Torres v. Berryhill

Filing 15

DECISION AND ORDER denying 12 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings. Plaintiffs complaint is dismissed in its entirety with prejudice. The Clerk of the Court is directed to close this case. Signed by Hon. Michael A. Telesca on 4/12/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JESSICA TORRES,
Plaintiff,

6:17-cv-06281-MAT
DECISION AND ORDER

-vsNANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.

INTRODUCTION
Represented by counsel, Jessica Torres (“Plaintiff”) has brought

this action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Acting Commissioner
of Social Security (“Defendant” or “the Commissioner”) denying her
application for supplemental security income (“SSI”).

This Court has

jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently
before the Court are the parties’ competing motions for judgment on the
pleadings
Procedure.

pursuant

to

Rule 12(c)

of

the

Federal

Rules

of

Civil

For the reasons set forth below, Plaintiff’s motion is

denied and Defendant’s motion is granted.
II.

PROCEDURAL BACKGROUND
On June 14, 2013, Plaintiff protectively filed an application for

SSI, alleging disability beginning March 12, 2010 due to mental health
issues. Administrative Transcript (“T.”) 81.

Plaintiff’s application

was initially denied and she timely requested a hearing, which was held

before administrative law judge (“ALJ”) Connor O’Brien on October 24,
2015.

T. 30-80.
On September 25, 2015, the ALJ issued an unfavorable decision.

T. 11-29.
and

Plaintiff timely requested review by the Appeals Council,

submitted

consideration.

additional

evidence

for

the

Appeals’

Council’s

Plaintiff’s request for review was denied by the

Appeals Council on March 9, 2017, making the ALJ’s decision the final
decision of the Commissioner.

T. 1-7. Plaintiff then timely commenced

this action.
III. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation promulgated
by the Commissioner for adjudicating disability claims. See 20 C.F.R.
§ 404.1520(a). At step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from June 14, 2013, the date
of her application. T. 16.
At step two, the ALJ determined that Plaintiff had the severe
impairments of depressive disorder, anxiety disorder, bipolar disorder,
degenerative

disc

disease

of

the

lumbar

spine,

and

left

knee

impairment, and the non-severe impairment history of cocaine abuse.
Id. At step three, the ALJ considered Plaintiff’s impairments and found
that, singly or in combination, they did not meet or medically equal
the severity of a listed impairment.

T. 17.

In particular, the ALJ

considered sections 1.00 and 12.00 in reaching this determination.
T. 17-18.

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Prior

to

proceeding

to

step

four,

the

ALJ

determined

that

Plaintiff had the residual functional capacity (“RFC”) to perform light
work

as

defined

in

20

C.F.R.

§

416.967(b),

with

the

following

additional limitations: can occasionally stoop, crouch, climb, kneel,
crawl, and balance on narrow, slippery, or moving surfaces; can adjust
to

occasional

changes

in

the

work

setting;

can

perform

simple,

unskilled work; can occasionally interact with the public, but cannot
perform teamwork; can work to meet daily goals, but cannot maintain an
hourly, machine-driven, assembly-line production rate; requires up to
three additional, short, less-than-5-minute, unscheduled breaks beyond
the normally scheduled breaks.

T. 19.

At step four, the ALJ determined that Plaintiff was capable of
performing her past relevant work as a mail clerk.

T. 24.

In the

alternative, at step five, the ALJ relied on the testimony of a
vocational expert to find that, taking into account Plaintiff’s age,
education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform,
including the representative occupations of housekeeping cleaner and
office helper. T. 25-26. The ALJ accordingly found that Plaintiff was
not disabled as defined in the Act.
IV.

T. 26.

DISCUSSION
A.

Scope of Review

When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such findings

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are supported by “substantial evidence” in the record. See 42 U.S.C.
§ 405(g) (the Commissioner’s findings “as to any fact, if supported by
substantial evidence, shall be conclusive”). Although the reviewing
court must scrutinize the whole record and examine evidence that
supports or detracts from both sides, Tejada v. Apfel, 167 F.3d 770,
774 (2d Cir. 1998) (citation omitted), “[i]f there is substantial
evidence to support the [Commissioner’s] determination, it must be
upheld.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “The
deferential standard of review for substantial evidence does not apply
to the Commissioner’s conclusions of law.”

Byam v. Barnhart, 336 F.3d

172, 179 (2d Cir. 2003).
In this case, Plaintiff’s sole argument is that the Appeals
Council

failed

to

properly

evaluate

additional

medical

records

submitted to it by Plaintiff, thereby resulting in a finding not
supported by substantial evidence. For the reasons discussed below, the
Court finds this argument without merit.
B.

Consideration of Evidence Submitted to the Appeals Council

In January and February of 2016, Plaintiff submitted additional
medical records to the Appeals Council.

These records included:

(1) treatment records from the Anthony Jordan Health Center from May 1,
2015 to August 12, 2015, related to Plaintiff’s a left knee meniscus
tear (T. 600-608); (2) a Monroe County Department of Human Services
Psychological Assessment for Determination of Employability completed
by

licensed

clinical

August 26, 2015 (T.

social

worker

(“LCSW”)

Rebecca

O’Neill

on

610-613); (3) treatment records from Dr. Irving

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Oh of University Orthopedic Associates from July 22, 2015 to September
9, 2015 related to Plaintiff’s left knee meniscus tear (T. 615-650);
(4) treatment records from Genesee Mental Health from January 27, 2015
to

September 24,

2015

(T.

652-651);

and

(5)

records related

to

Plaintiff’s knee from the Anthony Jordan Health Center dated November
4, 2015 (T. 8).
In its denial of Plaintiff’s request for review, the Appeals
Council stated that it had considered the additional evidence submitted
by Plaintiff that pertained to the relevant time period and had “found
that this information does not provide a basis for changing the
Administrative Law Judge’s decision.”

T. 2.

With respect to the

records from the Anthony Jordan Health Center dated November 4, 2015,
the Appeals Council stated that these records did not pertain to the
relevant time period and therefore did “not affect the decision about
whether [Plaintiff] was disabled beginning on or before September 25,
2015.”

Id.

Plaintiff

argues

that

the

Appeals

Council

consideration of her newly submitted evidence.

erred

in

its

However, Plaintiff’s

argument relies on a misreading of the Appeals Council’s decision.
Plaintiff contends that the Appeals Council rejected all of the newly
submitted evidence on the basis that it was “‘new information about a
later time’ that did not affect the decision whether Plaintiff was
disabled prior to September 25, 2015.”
is incorrect.

Docket No. 12-1 at 19.

This

As set forth above, the only evidence that the Appeals

Council declined to review on the basis that it did not pertain to the

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relevant time period were the records from the Anthony Jordan Health
Center dated November 4, 2015.
submitted

by

Plaintiff,

With respect to the other new evidence

the

Appeals

Council

did

review

that

information, but concluded that it did not provide a basis for changing
the ALJ’s decision.

T. 2.

For the reasons discussed below, the Court

finds no error in that determination.
A

claimant

may

submit

new

evidence

to

the

Appeals

Council

following an adverse ALJ disability determination without any showing
of good cause. 20 C.F.R. §§ 404.970(b), 416.1470(b). The regulations
provide that the Appeals Council “shall” consider “new” and “material”
evidence that relates to the period on or before the date of the ALJ
hearing decision. 20 C.F.R. §§ 404.970(b), 416.1470(b).

A claimant

must show that the proffered evidence is (1) “‘new’ and not merely
cumulative

of

what

is

already

in

the

record,”

and

that

it

is

(2) “material, that is, both relevant to the claimant’s condition
during the time period for which benefits were denied and probative.”
Lisa v. Sec’y of Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991)
(internal citations omitted). “The concept of materiality requires, in
addition, a reasonable possibility that the new evidence would have
influenced

the

[Commissioner]

to

decide

claimant’s

application

differently.” Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004)
(citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)).
In this case, the new information submitted to the Appeals Council
did not demonstrate that Plaintiff had any functional limitations
beyond those found by the ALJ.

With respect to Plaintiff’s knee

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condition, the additional records show that Plaintiff suffered a left
knee meniscus tear in early 2015 and that she was scheduled for
corrective
postponed.

surgery

in

September

T. 602-603, 607.

2015,

but

that

the

surgery

was

On physical examination in July 2015,

Plaintiff’s knee was normal in appearance, she had a range of motion
of 0-125 degrees of flexion, and there was no effusion, no significant
pain on circumduction, stable varus and valgus stress.

T. 621.

Lachman test was negative, while a McMurray test was positive.

A
Id.

Similarly, on September 9, 2015, Plaintiff had range of motion of 0-130
degrees of flexion and was “stable to varus and valgus stress as well
as Lachman exam and posterior drawer exam.”

T. 645.

Plaintiff was

able to independently perform her activities of daily living without
the use of an assistive device.

T. 634.

Plaintiff was referred to a

surgeon specializing in arthroscopic knee surgery.
of

Plaintiff’s left

knee

on

November

4,

2015

T. 645.
showed

Imagining
“very

mild

tricompartmental arthritic change” and “no evidence of acute fracture
or dislocation.”

T. 8.

The Court finds that the Appeals Council did not err in concluding
that the records newly submitted by Plaintiff were consistent with the
ALJ’s determination. The ALJ’s RFC finding imposed limitations related
to Plaintiff’s knee pain.

Specifically, the ALJ found that Plaintiff

could only occasionally crouch, kneel, climb, crawl, balance, and
stoop.

See T. 19.

Nothing in the records submitted to the Appeals

Council suggests that any greater functional limitations should have
been assessed.
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Moreover, the records do not support the conclusion that any
impairments related to Plaintiff’s left knee meniscus tear had lasted
or was expected to last at least 12 months.

To the contrary, the tear

was discovered in May 2015, and Plaintiff reported that the underlying
pain had started “3 months ago” (T. 600), i.e. in February 2015.

As

such, this condition had existed for at most 10 months as of the date
of the ALJ’s decision in September 2015.

To be considered disabling,

“[a]n impairment must last or be expected to last for a continuous
period of 12 months.”

Iannopollo v. Barnhart, 280 F. Supp. 2d 41, 46

(W.D.N.Y. 2003) (internal quotation omitted). Here, the impairment had
not lasted for at least 12 months and was scheduled to be surgically
alleviated.

The Appeals Council therefore reasonably found that this

evidence would not have a reasonable likelihood of changing the ALJ’s
decision.
Turning
submitted
functional

to

Plaintiff’s

evidence

again

limitations

determination.

mental

does

beyond

health

not
those

impairments,

demonstrate
included

the
in

the

newly

existence

the

ALJ’s

of
RFC

With respect to LCSW O’Neill’s assessment from August

2015, it is substantially similar to an assessment completed by LCWS
O’Neill in January
weighed.

2015, which the ALJ expressly considered and

See. T. 23, 441-44, 610-13.

The ALJ gave this assessment

only little weight, explaining that it was internally inconsistent, was
inconsistent with the clinical evidence of record (including LCSW
O’Neill’s own treatment notes), and was “a checklist-style form, with
only little rationale provided for the opinions contained therein.”
-8-

T. 23.

LCSW O’Neill’s August 2015 assessment suffers from these same

infirmities, and therefore cannot reasonably have been expected to
change the ALJ’s determination.
Regarding the records from Genesee Mental Health, nothing therein
demonstrates that Plaintiff has functional limitations greater than
those assessed by the ALJ.

For example, a mental status examination

performed on January 27, 2015 showed that Plaintiff was groomed and
cooperative, her speech was clear, her thought processes were logical
and goal-oriented, and she was appropriately oriented.

T. 652.

That

same day, Plaintiff’s therapist suggested to her that she pursue a
“10 hour work plan,” but Plaintiff protested that she didn’t know what
she would do with her child. T. 654.

The therapist explained that if

Plaintiff was “considered appropriate for work from a mental health
perspective,” her child care concerns would have to be addressed
outside the office setting. Id. On February 17, 2015, Plaintiff again
was well-groomed and cooperative, her behavior was appropriate, her
thought

process

was

logical

and

goal-directed,

her

judgment

was

appropriate, her short-term and long-term memory were intact, and she
was oriented as to person, place, and date.

T. 655.

On May 1, 2015, Plaintiff was again well-groomed and cooperative,
had appropriate behavior, logical and goal-directed thought processes,
and intact short-term and long-term memory were intact.

T. 656.

On

that same date, Plaintiff’s therapist sent a letter to Plaintiff’s
counsel explaining that her office “do[es] not speak to [patients’]

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ability to work.”

Id.

On June 2, 2015, Plaintiff had another largely

normal mental status examination.

T. 657.

The Appeals Council properly concluded that the records from
Genesee Mental Health were consistent with the ALJ’s decision. The ALJ
included significant mental health related limitations in her RFC
finding,

including

limiting

Plaintiff

to

simple, unskilled

work,

finding that she could only occasionally interact with the public and
could not perform teamwork, finding that Plaintiff cannot maintain an
hourly, machine-driven, assembly line production rate, and finding that
Plaintiff requires up to three short, unscheduled breaks.

These

limitations are fully consistent with Plaintiff’s treatment records.
With respect to the records from the Anthony Jordan Health Center
dated November 4, 2015, the Appeals Council is only required to
consider “new and material evidence if it relates to the period on or
before the date of the [ALJ’s] hearing decision.”

Miller v. Colvin,

No. 13-CV-6462P, 2015 WL 1431699, at *13 (W.D.N.Y. Mar. 27, 2015)
(internal quotation omitted).

Where a claimant submits “additional

evidence that does not relate to the period on or before the date of
the administrative law judge hearing decision,”

the Appeals Council

will “send [the claimant] a notice that explains why it did not accept
the additional evidence.”

20 C.F.R. § 404.970(c).

In this case, the

records from November 4, 2015 were generated after the date of the
ALJ’s decision, and nothing therein suggests that they are meant to be
retrospective or are otherwise related to Plaintiff’s condition prior
to September 25, 2015.

As such, the Appeals Council did not err when
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it informed Plaintiff that it had not accepted this evidence because
it was “new information about a later time.”

T. 2.

In sum, the Court finds that the Appeals Council appropriately
considered the additional evidence submitted to it by Plaintiff.
such,

there

is

no

basis

for

reversal

of

the

As

Commissioner’s

determination or for remand of this matter.
V.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for judgment on the
pleadings (Docket No. 12) is denied and the Commissioner’s motion for
judgment on the pleadings (Docket No. 13) is granted.
complaint is dismissed in its entirety with prejudice.

Plaintiff’s
The Clerk of

the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 12, 2018
Rochester, New York

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