Abate v. Commissioner of Social Security
Filing
16
ORDER denying 9 Motion for Judgment on the Pleadings; granting 12 Motion for Judgment on the Pleadings; affirming the Defendant's unfavorable determination and dismissing the Complaint. Signed by Magistrate Judge William B. Carter on 8/10/20. (SG)
Case 1:18-cv-00266-WBC Document 16 Filed 08/11/20 Page 1 of 20
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________
SHERRIE ABATE,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
1:18-CV-0266
(WBC)
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
LAW OFFICES OF KENNETH HILLER, PLLC
Counsel for Plaintiff
6000 North Bailey Ave, Ste. 1A
Amherst, NY 14226
KENNETH HILLER, ESQ.
TIMOTHY HILLER, ESQ.
U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, NY 10278
ELLIE DOROTHY, ESQ.
FRANCIS TANKARD, ESQ.
SIXTINA FERNANDEZ, ESQ.
William B. Mitchell Carter, U.S. Magistrate Judge,
MEMORANDUM-DECISION and ORDER
The parties consented, in accordance with a Standing Order, to proceed before
the undersigned. (Dkt. No. 20.) 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’ crossmotions 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 denied, and the
Commissioner’s motion is granted.
I.
RELEVANT BACKGROUND
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A.
Factual Background
Plaintiff was born in 1968. (T. 173.) She received a GED. (T. 269.) Generally,
Plaintiff’s alleged disability consists of tenosynovitis in left ankle, effusion of ankle joint,
and “right knee pain.” (T. 268.) Her amended alleged disability onset date is May 2,
2014. (T. 54, 112.) Her date last insured is June 30, 2020. (T. 56.) Her past relevant
work consists of activities assistant, daily living specialist, habilitation specialist, and
instructor. (T. 269.)
B.
Procedural History
On May 19, 2014, Plaintiff applied for Disability Insurance Benefits (“SSD”) under
Title II and Supplemental Security Income (“SSI”) under Title XVI of the Social Security
Act. (T. 173.) Plaintiff’s applications were initially denied, after which she timely
requested a hearing before an Administrative Law Judge (“the ALJ”). On October 26,
2016, Plaintiff appeared before the ALJ, Timothy M. McGuan. (T. 109-137.) On March
6, 2017, ALJ McGuan issued a written decision finding Plaintiff not disabled under the
Social Security Act. (T. 51-71.) On December 22, 2017, the AC denied Plaintiff’s
request for review, rendering the ALJ’s decision the final decision of the Commissioner.
(T. 1-7.) Thereafter, Plaintiff timely sought judicial review in this Court.
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 56-66.) First, the ALJ found Plaintiff met the insured status
requirements through June 30, 2020 and Plaintiff had not engaged in substantial gainful
activity since May 2, 2014. (T. 56.) Second, the ALJ found Plaintiff had the severe
impairments of: status post left knee surgery; degenerative left ankle with severe
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proliferative synovial hypertrophy and hyperplasia; degenerative right acromioclavicular
joint symptomatic as of November 2015; arthritis of the cervical spine; obesity; and flap
tear of the medial meniscus and chondromalacia of the right knee beginning in late
2014 with surgical repair in November 2015. (T. 57.) Third, the ALJ found Plaintiff did
not have an impairment that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (Id.) Fourth, the ALJ found
Plaintiff had the residual functional capacity (“RFC”) to perform light work with the option
to sit or stand every 45 minutes. (T. 57.) 1 The ALJ further found Plaintiff could
occasionally climb stairs and ladders but could perform no overhead reaching and must
avoid kneeling and squatting. (T. 57-58.) Fifth, the ALJ determined Plaintiff was unable
to perform past relevant work; however, there were jobs that existed in significant
numbers in the national economy Plaintiff could perform. (T. 63-66.)
II.
THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.
Plaintiff’s Arguments
Plaintiff makes three separate arguments in support of her motion for judgment
on the pleadings. First, Plaintiff argues the ALJ relied on a stale medical opinion in
formulating his RFC determination. (Dkt. No. 9 at 12-14.) Second, Plaintiff argues the
ALJ failed to provide “good reasons” for rejecting the opinion of a treating medical
source. (Id. at 14-17.) Third, and lastly, Plaintiff argues remand is required because
Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full
or wide range of light work, you must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. §§
404.1567(b), 416.967(b).
1
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new and material evidence was submitted to the AC. (Id. at 17-20.) Plaintiff also filed a
reply in which she reiterated her original arguments. (Dkt. No. 13.)
B.
Defendant’s Arguments
In response, Defendant makes three arguments. First, Defendant argues the
ALJ properly determined the RFC and considered the record as a whole. (Dkt. No. 12
at 16-19.) Second, Defendant argues the ALJ properly considered a medical opinion
that Plaintiff was limited to part-time work. (Id. at 19-24.) Third, and lastly, Defendant
argues Plaintiff has not shown that the additional evidence submitted to the AC warrants
remand. (Id. at 24-29.)
III.
RELEVANT LEGAL STANDARD
A.
Standard of Review
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 only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
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“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and 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, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” 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 may 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).
B.
Standard to Determine Disability
The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R.
§§ 404.1520, 416.920. The Supreme Court has recognized the validity of this
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sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287 (1987). The five-step process is as follows:
(1) whether the claimant is currently engaged in substantial gainful activity;
(2) whether the claimant has a severe impairment or combination of
impairments; (3) whether the impairment meets or equals the severity of the
specified impairments in the Listing of Impairments; (4) based on a ‘residual
functional capacity’ assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that the claimant
can perform given the claimant's residual functional capacity, age,
education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
IV.
ANALYSIS
The RFC is an assessment of “the most [Plaintiff] can still do despite [her]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 461.945(a)(1)2. The ALJ is responsible for
assessing Plaintiff’s RFC based on a review of relevant medical and non-medical
evidence, including any statement about what Plaintiff can still do, provided by any
medical sources. Id. §§ 404.1527(d), 404.1545(a)(3), 404.1546(c), 416.927(d),
416.945(a)(3), 416.946(c). Although the ALJ has the responsibility to determine the
RFC based on all the evidence in the record, the burden is on Plaintiff to demonstrate
functional limitations that preclude any substantial gainful activity. Id. §§ 404.1512(c),
404.1527(e)(2), 404.1545(a), 404.1546(c), 416.912(c), 416.927(e)(2), 416.945(a),
416.946(c).
A.
Stale Medical Opinion
2
Effective March 27, 2017, many of the regulations cited herein have been amended, as
have Social Security Rulings (“SSRs”). Nonetheless, because Plaintiff’s social security application was
filed before the new regulations and SSRs went into effect, the court reviews the ALJ's decision under the
earlier regulations and SSRs.
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Plaintiff argues the opinion of consultative examiner, John Schwab, D.O.,
predated Plaintiff’s knee surgeries and the development of Plaintiff’s cervical
impairment. (Dkt. No. 9 at 12-14.) Plaintiff argues because “the only medical opinion
that supported a finding of not disabled predated two knee surgeries and the
development of herniated discs and spinal stenosis in the cervical spine, there was not
sufficient medical basis for the ALJ’s RFC assessment.” (Id. at 14.)
Plaintiff’s argument, the ALJ’s RFC determination was the product of legal error
because it was not based on an updated medical opinion, is without merit. (Dkt. No. 9
at 13.) The Second Circuit has held that where, “the record contains sufficient evidence
from which an ALJ can assess the [plaintiff’s] residual functional capacity, a medical
source statement or formal medical opinion is not necessarily required.” Monroe v.
Comm'r of Soc. Sec., 676 F. App'x 5, 8 (2d Cir. 2017) (internal quotations and citation
omitted); see Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013) (“Although the ALJ's
conclusion may not perfectly correspond with any of the opinions of medical sources
cited in his decision, he was entitled to weigh all of the evidence available to make an
RFC finding that was consistent with the record as a whole.”). As outlined further
herein, the ALJ properly determined Plaintiff’s RFC based on the record as a whole
included evidence submitted after Plaintiff’s surgeries.
Although Dr. Schwab provided an opinion prior to Plaintiff’s subsequent
surgeries, his opinion is not rendered obsolete based solely on timing. To be sure,
“medical source opinions that are conclusory, stale, and based on an incomplete
medical record may not be substantial evidence to support an ALJ finding.” Camille v.
Colvin, 104 F.Supp.3d 329, 343 (W.D.N.Y. 2015), aff'd, 652 F. App'x 25 (2d Cir. 2016).
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Further, a medical opinion may be stale if it does not account for the plaintiff’s
deteriorating condition. See Carney v. Berryhill, No. 16-CV-269, 2017 WL 2021529, at
*6 (W.D.N.Y. May 12, 2017). “However, a medical opinion is not necessarily stale
simply based on its age.” Biro v. Comm'r of Soc. Sec., 335 F. Supp. 3d 464, 470
(W.D.N.Y. 2018). Remand is warranted where more recent evidence in the record
“directly contradict[s] the older reports of [plaintiff’s] functioning on which the ALJ relied”
and the ALJ failed to fully analyze the more recent evidence. Blash v. Comm'r of Soc.
Sec. Admin., No. 19-1674-CV, -- F. App’x ---, 2020 WL 2517062, at *1 (2d Cir. May 18,
2020).
Dr. Schwab examined Plaintiff on September 11, 2014. (T. 516.) On
examination, Dr. Schwab observed Plaintiff was in not acute distress; walked with a
normal gait; could not walk on heels and toes; stopped squatting 1/8 of the way down
due to knee pain; had a normal stance; used no assistive devices; needed no help
changing for the exam or getting on and off the exam table; and was able to rise from a
chair without difficulty. (T. 517.) Plaintiff had full range of motion in her cervical and
lumbar spine, shoulders, elbows, forearms, wrists, hips, and knees. (T. 518.) Plaintiff
had reduced range of motion in her left ankle and full range of motion in her right ankle.
(Id.) Dr. Schwab reviewed an X-ray of Plaintiff’s right knee which noted “no significant
bony abnormality.” (T. 520.) Dr. Schwab opined Plaintiff had “moderate” limitations in
walking and climbing stairs and ladders. (T. 518.) He further opined Plaintiff should
avoid activities that triggered her asthma. (Id.)
In January 2015 Plaintiff presented to Excelsior Orthopaedics for evaluation of
right knee pain that began “several months ago” and became worse in the last two
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weeks after shoveling snow. (T. 535.) On examination Plaintiff’s right knee showed
“mild effusion,” no obvious instability, normal muscle tone, and full range of motion. (T.
536.) Plaintiff’s right calf was enlarged compared to left and she was tender to
palpation over the gastric muscle. (T. 536.) The examining physician’s assistant
suspected Plaintiff’s pain was “muscular in nature” but ordered testing to rule out deep
vein thrombosis (“DVT”). (T. 537.) An x-ray of the right knee showed “mild joint space
narrowing of the medial compartment.” (T. 538.)
On July 16, 2015, Michael Freitae, M.D., examined Plaintiff for her progressive
knee pain. (T. 604.) Dr. Freitae noted her examination was “most consistent with a
medial meniscus tear,” referred Plaintiff to physical therapy, and ordered an MRI. (Id.)
In August 2015, William Wind, M.D. examined Plaintiff and observed she walked with a
normal gait and her right knee had full range of motion. (T. 605.) Dr. Wind reviewed
Plaintiff’s MRI and diagnosed her with right knee medial meniscus tear. (T. 606.)
Plaintiff elected to undergo a right knee arthroscopy with partial medial meniscectomy.
(Id.) Surgery was scheduled for November 24, 2015. (T. 521.) However, Plaintiff did
not undergo surgery.
On August 3, 2016, Plaintiff visited the emergency room for left knee pain. (T.
624-630.) She had full range of motion, a stable joint, and no effusion. (T. 624.) The
provider noted a chronically swollen left ankle. (T. 624.) An x-ray of the knee showed
mild degenerative change of the medical compartment of the left knee joint. (T. 625.)
The provider wrote a work restriction stating Plaintiff was excused from work until
August 8, 2016, or until medically cleared by a private physician. (T. 580.)
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On August 10, 2016, Plaintiff saw John Karpie, M.D., of Buffalo Orthopaedic
Group for bilateral knee pain. (T. 631-632.) Plaintiff stated her left knee was worse
than the right knee. (T. 631.) Dr. Karpie noted Plaintiff had declined right-knee surgery
and the pain was tolerable at present. (T. 631.) Plaintiff walked with a limp. (Id.) Dr.
Karpie assessed moderate right knee osteoarthritis and left knee chondromalacia with
possible intra-articular injury. (T. 631.) Dr. Karpie ordered an MRI of the left knee and
wrote a work restriction stating that Plaintiff was disabled from work due to bilateral
knee pain from August 10, 2016 to August 24, 2016. (T. 581, 631-632.)
On August 17, 2016, Plaintiff underwent an MRI of the left knee. (T. 633.) The
MRI showed radial fraying and tearing of the lateral meniscus; a flap tear of the
meniscal tissue; grade 4 chondromalacia of the medial patellar facet and grade 2
chondromalacia at other locations; and a large joint effusion. (T. 633.)
On August 24, 2016, Plaintiff returned to Dr. Karpie. (T. 634-635.) He noted
Plaintiff had an intra-articular cortisone injection, which provided some relief. (T. 634.)
Dr. Karpie wrote another work restriction stating Plaintiff was disabled from work due to
left knee complex meniscus tear from August 24, 2016 to September 26, 2016, and was
scheduled for a left knee arthroscopy on September 1, 2016. (T. 585, 635.)
On October 27, 2016, Dr. Karpie wrote a work restriction stating Plaintiff was
under his care for her right shoulder and cervical spine. (T. 659.) He indicated Plaintiff
was released to work on October 28, 2016 with the restriction of no lifting. (T. 659.)
Plaintiff underwent an MRI of the cervical spine on November 14, 2016. (T. 661662.) The findings were mild straightening of the cervical lordosis likely due to muscle
spasm; left facet arthropathy at C3-4; and hypertrophy of the joint at C4-5. (T. 661-
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662.) On November 21, 2016, Dr. Karpie wrote a work restriction stating Plaintiff was
under his care for her right shoulder, left knee, and cervical spine. (T. 663.) Dr. Karpie
indicated Plaintiff was disabled from work from October 27, 2016 to December 20,
2016. (T. 663.) He added that Plaintiff had an appointment scheduled with a doctor to
assess her cervical spine on December 20, 2016. (T. 663.)
In assessing Plaintiff’s RFC, the ALJ afforded “great weight” to Dr. Schwab’s
opinion. (T. 62.) The ALJ concluded Dr. Schwab was “familiar with Social Security’s
rules and regulations regarding physical impairments and disability and the objective
findings of this thorough physical examination support his conclusions.” (Id.) The ALJ
further concluded the doctor’s opinion was consistent with the record from treating
sources, which documented normal gait or only slightly limping gait, and Plaintiff’s
reported activities of daily living. (T. 62-63.)
Plaintiff essentially argues Dr. Schwab’s opinion was rendered stale solely by
subsequent surgeries and diagnosis of a cervical spine impairment. (Dkt. No. 9 at 14.)
Plaintiff does not provide any evidence in the record that these subsequent events
caused greater functional limitations than provided for by the ALJ in her RFC
determination. (Id.) Ultimately, it is Plaintiff's burden to prove a more restrictive RFC
than the RFC assessed by the ALJ and here Plaintiff fails to do so. See Smith v.
Berryhill, 740 F. App'x 721, 726 (2d Cir. 2018).
First, Plaintiff states Dr. Schwab’s opinion is impermissibly stale because it
predated a knee surgery to repair a torn right meniscus. (Dkt. No. 9 at 12.) Although
surgery was scheduled (T. 521), Plaintiff did not follow through with surgery because
her right knee pain was “tolerable.” (T. 631.) Further, Dr. Schwab was aware of
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Plaintiff’s right knee pain, reviewed imagining of Plaintiff’s right knee, and considered
right knee impairment in his opinion of limitations. (T. 516-520.)
In early September 2016, approximately one month before her hearing, Plaintiff
underwent left knee surgery. (T. 650.) During a post-surgery follow up on September
14, 2016, Dr. Karpie noted Plaintiff was doing well, she reported some cramping in her
leg, she had a slight limp, and she denied numbness or tingling in her left lower
extremity. (T. 650.) At her hearing, Plaintiff testified her left knee was “50% better” after
surgery. (T. 115.) Plaintiff testified that prior to surgery she was working part time and
was having “a very hard time” with her knees, because work required “too much
walking” and stairs “were involved a lot.” (T. 117.) She stated she could not kneel or
squat. (T. 123-124.)
An MRI of Plaintiff’s cervical spine dated November 2016 indicated “mild
straightening of cervical lordosis likely due to muscle spasm, C3-4 left facet arthrosis,
and C4-5 hypertrophy of the right uncovertebral joint with right foraminal.” (T. 661-662.)
Dr. Karpie noted Plaintiff was “disabled” from work between October 27, 2016 to
December 20, 2016 due to her “cervical spine and right shoulder and left knee.” (T.
663.) The doctor referred Plaintiff to Gregory Castiglia, M.D. for her cervical spine and
an appointment was set for December 20, 2016. (Id.) A review of the record, including
evidence submitted to the AC does not contain treatment records from Dr. Castiglia.
Although the record included surgery for Plaintiff’s left knee and the additional
cervical impairment, such events did not render Dr. Schwab’s opinion impermissibly
stale. Overall, Plaintiff fails to show any additional limitations caused by these
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subsequent medical events. Further, the ALJ considered Plaintiff’s knee impairments
and cervical spine MRI in formulating her RFC determination.
In formulating Plaintiff’s RFC determination, the ALJ properly relied on the record
as a whole, including Plaintiff’s knee surgery and cervical spine impairment. See
Trepanier v. Comm'r of Soc. Sec. Admin., 752 F. App'x 75, 79 (2d Cir. 2018) (the ALJ is
obligated to formulate a claimant’s RFC based on the record as a whole, not just upon
the medical opinions alone). After her discussion of Dr Schwab’s examination and
opinion, the ALJ noted “subsequently dated records” which included “new impairments.”
(T. 60.) The ALJ discussed treatment for Plaintiff’s knee impairment including objective
observations, medical imagining, and surgery. (T. 60-61.) The ALJ considered
statements Plaintiff was “disabled” for set periods of time after her knee surgery. (T.
61.) The ALJ also considered Plaintiff’s cervical spine impairment and noted the record
contained no evidence of follow-up after her November 2016 MRI. (Id.) The ALJ
thoroughly discussed objective observations in the record concerning Plaintiff’s physical
impairments. (Id.) The ALJ also discussed Plaintiff’s obesity and the impact it had on
weight bearing joints. (T. 62.) Lastly, the ALJ considered Plaintiff’s reported activities of
daily living. (Id.)
The ALJ’s RFC was consistent with the evidence outline herein including Dr.
Schwab’s opinion, subsequent medical evidence provided after his opinion, and
Plaintiff’s testimony. Ultimately, the ALJ found a more restrictive RFC than Dr.
Schwab’s opined limitations. See Lesanti v. Comm'r of Soc. Sec., 436 F. Supp. 3d 639,
649 (W.D.N.Y. 2020) (citing Baker v. Berryhill, No. 1:15-cv-00943-MAT, 2018 WL
1173782, at *4 (W.D.N.Y. Mar. 6, 2018) (“[R]emand is generally not warranted where
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the ALJ's RFC finding is more restrictive than the limitations set forth in the medical
opinions of record.”). In addition to Dr. Schwab’s “moderate” limitations in walking and
climbing, the ALJ determined Plaintiff could not kneel, squat, or perform overhead
reaching. (T. 57-58.) The ALJ further determined Plaintiff required the ability to change
positions from sitting or standing every 45 minutes. (T. 57.)
In sum, the ALJ relied on the record as a whole in formulating Plaintiff’s RFC,
including evidence provided after Dr. Schwab rendered his opinion. The ALJ’s RFC
accounted for any additional limitations supported by the record and was ultimately
more restrictive than Dr. Schwab’s opined limitations. Plaintiff failed to provide evidence
in the record establishing more restrictive limitations based on her knee surgery or
cervical impairment. Therefore, subsequent surgery and spinal impairment did not
render Dr. Schwab’s opinion impermissibly stale.
B.
Treating Source Opinion
Plaintiff argues the ALJ failed to provide “good reasons” in rejecting the opinion
of Christopher Ritter, M.D. regarding Plaintiff’s ability to only work three days a week.
(Dkt. No. 9 at 14-17.) Plaintiff argues Dr. Ritter’s opinion concerned the “nature and
severity of [Plaintiff’s] impairments(s)” under 20 C.F.R. § 404.1527(d)(2) and therefore
the ALJ was required to assess the opinion under the treating physician rule and
provide good reasons for rejecting the opinion. (Id.)
The opinion of a treating source will be given controlling weight if it “is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). When assigning less than “controlling weight” to a
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treating physician’s opinion, the ALJ must “explicitly consider” the four factors
announced in Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008). Estrella v. Berryhill, 925
F.3d 90, 95 (2d Cir. 2019) (internal quotation marks omitted). Those factors, referred to
as “the Burgess factors,” are “(1) the frequen[cy], length, nature, and extent of
treatment; (2) the amount of medical evidence supporting the opinion; (3) the
consistency of the opinion with the remaining medical evidence; and (4) whether the
physician is a specialist.” Estrella, 925 F.3d at 95-96 (citation omitted); 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). A reviewing court should remand for failure to consider
explicitly the Burgess factors unless a searching review of the record shows that the
ALJ has provided “good reasons” for its weight assessment. Id. at 96; see Guerra v.
Saul, 778 F. App'x 75, 77 (2d Cir. 2019) (“While the ALJ here did not always explicitly
consider the Burgess factors when assigning the treating physician’ opinions less than
controlling weight, we nonetheless conclude that the ALJ provided sufficient “good
reasons” for the weight assigned.”).
On May 6, 2014, Dr. Ritter filled out a work note concerning Plaintiff’s ability to
perform work and other activities. (T. 403.) Dr. Ritter noted he treated Plaintiff for her
left ankle impairment and checked the box indicating Plaintiff was “released to return to
work with no restrictions on 05/02/2014.” (Id.) He also wrote on the form Plaintiff “can
only work Mondays, Wednesdays, and Friday[s] until retirement.” (Id.) Plaintiff’s work
was performed at the medium exertional level. (T. 129-130.) The ALJ concluded Dr.
Ritter’s restriction to working only three days a week was “somewhat puzzling” and
appeared to be based on Plaintiff’s subjective requests. (T. 63.)
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Essentially, Dr. Ritter’s opinion goes to Plaintiff’s ability to perform work on a
“regular and continuing basis.” See 20 C.F.R. §§ 404.1545(b), (c) (an ALJ assesses a
plaintiff’s physical and mental limitations and restrictions and determines plaintiff’s RFC
for work activity on a regular and continuing basis); see SSR 96-8p (a regular and
continuing basis means eight hours a day, for five days a week, or an equivalent work
schedule).
As outlined by the ALJ, medical opinion evidence supported the determination
that although Plaintiff’s impairments imposed work related functional limitations, she
was still capable of performing a limited range of work on a sustained basis. The ALJ
relied on the medical opinion evidence in the record, numerous treatment notations,
objective medical imaging and Plaintiff’s testimony. Although Dr. Ritter opined Plaintiff
was unable to perform work on a regular and continuing basis, the ALJ’s RFC
determination was proper and supported by substantial evidence.
C.
Evidence Submitted to the AC
Plaintiff contends the AC erred as a matter of law in rejecting the new evidence
about a later time without providing a sufficient explanation. (Dkt. No. 13 at 12-21.) The
Second Circuit has expressly declined to rule on the issue of whether or not the AC is
required to provide express rationale in its decisions.
The plaintiff in Lesterhuis v. Colvin, 805 F.3d 83 (2d Cir. 2015), argued the AC
erred by failing to provide an explanation for why it disregarded treating source opinions
that were first submitted to the AC. 805 F.3d at 89. The Court stated:
because we hold that the ALJ's decision was not supported by substantial
evidence, we need not consider Lesterhuis's alternative argument that the
Appeals Council has an independent obligation to provide “good reasons”
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before declining to give weight to the new, material opinion of a treating
physician submitted only to the Appeals Council and not to the ALJ.
Id.
Regardless of whether the evidence was a medical source statement provided by
a treating source or other acceptable medical source, or if the evidence contained other
medical information such as treatment notations, the Second Circuit has declined to
state whether or not the AC is obligated to provide express rationale in making its
determinations. However, the Second Circuit has held that the ALJ’s decision, not the
AC decision, is the final decision of the Commissioner and a district court’s review is
based on the entire record, including any new evidence.
In Lesterhuis, the Court determined, “once evidence is added to the record, the
Appeals Council must then consider the entire record, including the new evidence, and
review a case if the administrative law judge's action, findings, or conclusion is contrary
to the weight of the evidence currently of record.” Lesterhuis, 805 F.3d at 87, citing 20
C.F.R. § 404.970(b). When the AC denies review in a case, the review focuses on the
ALJ's decision. Id. at 87; see 42 U.S.C. § 405(g) (“Any individual, after any final
decision of the Commissioner ..., may obtain a review of such decision by a civil
action....”).
A district court’s review is based on the entire administrative record, including
any new evidence submitted to the AC following the ALJ's decision. See Perez v.
Chater, 77 F.3d 41, 45 (2d Cir. 1996). Thus, as in this case, when the AC denies
review after considering new evidence, the court “simply review[s] the entire
administrative record, which includes the new evidence, and determine[s], as in every
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case, whether there is substantial evidence to support the decision of the
[Commissioner].” Perez, 77 F.3d at 46.
The Second Circuit has cautioned that medical evidence generated after an
ALJ’s decision cannot be “deemed irrelevant solely because of timing, [as] subsequent
evidence of the severity of a condition suggests that the condition may have been more
severe in the past than previously thought.” Suttles v. Colvin, 654 F. App'x 44, 47 (2d
Cir. 2016) (internal citations omitted). However, the Court has consistently held that
medical evidence generated after the ALJ’s decision must be both (1) relevant to the
plaintiff’s condition during the relevant period and (2) probative, and additionally must
create “a reasonable possibility that the new evidence would have influenced the
Commissioner to decide [plaintiff’s] application differently.” Evans v. Colvin, 649 F.
App'x 35, 38 (2d Cir. 2016) (citing Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004));
see Guerra v. Colvin, 618 F. App'x 23, 25 (2d Cir. 2015) (new medical records
submitted to the AC document symptoms after the ALJ’s decision date, do not
undermine the ALJ’s evaluation of plaintiff’s condition during the relevant time period,
and plaintiff failed to explain why certain evidence made 19 months after the ALJ’s
decision related to her disability status as of the date of the ALJ’s decision); see Perez,
77 F.3d at 47 (although medical evidence dated after the ALJ’s decision may support
plaintiff’s contention that she was unable to perform sedentary work, it did not indicate
that she was incapable of performing sedentary work during the relevant time period);
see 20 C.F.R. § 416.1470(a)(5), (b) (permitting review of an ALJ's decision based on
new evidence submitted to the AC only if, inter alia, the evidence “relates to the period
on or before the date of the [ALJ's] hearing decision”).
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Here, the new medical records do not undermine the ALJ’s evaluation of
Plaintiff’s condition during the relevant time period because the evidence was
cumulative. Medical evidence relevant to the period at issue did not show a reasonable
probability that it would have changed the outcome of the decision. See 20 C.F.R. §§
404.970, 416.1470; Rutkowski v. Astrue, 368 Fed. App’x. 226, 229 (2d Cir. 2010)
(evidence submitted to the Appeals Council did not “add so much as to make the ALJ’s
decision contrary to the weight of the evidence.”).
Instead, the additional records submitted to the AC were cumulative evidence
and showed already considered complaints of right knee pain, shoulder and cervical
pain, and a left ankle injury. (T. 60-61, 141-45, 148-150.) In particular, the additional
evidence consisted of treatment records regarding Plaintiff’s complaints of right knee
pain in July 2015 and August 2015. (Id.) Moreover, the ALJ considered an MRI which
showed an undersurface flap tear of the medical meniscus and grade 3 and 4 patellar
facet chondromalacia and that Plaintiff was referred to Dr. Wind. (T. 57, 61, 149.) In
addition, these records showed Plaintiff could perform light activities, like walking,
housework, or yard work without knee pain; she walked with a normal gait and had full
range of motion and strength. (T. 142, 147, 149.)
Similarly, Plaintiff submitted an October 20, 2016 treatment note from Dr. Karpie
showing that she reported no left knee pain at her six-week follow-up after a left knee
arthroscopy. (T. 76-77.) This record mirrored Plaintiff’s two-week post-surgical followup, which was considered by the ALJ, and showed that Plaintiff was doing well after her
surgery. (T. 76.)
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Plaintiff also did not show good cause for her failure to present the evidence
earlier. (Dkt. No. 9 at 17-20). Social Security Regulations provide that the Appeals
Council will only consider additional evidence under paragraph (a)(5) if the plaintiff
shows good cause for not informing the agency about or submitting the evidence. See
20 C.F.R. §§ 404.970(b); 416.1470(b). At the administrative hearing, the ALJ asked
Plaintiff’s attorney if she had adequate time to review and prepare for the hearing with
her client, to which she said, “yes.” (T. 111.) The attorney stated that the medical
evidence was complete. (T. 111.) After the hearing, the attorney submitted additional
medical evidence, which was entered into the record and considered by the ALJ. (T.
54, 658-663.)
Therefore, the evidence submitted to the AC was cumulative. A review of the
record as a whole, including evidence submitted to the AC, indicates the ALJ’s decision
was proper and supported by substantial evidence.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12)
is GRANTED; and it is further
ORDERED that Defendant’s unfavorable determination is AFFIRMED; and it is
further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated:
August 10, 2020
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