 636(c), to
proceed before the undersigned. (Dkt. No. 7). The court has jurisdiction over this
matter pursuant to 42 U.S.C. § 405(g). The matter is presently before the court on the
parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, filed by Plaintiff on August 31, 2018 (Dkt. 9), and by
Defendant on November 16, 2016 (Dkt. 14). For the reasons discussed below,
Plaintiff's motion is denied and the Commissioner’s motion is granted.
BACKGROUND and FACTS 2
Plaintiff Gordon Andrew Kocol (“Plaintiff”), brings this action pursuant to the
Social Security Act (“the Act”), seeking review of the Acting Commissioner of Social
Security (“the Commissioner” or “Defendant”) decision denying his application for
disability benefits for Supplemental Security Income (“SSI”) benefits under Title II of the
Act. Plaintiff, born on April 26, 1972 (R. 54), 3 alleges that he became disabled on May
22, 2013, when he stopped working as a result of a healing traumatic hand fracture,
broken left wrist, loss of strength in bilateral arms, lack of attention and concentration,
left ankle sprain, depression, difficulty sleeping, arthritis, and loud ear ringing. (R. 238).
Plaintiff’s application for disability benefits was initially denied by Defendant on
January 9, 2014 (R. 103), and, pursuant to Plaintiff’s request, a hearing was held before
2 In the interest of judicial economy, recitation of the Facts is limited to those necessary to decide the
pending motions for judgment on the pleadings.
3 “R” references are to the pages of the Administrative Record, electronically filed on July 2, 208 (Dkt. 8).
2
Administrative Law Judge Bryce Baird (“the ALJ”) on March 31, 2016, in Buffalo, New
York, at which Plaintiff, represented by Deborah Bowman, Esq. (“Bowman”) appeared
and testified. (R. 62-82). Vocational expert (“VE”) Michele Erbacher also appeared and
testified. (R. 82-102). The ALJ’s decision denying Plaintiff's claim was rendered on
September 30, 2016. (R. 41-56). Plaintiff submitted additional evidence to the Appeals
Council, and on October 20, 2017, the ALJ’s decision became Defendant’s final
decision when the Appeals Council denied Plaintiff’s request for review. (R. 1-3). This
action followed on December 5, 2017, with Plaintiff alleging that the ALJ erred by failing
to find him disabled. (Dkt. No. 1).
On August 31, 2018, Plaintiff filed a motion for judgment on the pleadings
(“Plaintiff’s motion”), accompanied by a memorandum of law (Dkt. No. 10-1) (“Plaintiff’s
Memorandum”). Defendant filed, on November 16, 2018, Defendant’s motion for
judgment on the pleadings (“Defendant’s motion”), accompanied by a memorandum of
law (Dkt. No. 11-1) (“Defendant’s Memorandum”). Plaintiff filed a Response to
Defendant’s motion on the pleadings on December 20, 2018 (“Plaintiff's Reply
Memorandum”) (Dkt. No. 15). Oral argument was deemed unnecessary.
DISCUSSION
A district court may set aside the Commissioner’s determination that a claimant is
not disabled if the factual findings are not supported by substantial evidence, or the
decision is based on legal error. See 42 U.S.C. 405(g); Green-Younger v. Barnhart,
335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence” means ‘such relevant
3
evidence as a reasonable mind might accept as adequate.’” Shaw v. Chater, 221 F.3d
126, 131 (2d Cir. 2000).
A.
Standard and Scope of Judicial Review
The standard of review for courts reviewing administrative findings regarding
disability benefits, 42 U.S.C. §§ 401-34 and 1381-85, is whether the administrative law
judge's findings are supported by substantial evidence. Richardson v. Perales, 402
U.S. 389, 401 (1971). Substantial evidence requires enough evidence that a
reasonable person would "accept as adequate to support a conclusion." Consolidated
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). When evaluating a claim, the
Commissioner must consider "objective medical facts, diagnoses or medical opinions
based on these facts, subjective evidence of pain or disability (testified to by the
claimant and others), and . . . educational background, age and work experience."
Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (quoting Miles v. Harris, 645
F.2d 122, 124 (2d Cir. 1981)). If the opinion of the treating physician is supported by
medically acceptable techniques and results from frequent examinations, and the
opinion supports the administrative record, the treating physician's opinion will be given
controlling weight. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); 20 C.F.R. §
404.1527(d); 20 C.F.R. § 416.927(d). The Commissioner's final determination will be
affirmed, absent legal error, if it is supported by substantial evidence. Dumas, 712 F.2d
at 1550; 42 U.S.C. §§ 405(g) and 1383(c)(3). "Congress has instructed . . . that the
4
factual findings of the Secretary, 4 if supported by substantial evidence, shall be
conclusive." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
The applicable regulations set forth a five-step analysis the Commissioner must
follow in determining eligibility for disability insurance benefits. 20 C.F.R. §§ 404.1520
and 416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v.
Schweiker, 675 F.2d 464 (2d Cir. 1982). The first step is to determine whether the
applicant is engaged in substantial gainful activity during the period for which benefits
are claimed. 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is engaged in
such activity the inquiry ceases and the claimant is not eligible for disability benefits. Id.
The next step is to determine whether the applicant has a severe impairment which
significantly limits the physical or mental ability to do basic work activities as defined in
the applicable regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Absent an
impairment, the applicant is not eligible for disability benefits. Id. Third, if there is an
impairment and the impairment, or an equivalent, is listed in Appendix 1 of the
regulations and meets the duration requirement, the individual is deemed disabled,
regardless of the applicant's age, education or work experience, 20 C.F.R. §§
404.1520(d) and 416.920(d), as, in such a case, there is a presumption the applicant
with such an impairment is unable to perform substantial gainful activity. 5 42 U.S.C. §§
423(d)(1)(A) and 1382(c)(a)(3)(A); 20 C.F.R. §§ 404.1520 and 416.920. See also
4
Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
5
The applicant must meet the duration requirement which mandates that the impairment must last or be
expected to last for at least a twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.
5
Cosme v. Bowen, 1986 WL 12118, at * 2 (S.D.N.Y. 1986); Clemente v. Bowen, 646
F.Supp. 1265, 1270 (S.D.N.Y. 1986).
However, as a fourth step, if the impairment or its equivalent is not listed in
Appendix 1, the Commissioner must then consider the applicant's "residual functional
capacity" and the demands of any past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If
the applicant can still perform work he or she has done in the past, the applicant will be
denied disability benefits. Id. Finally, if the applicant is unable to perform any past
work, the Commissioner will consider the individual's "residual functional capacity," age,
education and past work experience in order to determine whether the applicant can
perform any alternative employment. 20 C.F.R. §§ 404.1520(f), 416.920(f). See also
Berry, 675 F.2d at 467 (where impairment(s) are not among those listed, claimant must
show that he is without "the residual functional capacity to perform [her] past work"). If
the Commissioner finds that the applicant cannot perform any other work, the applicant
is considered disabled and eligible for disability benefits. 20 C.F.R. §§ 404.1520(g),
416.920(g). The applicant bears the burden of proof as to the first four steps, while the
Commissioner bears the burden of proof on the final step relating to other employment.
Berry, 675 F.2d at 467.
In reviewing the administrative finding, the court must follow the five-step
analysis and 20 C.F.R. § 416.935(a) (“§ 416.935(a)”), to determine if there was
substantial evidence on which the Commissioner based the decision. 20 C.F.R. §
416.935(a); Richardson, 402 U.S. at 410.
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B.
Substantial Gainful Activity
The first inquiry is whether the applicant engaged in substantial gainful activity.
"Substantial gainful activity" is defined as "work that involves doing significant and
productive physical or mental duties” done for pay or profit. 20 C.F.R. § 404.1510(a)(b).
Substantial work activity includes work activity that is done on a part-time basis even if it
includes less responsibility or pay than work previously performed. 20 C.F.R. §
404.1572(a). Earnings may also determine engagement in substantial gainful activity.
20 C.F.R. § 404.1574. In this case, the ALJ concluded Plaintiff had not engaged in
substantial gainful activity since May 18, 2012, Plaintiff's alleged onset date of disability.
(R. 19). Plaintiff does not contest this finding.
C.
Severe Physical or Mental Impairment
The second step of the analysis requires a determination whether the disability
claimant had a severe medically determinable physical or mental impairment that meets
the duration requirement in 20 C.F.R. § 404.1509 (“§ 404.1509"), and significantly limits
the claimant’s ability to do "basic work activities." If no severe impairment is found, the
claimant is deemed not disabled and the inquiry ends. 20 C.F.R. § 404.1420(a)(4)(ii).
The Act defines "basic work activities" as "abilities and aptitudes necessary to do
most jobs," and includes physical functions like walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and
speaking; understanding, carrying out, and remembering simple instructions; use of
judgment; responding appropriately to supervision, co-workers and usual work
situations; and dealing with changes in a routine work setting. 20 C.F.R. §§
404.1521(b) (Ҥ 404.1521(b)"), 416.921(b). The step two analysis may do nothing more
7
than screen out de minimus claims, Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.
1995), and a finding of a non-severe impairment should be made only where the
medical evidence establishes only a slight abnormality which would have no more than
a minimal effect on the claimant’s ability to work. Rosario v. Apfel, 1999 WL 294727, at
*5 (E.D.N.Y. March 19, 1999) (quoting Social Security Ruling (“SSR”) 85-28, 1985 WL
56856).
In this case, the ALJ determined that Plaintiff suffered from the severe
impairments of seizures, lumbago and depression and that Plaintiff's left inguinal hernia
status post repair in February 2011 and borderline intellectual functioning were not
severe. (R. 13-14). Plaintiff does not contest the ALJ’s step two findings.
D. Listing of Impairments
At step three, the ALJ found that Plaintiff's impairments did not meet or medically
equal the criteria for disability under Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P (“The
Listing of Impairments”), specifically 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 12.04
(“§ 12.04") (Affective Disorders), 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 12.06 (“§
12.06") (Anxiety Related Disorders), and 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, §
12.09 (Ҥ 12.09") (Substance Addiction Disorders). (R. 4). Plaintiff does not contest the
ALJ’s step three findings.
E. Residual functional capacity
Once an ALJ finds a disability claimant does not have a severe medically
determinable physical or mental impairment, 20 C.F.R. § § 404.1520(a)(4)(ii), that
significantly limits the claimant’s physical and mental ability to do work activities, Berry,
675 F.2d at 467, and the claimant is not able, based solely on medical evidence, to
8
meet the criteria established for an impairment listed under Appendix 1, the burden
shifts to the Commissioner to show that despite the claimant’s severe impairment, the
claimant has the residual functional capacity to perform alternative work, 20 C.F.R.
§ 404.1520(a)(4)(iv), and prove that substantial gainful work exists that the claimant is
able to perform in light of the claimant’s physical capabilities, age, education,
experience, and training. Parker, 626 F.2d 225 at 231. To make such a determination,
the Commissioner must first show that the applicant's impairment or impairments are
such that they nevertheless permit certain basic work activities essential for other
employment opportunities. Decker v. Harris, 647 F.2d 291, 294 (2d Cir. 1981).
Specifically, the Commissioner must demonstrate by substantial evidence the
applicant's "residual functional capacity" with regard to the applicant's strength and
"exertional capabilities." Id. An individual's exertional capability refers to the
performance of "sedentary," "light," "medium," "heavy," and "very heavy" work. Decker,
647 F.2d at 294.
In the instant case, the ALJ assessed Plaintiff with the residual functional
capacity for sedentary work, with the additional limitations of lifting and carrying 10 lbs.
occasionally and five lbs. frequently, sitting for six hours in an 8-hour workday, standing
and/or walking for two hours in an 8-hour workday, no climbing of ladders, ropes, or
scaffolds, frequent handling/gross manipulation and fingering/fine manipulation of
objects with the right hand, no exposure to excessive vibration, or to such hazards as
unprotected heights or moving machinery, and limited to simple routine tasks that can
be learned after a short demonstration or within 30 days. (R. 45). Plaintiff contends
that the ALJ’s residual functional capacity assessment of Plaintiff is erroneous as the
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Appeals Council erred in not providing reasons for rejecting additional evidence
submitted by Plaintiff from Plaintiff's treating physician Craig K. Maclean, D.O. (“Dr.
Maclean”), (R. 32), wherein Dr. Maclean opined that Plaintiff was very limited in his
ability to stand, push, pull, and function in a work setting at a consistent pace, that
undermines the ALJ’s residual functional capacity assessment of Plaintiff for sedentary
work with limitations to lifting and carrying 10 pounds and five pounds frequently, sitting
up to six hours in an eight-hour day, standing or walking up to two hours in an eighthour day, no climbing ropes, ladders, scaffolds, frequent handling/gross manipulation
and fingering/fine manipulation of objects with the right hand, no exposure to excessive
vibration, hazards like unprotected heights or moving machinery, limited to simple
routine tasks that can be learned after a short demonstration or within 30 days. (R. 45).
Plaintiff's Memorandum at 11-16. Defendant maintains that the Appeals Council
properly denied Plaintiff's request for review, and that such denial requires the court to
evaluate only whether the ALJ’s decision is supported by substantial evidence.
Defendant’s Memorandum at 9-10. Plaintiff's motion on this issue is without merit.
The Act provides that “[t]he dismissal of a request for Appeals Council review is
binding and not subject to further review.” 20 C.F.R. § 416.1472. Remand is
appropriate, however, in instances where the Appeals Council provides no reason for
accepting an ALJ’s decision upon receiving supplemental evidence from a claimant’s
treating physician. See Newbury v. Astrue, 321 Fed. App’x 16, 17 (2d Cir. 2009)
(remand where ALJ and Appeals Council failed to provide reasons for not crediting
assessment of claimant’s treating psychiatrist); Rosas-Nozario v. Colvin, 2015 WL
5104548, at *3 (W.D.N.Y. Aug. 27, 2015) (Appeals Council obligated to provide
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explanation for not crediting claimant’s treating physician opinion); Asturias v. Colvin,
2014 WL 3110028, at *6 (W.D.N.Y. July 7, 2014); Stadler v. Barnhart, 464 F. Supp.2d
183, 188 (W.D.N.Y. 2006) (remand where Appeals Council rejected newly admitted
treating physician opinion that conflicted with the ALJ’s residual functional capacity
assessment of claimant)). Here, on October 20, 2017, the Appeals Council reviewed
additional evidence provided by Plaintiff including records from Dr. Maclean, an
osteopath with Southtowns Family Practice (“Southtowns”), dated November 18, 2016
through November 22, 2016 (R. 24-26), finding that such evidence added no
reasonable probability that would alter the ALJ’s finding on Plaintiff's disability (R. 2),
and from Southtowns dated March 24, 2017 through August 10, 2017 (R. 10-11, 20),
and Dent Neurologic Institute (“Dent”), from June 21, 2017 through June 28, 2017 (R.
13-18), finding such evidence irrelevant as the medical visits occurred after the date of
the ALJ’s decision. (R. 2). The Appeals Council also advised that if Plaintiff wanted to
be considered disabled after October 5, 2016, Plaintiff needed to file a new disability
benefits application. (R. 2). Because none of the evidence newly submitted to the
Appeals Council pertains to the period prior to the ALJ’s October 5, 2016 decision, the
evidence was irrelevant to Plaintiff’s claim and the ALJ was not required to consider it.
See 20 C.F.R. § 404.970(b) (“If new and material evidence is submitted, the Appeals
Council shall consider the additional evidence only where it relates to the period on or
before the date of the administrative law judge hearing decision.”). Although the
Appeals Council may not categorically disregard medical evidence as irrelevant solely
because it is generated after the ALJ’s decision, Newbury v. Astrue, 321 Fed.Appx. 16,
18 (2d Cir. Mar. 26, 2009) (citing Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004), it
11
need not be considered absent some indication it pertains to the relevant period, for
which the onus is on Plaintiff. See Wilbon v. Colvin, 2016 WL 5402702, at * 4
(W.D.N.Y. Sept. 28, 2018) (recognizing the plaintiff has the burden of establishing new
medical evidence generated after the ALJ’s decision is relevant to the period of time in
which Plaintiff must establish disability if such relevance is not apparent from the face of
the newly submitted evidence). Where, as here, the newly submitted evidence contains
opinions that are based on contemporaneous physical examinations, and the Plaintiff
fails to establish, as is his burden, that the newly submitted evidence generated after
the ALJ’s hearing decision relates back to the relevant period, such evidence is
irrelevant to Plaintiff’s disability benefits claim and the Appeals Council is not required to
consider it. See Mulrain v. Commissioner of Social Security, 2011 WL 2516068, at * 3940 (2d Cir. June 24, 2011) (affirming district court’s decision denying remand for
consideration of new evidence for which Plaintiff failed to meet his burden of
establishing such material, generated after the ALJ’s decision, was relevant to the
period of time prior to such decision).
Plaintiff's motion on this issue is therefore DENIED.
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CONCLUSION
Based on the foregoing, Plaintiff's motion (Doc. No. 10) is DENIED; Defendant’s
motion (Doc. No. 14) is GRANTED. The Clerk of Court is directed to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:
June 11th, 2019
Buffalo, New York
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