Plante v. Colvin
Filing
19
ORDER granting 10 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings. Signed by Hon. Jonathan W. Feldman on 12/18/2017. (BJJ)-CLERK TO FOLLOW UP- Clerk to close case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
JOSEPH L. PLANTE,
Plaintiff,
DECISION & ORDER
16-CV-6658
v.
NANCY A. BERRYHILL,
Defendant.
_______________________________
Preliminary Statement
Plaintiff Joseph Luke Plante (“plaintiff”) brings this action
pursuant to Title XVI of the Social Security Act seeking review of
the final decision of the Commissioner of Social Security (the
“Commissioner”) denying his application for disability insurance
benefits. See Complaint (Docket # 1). Presently before the Court
are competing motions for judgment on the pleadings. See Docket ##
10, 16. For the reasons set forth on the record and briefly
summarized below, plaintiff’s motion for judgment on the pleadings
(Docket # 10) is granted only insofar as the case is remanded for
further
proceedings
consistent
with
this
opinion.
The
Commissioner’s motion for judgment on the pleadings (Docket # 16)
is denied.
1
Discussion 1
Submission of New and Material Evidence:
“Pursuant to 20
C.F.R. § 416.1470(b), the Appeals Council must consider additional
evidence that a claimant submits after the ALJ's decision if it is
new, material, and relates to the period on or before the ALJ's
decision.”
Hollinsworth v. Colvin, No. 15-CV-543-FPG, 2016 WL
5844298, at *3 (W.D.N.Y. Oct. 6, 2016).
Where “the additional
evidence undermines the ALJ's decision, such that it is no longer
supported by substantial evidence, then the case should be reversed
and remanded.”
Webster v. Colvin, 215 F. Supp. 3d 237, 244
(W.D.N.Y. 2016).
Plaintiff contends first that the new and material evidence
of plaintiff’s mental health (Administrative Record, Docket # 8
(“AR”), at 45-55, 73-83) that the Appeals Council (the “AC”)
accepted
into
the
record
contradicted
the
Administrative
Law
Judge’s (the “ALJ”) finding at Step Two that plaintiff’s mental
health conditions were not severe.
Second, plaintiff claims that
the AC improperly rejected other new and material evidence solely
because the evidence was dated after the ALJ’s decision.
I agree with plaintiff.
The AC erred in summarily rejecting
the August 15, 2015 and March 8, 2016 treating physician records
1
The Court assumes familiarity with plaintiff’s medical history, the ALJ’s
underlying decision, and the standard of review.
2
and opinions of Dr. Koretz based on the fact that they were “about
a later time.”
In what seems to be “boilerplate” language devoid
of any substantive discussion, the AC concluded that this “new
information is about a later time . . . [and t]herefore, it does
not affect the decision about whether you were disabled beginning
on or before April 23, 2015.”
AR at 2.
“The Appeals Council must accept the evidence so long as it
is new, material, and relates to the period on or before the date
of the ALJ’s decision.”
Hightower v. Colvin, No. 12-cv-6475, 2013
WL 3784155, at *3 (W.D.N.Y. July 18, 2013).
The medical opinions
that the AC refused to consider here are clearly new and material.
Based on my review of the record, I also find that these records
quite plausibly pertain to treatment during the relevant time
period.
“It
is
well-established
that
‘medical
evidence
generated
after an ALJ's decision cannot be deemed irrelevant solely because
of timing.’” Siracuse v. Colvin, No. 14-CV-6681P, 2016 WL 1054758,
at *7 (W.D.N.Y. Mar. 17, 2016) (quoting Newbury v. Astrue, 321 F.
App'x 16, *2, n.2 (2d Cir. 2009)). “Additional evidence may relate
to the relevant time period even if it concerns events after the
ALJ’s
decision,
provided
the
evidence
pertains
to
condition previously complained of by the plaintiff.”
3
the
same
Hightower,
2013 WL 3784155, at *3.
In Webster v. Colvin, 215 F. Supp. 3d 237 (W.D.N.Y. 2016),
Judge Geraci examined whether the AC’s “categorical refusal to
consider new and material evidence solely because it was created
after the ALJ’s decision” was reversible error.
Id. at 242.
There, the court acknowledged that the new evidence of plaintiff’s
back condition could demonstrate that the condition worsened, or
it could clarify a pre-hearing disability and suggest that the
condition during the relevant time period was worse than previously
thought.
Id. at 243.
The court ultimately determined that it
could not “assess whether the new evidence relate[d] to the period
on or before the ALJ’s decision,” but that the AC’s “cursory,
formulaic rejection of the evidence simply because it was generated
after the ALJ’s decision, without any legal or factual reasoning,
is insufficient.”
Id.
Similarly, here, the AC appears to have summarily rejected
Dr. Koretz’s opinions simply because they were “about a later
time,” without analyzing whether the substance of the opinions was
related to plaintiff’s pre-hearing medical deficits.
See AR at 2.
The Court cannot determine whether these opinions, like those in
Webster, represent a clarification of plaintiff’s condition during
the relevant time period.
This was not harmless error.
was plaintiff’s treating doctor.
Dr. Koretz
Indeed, had the AC accepted Dr.
4
Koretz’s opinions, they would undermine the ALJ’s decision.
Dr.
Koretz opined first that plaintiff could walk and stand for 1-2
hours and sit for 2-4 hours.
AR at 77.
Less than a year later,
Dr. Koretz opined that plaintiff could only walk, stand, and sit
for 1-2 hours.
AR at 52.
These opinions stand in stark contrast
to the assigned RFC that plaintiff could work full-time and would
need only to change position every 20 minutes.
AR at 101.
Under
Dr. Koretz’s most restrictive opinion, plaintiff would not be able
to – as the RFC suggests – “change position every 20 minutes,
sitting
original
or
standing
position.”
for
Id.
two
minutes
before
Consequently,
returning
this
matter
to
his
must
be
remanded to the Commissioner for appropriate consideration of this
new evidence.
In addition to considering the new evidence generated by
plaintiff’s treating physician, on remand the ALJ should also
specifically consider and evaluate the weight that should be
assigned to the opinion of Dr. Eurenius.
Plaintiff asserts that
the ALJ’s failure to assign any specific weight to Dr. Eurenius’s
opinion that plaintiff could stand and walk for no more than four
hours each and could sit for more than four hours (AR at 104) was
error.
As Judge Wolford recently explained:
5
Remand is required when an ALJ fails to adequately
evaluate the weight of a medical opinion in light of the
factors set forth in 20 C.F.R. § 404.1527(c). See, e.g.,
Evans v. Colvin, 649 Fed. Appx. 35, 39, 2016 WL 2909358,
at *3 (2d Cir.2016); Lesterhuis v. Colvin, 805 F.3d 83,
88 (2d Cir. 2015). “Such an error ... requires remand to
the ALJ for consideration of the improperly excluded
evidence, at least where the unconsidered evidence is
significantly more favorable to the claimant than the
evidence considered.” Zabala v. Astrue, 595 F.3d 402,
409 (2d Cir.2010); see, e.g., Snell v. Apfel, 177 F.3d
128, 134 (2d Cir.1999).
Barrett v. Colvin, 211 F. Supp. 3d 567, 581 (W.D.N.Y. 2016)
(finding failure to assign weight to opinions of non-treating
sources error).
It is true that an ALJ’s failure to assign weight to a
specific opinion may be harmless error where it is clear the ALJ’s
decision reflects the medical opinion.
Swain v. Colvin, No. 14-
cv-869, 2017 WL 2472224, at *3 (W.D.N.Y. June 8, 2017).
it
is
not
at
all
Eurenius’s opinion.
clear
that
the
RFC
actually
But here,
reflects
Dr.
Dr. Eurenisus’s opinion may support some
iteration of the assigned RFC, namely, that plaintiff would need
to
sit
for
20
minutes
and
then
stand
for
a
few
minutes.
Nevertheless, the opinion of Dr. Eurenius is more restrictive than
the RFC assigned and thus the ALJ must have rejected at least part
of
the
opinion.
As
a
result,
on
remand,
the
ALJ
should
specifically address Dr. Eurenius’s opinion and assign it some
level of weight with an appropriate explanation.
6
Conclusion
For the above reasons, plaintiff’s motion for judgment on the
pleadings (Docket # 10) is granted insofar as this matter is
remanded back to the Commissioner for further proceedings.
The
Commissioner’s motion for judgment on the pleadings (Docket # 16)
is denied.
/s/Jonathan W. Feldman____
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated:
December 18, 2017
Rochester, New York
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?