Jenkins v. Colvin

Filing 20

DECISION AND ORDER denying 10 Motion for Judgment on the Pleadings; granting 13 Motion for Judgment on the Pleadings. Plaintiffs application for judgment on the pleadings [#10] is denied, and Defendants cross-motion [#13] for judgment on the pleadings is granted. The action is dismissed. Signed by Hon. Charles J. Siragusa on 9/6/17. (KAP)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
LAURIE JENKINS,
Plaintiff

DECISION AND ORDER

-vs16-CV-6040 CJS
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________

APPEARANCES
For the Plaintiff:

Kenneth R. Hiller, Esq.
Timothy Hiller. Esq.
Law Offices of Kenneth Hiller
60000 North Bailey Avenue, Suite 1A
Amherst, New York 14226

For the Defendant:

Elizabeth Rothstein, Esq.
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Kathryn L. Smith, A.U.S.A.
Office of the United States Attorney
for the Western District of New York
100 State Street
Rochester, New York 14614

INTRODUCTION
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final
determination of the Commissioner of Social Security (“Commissioner” or “Defendant”),
which denied the application of Laurie Jenkins (“Plaintiff”) for Social Security Disability
Insurance Benefits. Now before the Court is Plaintiff’s motion (Docket No. [#10]) for
1

judgment on the pleadings and Defendant’s cross-motion [#13] for judgment on the
pleadings. Plaintiff’s application is denied, Defendant’s application is granted, and this
action is dismissed.
FACTUAL BACKGROUND
The reader is presumed to be familiar with the parties’ submissions, which
contain detailed recitations of the pertinent facts. The Court has reviewed the
administrative record [#8] and will reference it only as necessary to explain this Decision
and Order.
Plaintiff, born in 1959, claims to be disabled due to depression and migraine
headaches, beginning on October 20, 2011. Prior to the alleged onset date, Plaintiff
had earned her bachelor’s degree in Organizational Management (341) and had held
two executive-level jobs. Between approximately 2000 and 2005, Plaintiff worked as
the Executive Director of the Southeast Ecumenical Ministries (a “food pantry and
senior citizen transportation program”) in Rochester. (346). Between approximately
2005 and October 2011, Plaintiff held the title of vice-president for the Creative
Wellness Coalition, a mental-health services organization funded by Monroe County,
New York. (343-346). In that position, Plaintiff supervised two employees and
approximately fourteen volunteers. (344). When she was not working at those jobs,
Plaintiff also operated a “hotdog stand” food cart that she owned, on an “as needed”
basis for an auction company. (348-349, 354-356, 358).
In or about October 2011, Plaintiff was terminated from her job, which caused
her a great deal of anger and resentment. (371). Subsequently, Plaintiff maintains that
she resumed using alcohol as a coping mechanism. In that regard, Plaintiff had a
2

history of alcohol abuse, but had remained abstinent for 22 years. (135). The
termination of Plaintiff’s job in 2011 precipitated her return to abusing alcohol. (135)
(“She is holding onto a lot of anger towards her old job, which triggers her drinking.”).
The resumption of alcohol usage also reportedly exacerbated her long-standing
depression, which was otherwise sufficiently-controlled with medication to allow her to
work. (80). Plaintiff has been prescribed medication to reduce her “urge to drink
alcohol,” but does not take it. (327). In that regard, Plaintiff indicates that she believes
that she can drink without “abusing” alcohol, though she admits that she may be “in
denial” about this. (362-363).
In October 2013, while her claim was still pending at the administrative level,
Plaintiff began working full time as a janitor for a manufacturing corporation that owned
several office buildings. (352-353). Plaintiff was responsible for maintaining one of the
office buildings by herself, and also assisted other janitorial staff at various times with
particular projects, such as moving office furniture. (316, 369). Plaintiff indicated that
she enjoyed the job (363-364, 367, 370-371), which was far less stressful than her
previous executive-level positions. (371). However, Plaintiff indicated that she
sometimes missed work, due to having migraine headaches “once or twice a month.”
(366).1
At all relevant times, Plaintiff had a close relationship with her adult son, and she
also provided assistance to her elderly mother, by taking her shopping regularly. (368).
Plaintiff acknowledged that she had support from her family and at least one good

1
Several months later, Plaintiff indicated that she was missing three-to-four days of work per
months due to migraines, but there is no explanation for this alleged increase in frequency. (317).

3

friend. (246). Additionally, prior to 2012, Plaintiff had a live-in boyfriend for 18 years.
(365). After that relationship ended, Plaintiff began dating again, and by January 2015,
was engaged to be married. (178). Plaintiff also takes care of her two pet dogs. (365,
368). Plaintiff owns her own home and a rental property. (21, 315, 767).
The record contains three separate reports concerning Plaintiff’s mental
impairments and their effect on her ability to work. On October 2, 2012, Christine
Ransom, Ph.D. (“Ransom”) performed a one-time consultative psychological evaluation
at the Commissioner’s request. Plaintiff reportedly told Ransom that she had been
receiving treatment for depression since 1999. (687). However, Plaintiff reportedly
denied having any “drug and alcohol history.” (688). After examining Plaintiff, Ransom
offered the following opinion, in pertinent part:
This individual will have moderate difficulty following and understanding
simple directions and instructions, perform simple tasks independently,
maintain attention and concentration for simple tasks, maintain a simple
regular schedule, learn simple new tasks. She will have moderate to
marked difficulty performing complex tasks, relat[ing] adequately with
others and appropriately deal[ing] with stress. Areas of difficulty are
secondary to major depressive disorder currently moderate to marked,
anxiety disorder NOS currently moderate to marked.
(689-690).
Approximately two months later, on November 27, 2012, Plaintiff was examined
by Tara Russow, Ph.D. (“Russow”), in connection with vocational rehabilitation and
training. (785-789). Russow performed a “comprehensive evaluation of intellectual and
personality functioning,” using a variety of testing methods. (785). Whereas Plaintiff
reportedly did not disclose her alcohol problem to Ransom, she admitted to Russow

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that she had “a history of . . . alcohol dependence.” (785, 786). Russow, stated, in
pertinent part:
Results of the MCMI-III personality testing indicate that Ms. Jenkins is not
experiencing severe or acute difficulties of clinical nature at this time,
which may reflect the efficacy of her current treatment regimen. There
were no significant score elevations seen on the scales measuring
somatization, mania, drug dependence, trauma, major depression,
hallucinations, delusions, paranoia, or any form of psychosis. There were
mild elevations in her anxiety, dysthymia, and alcohol dependence scores,
which is not unexpected given her situation and history.
(787). Russow indicated that IQ testing showed that Plaintiff is in the average range of
intelligence. (787). Russow continued:
Ms. Jenkins demonstrated excellent planning ability, social awareness,
pattern recognition, judgment, knowledge of social convention, common
sense, and evaluation of consequences even if she chooses to do
otherwise. Within the average ranges are her receptive & expressive
language abilities, recall of words, logic & abstract reasoning, fund of
knowledge, long-term memory, and crystallized intelligence. Weaknesses
are seen in her attention, concentration, immediate auditory memory,
visualization, auditory perception & recall, sequencing ability, alertness to
visual detail, ability to differentiate important from unimportant information,
visual processing speed, motor speed, coordination, cognitive adaptation,
learning flexibility, and visual perception & response to abstract designs &
symbols. Deficits are apparent in her other mathematical knowledge &
calculations, numerical reasoning, abstract figure analysis &
reconstruction abilities, visual-motor integration, and spatial relations
capacity.
(788). Russow opined that Plaintiff’s “relapse into alcohol dependence [might] well
undermine her efforts and those of her healthcare providers” to treat her depression.
(788). In sum, Russow concluded that Plaintiff was capable of working, but indicated
that she could not help Plaintiff determine which type of work would be most suitable for
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her unless and until she “attain[ed] sobriety.” (789).
And finally, on November 14, 2013, Diane Morse, M.D. (“Morse”) completed a
“Mental Residual Functional Capacity Questionnaire.” (800-804). Unlike Ransom and
Russow, Morse was a treating physician. However, at the time she completed the
report, Ransom had only met with Plaintiff on two or perhaps three occasions, as
Plaintiff had just become a patient in or about May of 2013. Morse, an internal
medicine physician, had agreed to write prescriptions for Plaintiff’s mental health
medications, based upon the recommendations of her colleague, Dr. Michael Privitera,
M.D. (“Privitera”), a psychiatrist. (891) (“Patient is referred by Diane Morse MD who is
willing to be ongoing prescriber after these consultations.”). In any event, on November
14, 2013, Morse completed the aforementioned report, and indicated that Plaintiff was
unable to work, due to “depression.” (800-804). Morse opined that Plaintiff was taking
medication but had “not improved yet.” (800). Morse indicated, for example, that
Plaintiff would have very significant restrictions in her ability to remember work
procedures, understand and remember short and simple instructions, carry out simple
instructions, and perform at a consistent pace. (802). Morse further stated that Plaintiff
would be “off task” at work at least 20% of the time, and that her condition would
worsen if she went to work, due to “more stress.” (804).
PROCEDURAL BACKGROUND
On July 5, 2012, Plaintiff applied for disability benefits, claiming to be disabled
due to major depression, panic attacks and severe migraines. (374). On October 17,
2012, the Commissioner denied Plaintiff’s application initially. On November 8, 2013, a
hearing was conducted before an Administrative Law Judge (“ALJ”). The hearing was
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continued on July 10, 2014. (307-372). On July 22, 2014, the ALJ issued his Decision,
finding that Plaintiff was not disabled at any time between the alleged date of onset
(October 20, 2011) and the date of his decision. Applying the familiar five-step
sequential analysis used to evaluate social security disability claims, the ALJ found, at
step one, that Plaintiff had not engaged in substantial gainful activity between October
20, 2011, and October 1, 2013, but that she engaged in substantial gainful activity after
October 1, 2013. (294). At step two, the ALJ found that Plaintiff had two severe
impairments: migraine headaches and major depressive disorder. (294). The ALJ
further found that Plaintiff had the non-severe impairment of “substance abuse” (295),
which did not prevent her from engaging in substantial gainful activity. (300). At step
three, the ALJ found that Plaintiff’s impairments did not meet-or-medically-equal a listed
impairment. (295-296).
Before reaching step four of the sequential analysis, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”) “to perform a full range of work at all
exertional levels . . . “requiring a ‘specific vocational level’ [or ‘SVP’] level of 5 or less.”
(296-300). In explaining that determination, the ALJ reviewed the medical evidence,
including the reports by Ransom, Russow and Morse. (296-300).
The ALJ gave “some weight” to Ransom’s opinion, finding that it was “generally
consistent with the evidence of record.” (298). However, the ALJ stated that Plaintiff’s
“limitations were not as great as indicated by Dr. Ransom,” as shown by the fact that
Plaintiff started a job relatively soon after Ransom’s evaluation. (298). Specifically,
Plaintiff worked as a patient-transport dispatcher at a hospital, between April 2013

7

through June 2013. (339, 351).2 Plaintiff quit the dispatcher’s job, apparently because it
was too stressful,3 but indicated that she would have liked to have continued working as
a patient transporter if the hospital had allowed her to do so. (351-352). The ALJ
indicated that this work attempt did not amount to substantial gainful activity, but
nevertheless showed that Plaintiff’s non-exertional impairments were not as severe as
Ransom had indicated. (298, 299).
The ALJ gave “little weight” to Morse’s opinion, stating, in pertinent part, that
Morse “indicated that the claimant’s condition would deteriorate if the claimant worked.
Yet, at the time the doctor completed the questionnaire, the claimant was working at the
level of substantial gainful activity.” (299). In that regard, the ALJ was referring to the
fact that Plaintiff had begun working as a janitor at least one month prior to Morse’s
report, in October 2013, and was still working in that position as of July 2014.
And finally, the ALJ gave “significant weight” to Russow’s opinion, finding that it
was “generally consistent with the evidence of record.” (299). The ALJ stated, “in sum,”
that his RFC finding was supported by the medical evidence and “by the evidence of
the claimant’s own activities.” (300).
At step four of the sequential analysis, the ALJ found that Plaintiff was capable
of performing her past relevant work as a janitor/commercial cleaner. (300).

2

See, (350-351) (“Q. And what were you doing there? A. Transporting patients and the
dispatching. I did okay with transporting the patients, but the dispatching was really difficult. It was, you
had all the transporters [(i.e., employees who transported patients within the hospital)], you had to
coordinate all their transporting trips on the computer to go out to their pagers. So there was multiple,
there were sometimes up to 20 transporters that you were sending the calls out to.”).
3
Plaintiff stated that the job was “too much,” and that she would cry sometimes, but gave no
specific explanation for why she quit the job.

8

Consequently, the ALJ found that Plaintiff was not disabled, without proceeding to step
five of the sequential analysis.
Plaintiff appealed to the Appeals Council, and submitted additional medical
records, covering the period November 13, 2014 to February 13, 2015. (2, 286). The
records indicated that as of November 2014, Plaintiff was no longer working, and had
resumed drinking alcohol heavily, which triggered her depression. (80). Plaintiff
attended group therapy sessions for alcohol abuse. During one such session, Plaintiff
indicated that “no one would hire her,” but admitted that she was not actually attempting
to obtain a job. (154). Plaintiff also began attending a stress-management therapy
group. (166). On January 5, 2015, Plaintiff informed her counseling peer group that she
had become engaged to be married. (178).
On December 3, 2015, the Appeals Council declined to review the ALJ’s
determination. The Appeals Council found that the additional medical records that
Plaintiff had submitted did not pertain to the period covered by the ALJ’s decision, but
rather, pertained to “a later time.” (2).
On January 26, 2016, Plaintiff commenced this action. On December 13, 2016,
Plaintiff filed the subject motion [#10] for judgment on the pleadings, and on March 30,
2017, Defendant filed the subject cross-motion [#13] for judgment on the pleadings. On
August 17, 2017, counsel for the parties appeared by telephone for oral argument.
STANDARDS OF LAW
42 U.S.C. § 405(g) states, in relevant part, that “[t]he findings of the
Commissioner of Social security as to any fact, if supported by substantial evidence,
shall be conclusive.” The issue to be determined by this Court is whether the
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Commissioner’s conclusions “are supported by substantial evidence in the record as a
whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496,
501 (2d Cir. 1998). Substantial evidence is defined as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id.
DISCUSSION
Plaintiff contends that this action must be remanded for two reasons: First,
because the ALJ’s RFC determination was erroneous; and second, because the
medical evidence submitted to the Appeals Council, relating to the period following the
ALJ’s decision, “undermines” the ALJ’s analysis of Dr. Morris’s report dated November
14, 2013.4 The Court finds, however, that neither argument has merit.
The RFC Determination Is Supported By Substantial Evidence
Plaintiff summarizes her first argument as being that, “[r]emand is necessary
because the ALJ’s mental RFC assessment stands in conflict with every medical
opinion of record, and [because] the ALJ proffered virtually no explanation as to how he
determined that [Plaintiff’s] only limitation would be that she needed a job with an SVP
level of 5 or less.”5 According to Plaintiff, the issue is whether the ALJ’s RFC
determination is “supported by substantial evidence.”6

4

During oral argument, Plaintiff also contended that the ALJ had not properly evaluated Plaintiff’s
alcohol-abuse impairment. However, the Court declines to consider that claim.
5

Pl. Memo of Law [#10-1] at p. 1.

6

Pl. Memo of Law [#10-1] at p. 19.

10

Preliminarily, Plaintiff’s contention that the RFC determination is “in conflict with
every medical opinion of record” is incorrect.7 Most notably, the RFC determination is
not in conflict with the opinion of Dr. Russow, which is the only one of the three
psychological reports to which the ALJ gave “significant weight.” Russow, whose
examination of Plaintiff was evidently more comprehensive than any conducted by
Ransom or Morse, found that Plaintiff was only “mildly” anxious and dysthymic, and not
significantly impaired by depressive symptoms. (787). Indeed, the clear issue raised by
Russow’s report was not whether Plaintiff could work, but which job would be most
suitable for her. Plaintiff contends that Russow’s opinion neither “conflicts” with
Ransom’s opinion nor “support[s] a finding that Ms. Jenkins was capable of work,”8 but
the Court disagrees on both points.
Plaintiff nevertheless insists that remand is required because it is “not clear”
what weight the ALJ gave to Ransom’s report.9 According to Plaintiff, the ALJ’s
treatment of Ransom’s report was “inconsistent,” because he purportedly gave the
opinion only “some weight,” but also claimed that the report supported his RFC finding.
Plaintiff further claims that the RFC finding actually “differ[s] markedly from Dr.

7

Plaintiff’s memorandum of law asserts that the ALJ referred to Ransom’s opinion, but otherwise
“faile[d] to list any other medical opinion relating to Ms. Jenkins’ mental health which supported his
assessment.” Plaintiff cited page 300 of the record for that proposition, and upon checking that cite, it
appears that she was referring to the following statement by the ALJ: “In sum, the above [RFC]
assessment is supported by the opinions of Dr. Huffer, Dr. Toor, and Dr. Ransom.” (300). Of those three,
only Ransom opined concerning Plaintiff’s mental impairments. However, insofar as that statement by the
ALJ did not also include a reference to Russow, it was apparently a typo or oversight, since the ALJ
expresssly gave more weight to Russow’s opinion than to Ransom’s. Consequently, Plaintiff’s attempt to
argue that the ALJ based his mental RFC determination solely on Ransom’s report is unavailing.
8

Pl. Memo of Law [#10-1] at pp. 22-23.

9

Pl. Memo of Law [#10-1] at p. 20.

11

Ransom’s opinion.”10
It is questionable whether the ALJ should have given much weight at all to
Ransom’s report, since it was based upon inaccurate information provided by Plaintiff.
To be clear, Ransom’s report indicates that Plaintiff denied any drug or alcohol history
(688), which would have been plainly untrue, since Plaintiff has a history of both alcohol
and drug abuse, and at the time of Ransom’s evaluation she was actively abusing
alcohol and using marijuana. (659, 699, 700).11 Consequently, Plaintiff prevented
Ransom from performing an accurate evaluation. Nor is Ransom’s report particularly
consistent with the rest of the record, despite what the ALJ indicated. For example,
Ransom found that Plaintiff’s attention, concentration and memory were “moderately
impaired,” but treatment notes from the same period routinely stated that Plaintiff’s
attention, concentration and memory were “good.” (654, 669, 670, 700). Similarly,
Ransom reported that Plaintiff did “not socialize with anyone but her son and her
mother” (688), but treatment records routinely indicated that Plaintiff had “good
interpersonal relationships” (767, 654) and socialized with friends. (246, 668, 670, 696,
703, 713, 720, 722, 724, 905).
In any event, Ransom’s report did not indicate that Plaintiff was precluded from
working, as Plaintiff seems to suggest. Rather it merely opined, in pertinent part, that
Plaintiff would have moderate difficulty with simple tasks, and moderate-to-marked
difficult with complex tasks, both of which predictions were dis-proven when Plaintiff
10

Pl. Memo of Law [#10-1] at p. 20.

11

Ransom’s report further suggests that Plaintiff referred to having “lost 30 pounds in the past one
year” as evidence of depression. (687). However, the record indicates that Plaintiff intentionally lost such
weight using the Weight Watchers program. (662, 700).

12

subsequently performed her janitorial job – which required her to clean an entire office
building independently – at the level of substantial gainful activity, with no apparent
difficulty. The ALJ indicated that he gave some weight to Ransom’s opinion concerning
Plaintiff’s condition at the time, but found that it was partially dis-proven by Plaintiff’s
subsequent stint working at the hospital.
Plaintiff nevertheless insists that remand is required because the ALJ’s decision
is incapable of meaningful review because it fails to explain how the ALJ concluded that
Plaintiff was capable of performing jobs with “an SVP of 5 or less.”12 While the Court
agrees that the ALJ could have done a better job of explaining his reasoning, it does
not agree that the decision precludes meaningful review. Rather, it appears that the
ALJ chose that RFC because Plaintiff was actually working within that SVP range, at
the level of substantial gainful activity, despite her alleged impairments. In that regard,
the vocational expert (“VE”) testified that Plaintiff’s prior executive-level jobs were both
considered “highly skilled” with SVPs of 8, while her janitorial job had an SVP of 2.
(329-330). The ALJ then asked the VE a hypothetical question, namely, whether a
person of Plaintiff’s age, education level and work experience, with no physical
limitations, but with mental limitations restricting her to jobs with an SVP of 5 or less,
could perform any of Plaintiff’s past work, including the janitorial job that she was
actually performing at that time. (330-331). The VE responded that the hypothetical
individual could perform Plaintiff’s janitorial job. (331).
It further appears that the ALJ chose the SVP of 5 or less because he found

12

Pl. Memo of Law [#10-1] at p. 23.

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Plaintiff’s statements about her mental impairments to be partially credible. (297).
Thus, the ALJ agreed that Plaintiff could not perform her past “highly skilled” work (SVP
8), but found that she could still perform work that was less skilled, and was in fact
doing so. The ALJ explained the RFC finding, by discussing why the medical evidence
and Plaintiff’s activities of daily living, including the fact that she was engaged in
substantial gainful activity, were not entirely consistent with her complaints. (296-300).
The RFC determination is supported by substantial evidence.
The Evidence Submitted to the Appeals Council Does not Undermine The
ALJ’s Treatment of Dr. Morse’s Report
As previously mentioned, on November 14, 2013, Dr. Morse completed a Mental
Residual Functional Capacity Questionnaire (800) that strongly supported Plaintiff’s
claim to disabled due to depression. The report indicated, for example, that Plaintiff
had “severe, persistent depression [that was] unresponsive to medications,” which
would cause her to be off-task at work approximately 20% of the time and to miss more
than four days of work per month. (803-804). It is undisputed that if a claimant actually
had such limitations, she would be disabled. However, the ALJ gave little weight to this
report, stating:
I give little weight to the opinion of Dr. Morse. The doctor indicated that
the claimant’s condition would deteriorate if the claimant worked. Yet, at
the time the doctor completed the questionnaire, the claimant was working
at the level of substantial gainful activity.
(299). In that regard, the ALJ correctly observed that at the very time Dr. Morse was
writing her opinion, Plaintiff was happily employed full-time as a janitor. Indeed, on
November 8, 2013, just five days before Dr. Morse completed her report, Plaintiff
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appeared before the ALJ and testified that she had been working at the cleaner’s job
for approximately one month, and that the job was “great” and not stressful. (339-340,
352-353, 367-371). When the hearing resumed in July 2014, Plaintiff was still working
at the same job. Plaintiff expressed concern that she was using up too many sick days
due to her migraine headaches, but otherwise was not having difficulty performing the
job.
On July 22, 2014, the ALJ issued his decision, finding that Plaintiff was not
disabled at any time between that date and the alleged onset date, October 20, 2011.
Subsequently, Plaintiff submitted to the Appeals Council medical records pertaining to
the period November 13, 2014 through February 13, 2015. (2). In other words, the
records pertained to the period beginning approximately four months after the ALJ
issued his decision. In any event, the records indicated, inter alia, that by midNovember 2014, Plaintiff was no longer working at her janitor’s position. Plaintiff
contends that such evidence is “new and material,” and “undermines” the ALJ’s finding
concerning the weight to be afforded to Dr. Morse’s report. In particular, Plaintiff
contends that Morse’s report accurately “predicted” that she would “detonate” if she
returned to work. Plaintiff notes that the Appeals Council declined to consider the new
evidence, after finding that it “relate[d] to a later time period.” Plaintiff suggests that the
Appeals Council was wrong in doing so, though she does not really explain why, and
urges the Court to rely upon this evidence to reverse the Commissioner’s decision.
However, the Court disagrees. The general applicable legal principle is clear:
New evidence submitted to the Appeals Council following the ALJ's
decision becomes part of the administrative record for judicial review
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when the Appeals Council denies review of the ALJ's decision. The only
limitations stated in 20 C.F.R. §§ 404.970(b) and 416.1470(b) are that the
evidence must be new and material and that it must relate to the period
on or before the ALJ's decision.
Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (citations and internal quotation
marks omitted).
Importantly, new evidence post-dating the Commissioner's decision is not
necessarily irrelevant. Some information, especially medical diagnoses,
that arose after the decision, may shed essential new light on the
claimant's alleged condition at the time of the ALJ's decision. Such
information may be “material” within the meaning of the Act.
Allen-Porter v. Astrue, No. 10 Civ. 9615(SAS), 2011 WL 6179457 at *6 (S.D.N.Y. Dec.
9, 2011) (footnotes omitted). However, “new evidence indicating only that the plaintiff's
condition has worsened since the ALJ's decision does not meet the materiality
requirement.” Felix v. Astrue, No. 11–CV–3697 (KAM), 2012 WL 3043203 at *12
(E.D.N.Y. Jul. 24, 2012) (citations omitted).
Here, the new evidence does not relate to the period on or before the ALJ’s
decision, because it is dated after the decision and does not refer to Plaintiff’s condition
prior to issuance of the decision. Rather, it relates to a period, beginning more than
three months after the ALJ’s decision, during which Plaintiff’s condition allegedly
worsened. The focus of the evidence (treatment records) is on Plaintiff’s worsening
alcohol abuse. (See, e.g., 33). For example, whereas Plaintiff had previously admitted
to using alcohol sporadically, on December 1, 2014, she reportedly indicated that she
was becoming intoxicated on alcohol “every other day,” and she “assess[ed] her
primary mood problem to be related to alcohol use.” (80). When not drinking, her level
16

of depression, on a scale of zero-to-ten, with zero being no depression and 10 being
the worst depression, was “near zero.” (80). Accordingly, the Appeals Council did not
err by declining to consider the evidence. (2).
Nor does the Court find, in any event, that the evidence “undermines” the ALJ’s
treatment of Dr. Morse’s opinion. The ALJ was absolutely correct in observing that Dr.
Morse’s report was inconsistent with the reality of the situation -- that Plaintiff was
gainfully and even happily employed -- at the time it was written. Significantly, Dr.
Morse admitted as much in her office notes written on November 18, 2013, just four
days after she wrote the report upon which Plaintiff relies. Specifically, on November
18, 2013, Dr. Morse saw Plaintiff for the first time since their last office visit on August
26, 2013. In August 2013, Plaintiff had been complaining that her medications were no
longer helping her depression, and Dr. Morse, who had only just begun treating Plaintiff,
along with Dr. Privitera, were attempting to adjust the types and dosages of her
medications, without success. (873-899). Consequently, when Morse wrote her report
on November 14, 2013, she had not seen Plaintiff for several months, and was under
the impression that Plaintiff’s condition remained unchanged. For that matter, when
Morse wrote the report she was also obviously unaware that Plaintiff had started a fulltime job a month earlier. In light of these facts, it is completely understandable why
Morse expressed the opinions in her report.
However, on November 18, 2013, Morse examined Plaintiff again and noted that
she had made a remarkable “turnaround” on the newly-adjusted medications. (900901). Indeed, Morse reported that Plaintiff “[f]eels things have turned around. [She is
s]table on current regimen[ and d]oes not feel a need to return to [the] psychiatrist.”
17

(900). Morse further noted that Plaintiff was neither nervous nor anxious, and had a
normal mood and affect. (900). Morse also reported that Plaintiff was employed and
“get[ting] a lot of exercise.” (900). In sum, Morse’s own office notes support the ALJ’s
finding that Morse’s prior report was entitled to little weight.
CONCLUSION
Plaintiff’s application for judgment on the pleadings [#10] is denied, and
Defendant’s cross-motion [#13] for judgment on the pleadings is granted. The action is
dismissed.
So Ordered.
Dated: Rochester, New York
September 6, 2017

ENTER:

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

18