Harrington v. Commissioner of Social Security

Filing 9

OPINION AND ORDER granting 6 MOTION for Order Reversing the Decision of the Commissioner; denying 8 MOTION for Order Affirming the Decision of the Commissioner and the case is REMANDED for proceedings consistent with this Opinion and Order. Signed by Judge Christina Reiss on 3/31/2021. (kp)

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UNITED STATES DISTRICT COURT
FOR THE
2021 ~;J,R 31
DISTRICT OF VERMONT
EDWARDH.,

fM 2: 21

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Plaintiff,
V.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case No. 2:19-cv-00180-cr

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OPINION AND ORDER
GRANTING PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE
COMMISSIONER, DENYING THE COMMISSIONER'S MOTION TO AFFIRM,
AND REMANDING FOR FURTHER PROCEEDINGS
(Docs. 6 & 8)
Plaintiff Edward Harrington ("Plaintiff') brings this action for Title II Social
Security Disability Insurance Benefits ("DIB") under the Social Security Act ("SSA").
Plaintiff moves to reverse the decision of the Social Security Commissioner (the
"Commissioner") that he is no longer disabled pursuant to 42 U.S.C. § 405(g), asserting
that Administrative Law Judge Tracy LaChance (the "ALJ") erred by inadequately
developing the record with regard to his upper extremity limitations in light of his status
as a self-represented claimant. (Doc. 6.) He also asserts that the Appeals Council erred in
denying his request that additional evidence of his lower extremity limitations be
considered. He seeks a remand for a further hearing. The Commissioner moves to affirm.
(Doc. 8.)
Plaintiff is represented by Craig A. Jarvis, Esq. Special Assistant United States
Attorneys Hugh Dun Rappaport and Joshua L. Kershner represent the Commissioner.

I.

Procedural Background.
On September 17, 2008, the Commissioner found that Plaintiff was disabled

beginning on October 1, 2007 in a comparison point decision ("CPD") which serves as
the benchmark to determine whether Plaintiffs condition has improved so that he is no

longer disabled. Plaintiff remained disabled and eligible for benefits pursuant to the
September 17, 2008 decision until February 24, 2017, when the Commissioner issued a
Notice of Disability Cessation informing Plaintiff that it determined his health had
improved and that his disability status ended in March 2017. Plaintiff continued to
receive benefits until May 2017.
On March 20, 2017, Plaintiff filed a request for reconsideration of the disability
cessation decision and on June 13, 2017 a video teleconference disability hearing was
conducted before SSA Claims Representative Frederica Schneider and Disability Hearing
Officer Kristina Burbank. On June 28, 2017, a Disability Hearing Officer's Decision
concluded that Plaintiff was not disabled.
Plaintiff requested a hearing and on March 23, 2018 an administrative hearing was
held before ALJ LaChance at which Plaintiff was self-represented. He sought
representation but was advised by the attorneys he contacted that they would not
represent him without a retainer which he could not afford. Plaintiff testified at the
hearing, as did a medical expert and a vocational expert. The ALJ issued an unfavorable
decision on June 14, 2018, which stands as the Commissioner's final decision.

II.

The ALJ's Application of the Eight-Step, Sequential Framework.
To determine whether a plaintiff continues to be disabled I and remains eligible for

DIB benefits, the Commissioner uses an eight-step sequential framework:

(1) Are you engaging in substantial gainful activity? If you are (and any
applicable trial work period has been completed), we will find disability to
have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of
impairments which meets or equals the severity of an impairment listed in
1

Disability is defined as the inability "to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than
twelve months[.]" 42 U.S.C. §§ 423(d)(l)(A), 1382c(a)(3)(A). A claimant's "physical or mental
impairment or impairments" must be "of such severity" that the claimant is not only unable to do
any previous work but cannot, considering the claimant's age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy. 42
U.S.C. §§ 423( d)(2)(A), 1382c(a)(3)(B). "The definition of 'disabled' is the same for purposes of
receiving [DIB] and SSI benefits." Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
2

appendix 1 of this subpart? If you do, your disability will be found to
continue.
(3) If you do not, has there been medical improvement as defined in
paragraph (b )( 1) of this section? If there has been medical improvement as
shown by a decrease in medical severity, see step (4). If there has been no
decrease in medical severity, there has been no medical improvement. (See
step (5).)
(4) If there has been medical improvement, we must determine whether it is
related to your ability to do work in accordance with paragraphs (b )( 1)
through (4) of this section; i.e., whether or not there has been an increase in
the residual functional capacity [("RFC")] based on the impairment(s) that
was present at the time of the most recent favorable medical determination.
If medical improvement is not related to your ability to do work, see step
(5). If medical improvement is related to your ability to do work, see step
(6).
(5) Ifwe found at step (3) that there has been no medical improvement or if
we found at step (4) that the medical improvement is not related to your
ability to work, we consider whether any of the exceptions in paragraphs
(d) and (e) of this section apply. If none of them apply, your disability will
be found to continue. If one of the first group of exceptions to medical
improvement applies, see step (6). If an exception from the second group of
exceptions to medical improvement applies, your disability will be found to
have ended. The second group of exceptions to medical improvement may
be considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to do
work or if one of the first group of exceptions to medical improvement
applies, we will determine whether all your current impairments in
combination are severe (see§ 404.1521). This determination will consider
all your current impairments and the impact of the combination of those
impairments on your ability to function. If the [RFC] assessment in step (4)
above shows significant limitation of your ability to do basic work
activities, see step (7). When the evidence shows that all your current
impairments in combination do not significantly limit your physical or
mental abilities to do basic work activities, these impairments will not be
considered severe in nature. If so, you will no longer be considered to be
disabled.
(7) If your impairment(s) is severe, we will assess your current ability to do
substantial gainful activity in accordance with§ 404.1560. That is, we will
assess your [RFC] based on all your current impairments and consider
whether you can still do work you have done in the past. If you can do such
work, disability will be found to have ended.
3

(8) If you are not able to do work you have done in the past, we will
consider whether you can do other work given the [RFC] assessment made
under paragraph (f)(7) of this section and your age, education, and past
work experience (see paragraph (f)(9) of this section for an exception to
this rule). If you can, we will find that your disability has ended. If you
cannot, we will find that your disability continues.
(9) We may proceed to the final step, described in paragraph (f)(8) of this
section, if the evidence in your file about your past relevant work is not
sufficient for us to make a finding under paragraph (f)(7) of this section
about whether you can perform your past relevant work. If we find that you
can adjust to other work based solely on your age, education, and [RFC],
we will find that you are no longer disabled, and we will not make a finding
about whether you can do your past relevant work under paragraph (f)(7) of
this section. Ifwe find that you may be unable to adjust to other work or if
§ 404.1562 may apply, we will assess your claim under paragraph (f)(7) of
this section and make a finding about whether you can perform your past
relevant work.
20 C.F.R. § 404.1594(±)(1)-(9).
At Step One, the ALJ determined that Plaintiff has not worked since the alleged
onset date. At Step Two, she found that Plaintiff has severe impairments of degenerative
disc disease, obstructive sleep apnea, carpal tunnel syndrome, and depression.
At Step Three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or equaled the severity of an impairment listed in
the SSA regulations, and specifically considered Listing 1.04 for disorders of the spine,
Listing 1.08 for soft tissue injury, Listing 3.00 for respiratory disorders, Listing 11.14 for
peripheral neuropathy, and Listing 12.04 for bipolar and related disorders.
At Step Four, the ALJ found medical improvement occurred by March 1, 2017
because at a mental psychological consultative examination Plaintiff "reported that his
depression was controlled with medication, and he did not report any mental health
limitations when asked about his inability to work." (AR 59.) Plaintiff also reported
"engaging in more activities when compared to the CPD, such as helping his son get
ready for school, engaging in household chores he was physically able to do, driving,
working on bills and finances with his girlfriend, and even going hunting with friends."
Id.
4

ALJ LaChance found Plaintiffs decreased medical impairment affected his ability
to do work and thus omitted Step Five. At Step Six, she concluded that Plaintiff
continued to have a severe impairment or combination of impairments based on his
degenerative disc disease, obstructive sleep apnea, carpal tunnel syndrome, and
depression. At Step Seven she found that although severe, Plaintiffs medical
impairments decreased in medical severity to the point where he had an RFC to perform
light work as follows:
lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand
and/or walk for 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour
workday; he can never climb ladders, ropes, or scaffolds; he can
occasionally climb ramps and stairs; he can occasionally balance, stoop,
kneel, crouch, and crawl; and occasionally perform overhead reaching. He
is limited to simple tasks with only occasional changes in routine, no fastpaced production standards, and occasional interaction with general public.
Id.

At Step Eight, the ALJ concluded that given Plaintiffs age, education, work
experience, and RFC, he could perform a significant number of jobs in the national
economy, including office helper, mail clerk, and fruit distributor. Accordingly, the ALJ
found that Plaintiffs disability ended on March 1, 2017, and that he had not become
disabled again since that date.

III.

Conclusions of Law and Analysis.
A.

Standard of Review.

The court "conduct[s] a plenary review of the administrative record to determine if
there is substantial evidence, considering the record as a whole, to support the
Commissioner's decision and if the correct legal standards have been applied." Cichocki
v. Astrue, 729 F.3d 172, 175-76 (2d Cir. 2013) (internal quotation marks and citation
omitted). "Substantial evidence is 'more than a mere scintilla' and 'means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion."'
Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).

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"If evidence is susceptible to more than one rational interpretation, the
Commissioner's conclusion must be upheld." McIntyre v. Colvin, 758 F.3d 146, 149 (2d
Cir. 2014). Even where "substantial evidence supporting the claimant's position ...
exists[,]" the ALJ's decision must be upheld if the record also contains substantial
evidence to support a contrary conclusion. Jones v. Berryhill, 415 F. Supp. 3d 401, 411
(S.D.N.Y. 2019) (citation omitted). "It is the function of the Secretary, not the reviewing
courts, to resolve evidentiary conflicts and to appraise the credibility of witnesses,
including the claimant." Aponte v. Sec '.Y, Dep 't ofHealth & Human Servs. of US., 728
F.2d 588, 591 (2d Cir. 1984) (internal quotation marks, brackets, and citation omitted).

B.

Whether the ALJ Adequately Developed the Record When
Considering the Appeal of a Self-Represented Claimant.

Plaintiff asserts that the ALJ should have developed the medical record to resolve
inconsistencies regarding the extent of his upper extremity impairments. He argues that
the ALJ' s duty was heightened because he was not represented by counsel and that the
ALJ should have:
pointed out that [Michael Kenosh, MD] had given an opinion on final
disability and not on the Plaintiffs limitations. She should have given the
Plaintiff an opportunity to have Dr. Kenosh, [Drinnon A. Hand, MD], or
both comment on his limitations rather than proceeding only with a
statement about final disability from Dr. Kenosh. Alternatively, she could
have also called a medical expert to testify about the medical questions that
are left open by the record.
(Doc. 6 at 7.) The Commissioner counters that Plaintiff fails to explain how additional
comments by either Dr. Kenosh or Dr. Hand would affect the disability determination.
"It is the rule in our circuit that the ... ALJ, unlike a judge in a trial, must on

behalf of all claimants affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding." Lamay v. Comm'r ofSoc. Sec., 562 F.3d
503, 508-09 (2d Cir. 2009) (internal quotation marks, omissions, and alterations omitted);
see also Shaw v. Chafer, 221 F.3d 126, 131 (2d Cir. 2000) (observing that an ALJ has an
obligation to develop the record because "of the non-adversarial nature of ... benefits
proceedings"); Echevarria v. Secy ofHealth & Human Servs., 685 F.2d 751, 755 (2d
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Cir. 1982) (noting that "the ALJ, unlike a judge in a trial, must ... affirmatively develop
the record"). "This duty exists even when the claimant is represented by counsel[,]"
Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996), but "[w]hen a claimant properly waives
his right to counsel and proceeds prose, the ALJ's duties are heightened." Moran v.
Astrue, 569 F .3d 108, 113 (2d Cir. 2009) (internal quotation marks omitted). This
heightened duty requires the ALJ '"to scrupulously and conscientiously probe into,
inquire of, and explore for all the relevant facts[.]'" Hankerson v. Harris, 636 F.2d 893,
895 (2d Cir. 1980) (quoting Gold v. Sec'y of HEW, 463 F.2d 38, 43 (2d Cir. 1972)); see
also Cruz v. Sullivan, 912 F .2d 8, 11 (2d Cir. 1990) ("The ALJ has a duty to adequately
protect a prose claimant's rights").
An ALJ also has a duty to resolve "gaps in the administrative record[.]"
Hankerson, 636 F.2d at 897 (quoting Parker v. Harris, 626 F.2d 225,235 (2d Cir.
1980)); see also Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) ("In light of the
ALJ's affirmative duty to develop the administrative record, an ALJ cannot reject a
treating physician's diagnosis without first attempting to fill any clear gaps in the
administrative record.") (internal quotation marks omitted). The Second Circuit has
emphasized that, "[i]n such cases where the claimant was handicapped by lack of counsel
at the administrative hearing, the reviewing court has a duty to make a searching
investigation of the record to ensure that the claimant's rights have been adequately
protected." Hankerson, 636 F.2d at 895 (internal quotation marks omitted).
On February 2, 2017, state agency consultative examiner Alan Lilly, MD,
conducted a physical examination of Plaintiff wherein Plaintiff reported his two "major
... difficulties ... are depression ... and secondly sleep apnea." (AR 1216.) He also
reported "[o]ther problems ... includ[ing] ongoing difficulty with his back, both in his
neck and low back .... [S]tat[ing] that he does have some difficulty into his neck but no
difficulty in the shoulders or arms." Id. Plaintiff explained that "he now does odd jobs at
home. He is able to drive a lawnmower and activities such as that and will do some lifting
and bending." Id. Following a physical examination, Dr. Lilly noted that Plaintiff had
"some mild stiffness in the fingers, but other than that the hands and fingers are
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completely within normal limits"; "[f]ull range of motion"; "[e]xcellent grip strength";
and that "[h]e is certainly able to perform fine and gross motor activities." (AR 1217.)
On February 22, 2017, Plaintiffs lumbar and thoracic spine were x-rayed. Donald
Swartz, MD, reviewed these x-rays and noted with regard to the lumbar spine x-ray that
there were "[m]ild degenerative disc changes of the lower lumbar spine." (AR 1238.) As
for the thoracic spine x-ray he noted "[m]inimal degenerative changes of the thoracic
spine." (AR 1236.) On the same day, Geoffrey Knisely, MD, reviewed Plaintiffs thenexisting medical records and Plaintiffs statements and concluded that Plaintiffs medical
impairments had improved since the CPD and that he could perform light work.
On March 28, 2017, treating medical examiner Andrew Newman, PA, examined
Plaintiff who reported chronic neck pain, bilateral cervical radicular syndrome, and
numbness in both hands, including a six to seven year history of neck pain with no
"inciting event." (AR 1243.) Plaintiff reported "constant pain in the neck and upper back
with radiating pain into both arms with numbness and tingling in the hands .... It is
worse with driving. It is worse at night. ... His neck pain is worse with overhead
work .... He states his hands seem to be the biggest issue currently." (AR 1243-44.) PA
Newman noted that Plaintiff had no recent treatment for his neck pain and reviewed a
magnetic resonance imaging ("MRI") report from May 2011 that "showed a right
foraminal dis[c] herniation at C6-C7 of the extrusion type than impinged the right C7
nerve root. There was marked dis[c] degeneration at C3-C4." (AR 1245.) Upon
reviewing an x-ray of Plaintiffs lumbar spine from February 2017, PA Newman noted
mild degenerative disc changes and after reviewing an x-ray of Plaintiffs thoracic spine
from that same month, he again noted minimal degenerative change. PA Newman
recommended a new MRI of Plaintiffs cervical spine and an electromyogram ("EMG")
of"both upper extremities." (AR 1246.) The MRI revealed "[m]ultilevel disc
degenerative changes as noted with mild bulging but no focal protrusion. Multilevel
foraminal encroachment bilaterally as noted. Borderline central canal stenosis at C5-6
and C6-7." (AR 1250.)

8

On April 17, 2017, Plaintiff met with PA Newman and Dr. Kenosh in a shared
office visit during which they reviewed the April 11, 2017 EMG. Dr. Kenosh authored
the report from this visit and noted the EMG "was remarkable for bilateral median nerve
entrapment neuropathy at the wrist. Findings were symmetric and graded as mild. There
is no upper extremity radiculopathy or ulnar nerve entrapment neuropathy." (AR 1260.)
He further observed that the "[p]hysical exam show[ ed] normal upper extremity reflexes,
strength and no APB atrophy." Id. Dr. Kenosh's diagnostic impressions were that
Plaintiff had bilateral cervical radicular syndrome and bilateral carpal tunnel syndrome,
but he stated "I do not honestly see anything concerning in my read of the Radiology
report, but I would like to look at his images before I give my final impression. His
electrodiagnostic study shows mild carpal tunnel[]" (AR 1261) and recommended
bilateral carpal tunnel corticosteroid injections for diagnostic and therapeutic purposes.
The ALJ cited this evidence as indicating that "both treating providers noted that there
was nothing concerning on the claimant's MRI and recommended that he undergo carpal
tunnel injections[.]"(AR 70.)
On April 18, 2017, Plaintiff met with his treating physician, Dr. Hand, and
reported "years of worsening numbness tingling points to 4th-5th fingers and ... medial
hand and arm[,]" and noted "left is worse and right describes as achy pain numbness
tingling." (AR 1230.) Dr. Hand noted that Plaintiffs "grip strength is good bilateral as
well as reduction of the fingers decreased sensation 4/5 fingers." (AR 1231.) In the
assessment portion of his notes he wrote "[ u]lnar neuropathy" and stated that Plaintiff
would be referred to a hand surgeon and undergo an EMG. Id. That same month, Plaintiff
received bilateral carpal tunnel corticosteroid injections. In a follow-up appointment with
PA Newman and Dr. Kenosh on May 22, 2017, he stated that the injections "did help for
about a week with pain and numbness and tingling in his forearms and hands. He
estimates 30% to 40% improvement, but the symptoms have returned. He describes a
daily aching and throbbing sensation in both forearms with pins and needles in his
hands." (AR 1285.) PA Newman and Dr. Kenosh recommended a cervical epidural
steroid injection which Plaintiff received on June 22, 201 7. In July 2017, he reported that
9

he was "worse after his cervical epidural steroid injection with [a] new complaint of
numbness and tingling in the plantar aspect of both feet." (AR 1302.) PA Newman and
Dr. Kenosh discussed an acupuncture trial for Plaintiffs chronic pain and discouraged a
surgical evaluation as he was not a surgical candidate. They acknowledged that Plaintiff
had explored most treatment options and they had nothing more to offer him.
In May 2017, consultative examiner Rebecca Winokur, MD, reviewed Plaintiffs
medical records, quoted Dr. Kenosh as stating "between his electrodiagnostic study and
his cervical imaging, I do not see a disabling condition[,]" (AR 1272) (internal quotation
marks omitted), and concluded that a recent MRI and EMG suggested mild carpal tunnel
disease and that the medical record did not support any significant impact on Plaintiffs
functional capacity.
ALJ LaChance assigned Dr. Lilly's opinion "great weight" and noted that despite
Plaintiffs issues with his back, neck, and hands, he "was still able to move around quite
well and that he could still perform fine and gross motor movements." (AR 72.) She also
assigned "great weight" to the opinion of Dr. Knisely who reviewed Plaintiffs medical
records in February 201 7 and concluded that he could perform light work. She assigned
less weight to Dr. Winokur's opinion that Plaintiff could perform medium work with
certain exceptions because Dr. Winokur did not adequately consider Plaintiffs subjective
reports of pain and fatigue.
ALJ LaChance did not assign any particular weight to the remaining opinions in
the record but noted that:
In terms of his hand symptoms, while the claimant's EMG study revealed
evidence of mild carpal tunnel syndrome, it ruled out evidence of cervical
radiculopathy symptoms. Although the claimant has evidence of reduced
sensation in his fingers and he has reportedly failed injection treatment, his
treating providers note that he is not a surgical candidate and he continues
to have full upper extremity strength as well as good grip strength and an
ability to make a fist. Finally, his treating providers have consistently
recommended that the claimant exercise as the primary treatment for his
conditions, and as of July 2017, the claimant reported that he had been
exercising on a stationary bike.
(AR 65.)
10

Against this backdrop, Plaintiff asserts the ALJ had a duty to seek a medical
clarification from either his treating physician or a medical consultant regarding
inconsistent medical evidence created by his self-reports. ALJ LaChance, however,
adequately developed the record with regard to Plaintiffs claims of upper extremity
impairment by reviewing the treating source records from Drs. Hand and Kenosh and PA
Newman and the consultative examiner reports ofDrs. Lilly, Winokur, and Knisely.
Although Dr. Kenosh and PA Newman provided no opinion regarding Plaintiffs upper
extremity limitations, nothing contained in their opinions conflicts with Plaintiffs RFC.
The ALJ credited Plaintiffs subjective reports of pain and fatigue and imposed upper
extremity limitations based on those self-reports.
With regard to Plaintiffs testimony, ALJ LaChance noted that "[h]e testified that
his hands and arms go[] numb when he drives and that h[ e] has difficulty lifting things
because he cannot feel what he is lifting." (AR 63.) The ALJ concluded:
After considering the evidence of record, the undersigned finds that the
[Plaintiffs] medically determinable impairments could have reasonably
been expected to produce the alleged symptoms; however, the [Plaintiffs]
statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the objective medical and other
evidence .... Accordingly, these statements have been found to affect the
[Plaintiffs] ability to work only to the extent they can reasonably be
accepted as consistent with the objective medical and other evidence.
Id. The ALJ further noted that Plaintiff performed "some household chores, driving,

watching television, helping his girlfriend with finances, and going shopping[,]" (AR 65),
and that Plaintiff had not received consistent treatment for his lower back or neck pain
since the CPD, had full range of motion in his upper extremities as well as excellent grip
strength, and had the ability to perform fine and gross motor movements.
The ALJ considered the opinions of three treating medical professionals and four
state agency consultative examiners, each of whom noted Plaintiffs self-reports of upper
extremity impairment. She reviewed x-rays of Plaintiffs cervical and lumbar spine; an
MRI and EMG of his cervical spine; the attempted treatment for carpal tunnel through
bilateral corticosteroid injections; and the suggested treatment protocol, which included
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acupuncture and physical exercise. No medical opinion contained in the record supports a
conclusion that Plaintiff was more limited than his RFC. The ALJ's determination that
Plaintiffs claims were not entirely consistent with the objective medical evidence was
supported by substantial evidence and cannot be disturbed on appeal even if the court
might reach a different conclusion. See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998)
(holding "[w ]here an administrative decision rests on adequate findings sustained by
evidence having rational probative force, the court should not substitute its judgment for
that of the Commissioner").
Because the ALJ adequately developed the record and no material evidence was
missing from her disability determination, Plaintiffs motion to reverse based on the
ALJ's alleged failure to adequately develop the record is DENIED.
C.

Whether the Appeals Council Improperly Denied Plaintifrs Request to
Review New Evidence of his Lower Extremity Limitations.

Plaintiff argues that the Appeals Council erred by failing to consider new evidence
he submitted after the ALJ rendered her decision, including an MRI of his lumbar spine
taken November 19, 2018 which revealed:
Degenerative disc and facet changes at L4-5 with grade 1 spondylolisthesis
and marked central canal stenosis .... Marked foraminal stenosis on the
[right] at L4-5 secondary to encroachment of disc protrusion and facet
osteophyte with mild impingement on the [right] L4 nerve root. There is a
milder degree of foraminal stenos is on the [left] .... Central/[right]
foraminal disc protrusion at L4-5 which contributes to both central and
foraminal stenosis.
(AR 20.) He also submitted December 20, 2018 treatment notes from Matthew Zmurko,
MD, who reviewed the November 2018 MRI and noted, among other things, that:
[Plaintiff] ambulates with a fairly normal reciprocating gait pattern. He can
do heel and toe raises, he can do a partial squat. He can forward flex to his
mid shins, extend back about 5 degrees. Extension reproduces some
discomfort across the small of his back. He can do a deep squat. He has 5/5
motor strength on his bilateral quadriceps, dorsiflexors, EHL, and
gastrocnemi[us]. Sensation is grossly intact to light touch. His reflexes are
physiologic and symmetric at the patella and Achilles. He has no clonus
bilaterally. Negative straight leg raise while seated bilaterally. No

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significant groin pain with internal or external rotation [of] his hips. He has
no calf pain bilaterally. Good palpable distal pulses.
He had an MRI done at Southwestern Vermont Medical Center dated
November 19, 2018. This demonstrated some degenerative changes, most
prominent at the L4-L5 level. There is a slight spondylolisthesis. There is
some facet arthropathy with some increased fluid signal within the facet
joints at the L4-L5 level. There is a right dis[c] protrusion that appears to be
effacing the traversing right LS nerve root. There is some moderate-tosevere stenosis secondary to facet arthropathy and ligamentum
hypertrophy, and dis[c] protrusion at the L4-L5 level. Radiographs taken
today consist of AP and lateral of the lumbar spine, which show some ageappropriate degenerative changes, mostly at the L4-L5 level with a vacuum
phenomena. There is also a spondylolisthesis there. There is some
accentuation with flexion motions.
(AR 9.) Dr. Zmurko recommended a "right L4-L5 transforaminal lumbar interbody
fusion to decompress the neural elements, help with leg pain and secondarily help with
back pain." (AR 10.) The Appeals Council found that "[t]he additional evidence does not
relate to the period at issue[]" because it did not "affect the decision about whether
[Plaintiff was] disabled beginning or before June 14, 2018." (AR 2.)
Plaintiff asserts that the November 2018 MRI relates to the relevant period
because the onset of symptoms occurred before the ALJ rendered her decision. He cites
his July 2017 report to PA Newman that he began to experience new symptoms of
numbness in his feet. At the ALJ's hearing, he testified that he had lower back problems
that required him to wear a brace and limited his ability to sit and stand. He contends that
the "MRI shows the end result of a degenerative process that would have developed over
several years." (Doc. 6 at 8.)
The Appeals Council must receive new evidence following an ALJ's decision if
the evidence is "new, material, and relates to the period on or before the date of the
[ALJ's] decision, and there is a reasonable probability that the additional evidence would
change the outcome of the decision." 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5); see

also Perez, 77 F.3d at 45 ("The regulations require the Appeals Council to 'evaluate the
entire record including the new and material evidence submitted ... [and] review the case
if it finds that the [ALJ' s] action, findings, or conclusion is contrary to the weight of the
13

evidence currently of record."') (alterations in original) (quoting 20 C.F.R. § 404.970(b)).
Evidence is material if it is "relevant to the claimant's condition during the time period
for which benefits were denied[.]" Mauro v. Comm 'r ofSoc. Sec. Admin., 746 F. App'x
83, 84 (2d Cir. 2019). If the evidence was likely to have existed during the relevant time
period because it reflects a degenerative process, it may be deemed relevant to the period
at issue. See Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975) (remanding to
consider medical reports generated after ALJ's decision when claimant's present
condition "is the result of a degenerative process"); Minor v. Astrue, 2010 WL 3294411,
at *4 (D. Md. Aug. 20, 2010) (holding that medical records created after plaintiffs date
last insured were relevant to her claim because her "condition was not due to an accident
postdating her [date last insured], for example, but was based on" an earlier diagnosis).
In this case, although the evidence post-dates the ALJ's decision, it relates to the
disability period which began on March 1, 2017 and continued through the ALJ's June
14, 2018 decision. In March 2017, an x-ray of Plaintiffs lumbar spine revealed "[m]ild
degenerative disc changes of the lower lumbar spine" and "[n]o evidence for
spondylolysis or spondyliosthesis." (AR 1220.) The November 2018 MRI, in contrast,
reflects significant changes in the same area of Plaintiffs spine and supports his claim of
"numbness and tingling in the plantar aspect of both feet that is a constant, daily, aching,
associated with weakness and worse with bending, sitting, standing, and walking[]"
which began in July 2017. (AR 1301.) Additional lumbar spine degenerative changes
observed only five months after the ALJ issued her decision are therefore likely to have
been present during the relevant period. See Pollard v. Halter, 3 77 F .3d 183, 194 (2d Cir.
2004) (requiring remand where new evidence "may identify additional impairments
which could reasonably be presumed to have been present") (internal quotation marks
and citation omitted).
With regard to whether there is a reasonable probability that this evidence would
change the outcome of the disability determination, the ALJ concluded that, although
severe, Plaintiffs degenerative disc disease did not meet the requirements for Listing
1.04 because:
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there is no evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss
(atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss and, if there is involvement of the
lower back, positive straight-leg raising test (sitting and supine). While
imaging reveals evidence of degenerative changes, particularly in the
claimant's cervical spine, objective examination shows that the claimant
has full strength in the upper and lower extremities, no evidence of motor
atrophy, generally normal range of motion, and negative straight leg raise
testing. There is also no evidence of arachnoiditis or lumbar spinal stenosis
resulting in the inability to ambulate effectively.
(AR 56) (citations omitted). She also discounted Plaintiff's foot pain and numbness in
part because he was not seeking active treatment for that impairment and because his
treating physicians and medical personnel repeatedly recommended physical exercise as a
treatment. The ALJ did not consider Plaintiff's allegations of foot numbness and pain in
rendering her RFC determination.
The November 2018 MRI provides objective clinical support for Plaintiff's claims
of severe degenerative disc disease because, among other things, it notes "moderate-tosevere stenosis" and "dis[c] protrusion at the L4-L5 level[]" as well as "a right dis[c]
protrusion that appears to be effacing the traversing right LS nerve root." (AR 9.) The
ALJ observed this type of evidence was absent in her unfavorable decision. It also
negates the ALJ's finding that Plaintiff did not seek treatment for the degenerative
changes in his cervical and lumbar spine since the CPD because, as a result of his
November 2018 lumbar spine MRI, Dr. Zmurko recommended, and Plaintiff underwent,
spinal surgery. Given the lack of objective medical evidence in the record before the ALJ
regarding Plaintiff's lumbar spine impairment, there is a reasonable probability that this
new evidence would have influenced her decision regarding whether Plaintiff had further
RFC limitations or was disabled.
Because Plaintiff's post-decision evidence was new, material, and had a
reasonable probability to change the outcome, his motion to reverse the decision of the
Commissioner is GRANTED.

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D.

The ALJ's RFC Determination.

Although Plaintiff does not raise this as a ground for remand, 2 ALJ LaChance
gave "great weight" to the opinion of Gregory Korgeski, Ph.D., "an expert in psychology
[who] based his assessment on his actual examination of' Plaintiff (AR 67) and who
opined that Plaintiff "may have some adaptation issues" given his "chronic pain and sleep
apnea, ifhe were required to return to work suddenly." (AR 65.) To address Dr.
Korgeski' s "further suggest[ion] ... that returning to work could affect [Plaintiffs]
control over his depression[,]" the ALJ added "simple tasks, minimal workplace changes,
no fast paced work, and limited public contact[]" to Plaintiffs RFC. (AR 67.) However,
Dr. Korgeski did not recommend those limitations to address the return to work problems
he identified nor does it appear that these limitations would address his concerns. Instead,
he opines that "[g]iven [Plaintiffs] pain issues and sleep issues, I suspect that if he were
to suddenly be faced with the need to try to function in a work setting, the current level of
control over his depression would be significantly tested." (AR 1213.) Although the ALJ
gave Dr. Korgeski's opinion "great weight," she failed to address this portion of his
opinion or ask what limitations, if any, would render Plaintiffs return to work possible.

CONCLUSION
For the foregoing reasons, Plaintiffs motion to reverse the decision of the
Commissioner (Doc. 6) is GRANTED, the Commissioner's motion to affirm (Doc. 8) is
DENIED, and the case is REMANDED for proceedings consistent with this Opinion and
2

See Womackv. Astrue, 2008 WL 2486524, at *5 (W.D. Okla. June 19, 2008) ("This [c]ourt
generally decides appeals under the Social Security Act by considering the issues raised and
argued in a plaintiffs brief. Courts are not required to guess as to grounds for an appeal, nor are
they obliged to scour an evidentiary record for every conceivable error. But a reviewing court
may not, on the other hand, 'abdicate its traditional judicial function, nor escape its duty to
scrutinize the record as a whole to determine whether the conclusions reached are reasonable,
and whether the hearing examiner applied correct legal standards to the evidence.'") (citation
omitted) (quoting Bridges v. Gardner, 368 F.2d 86, 90 (5th Cir.1966)); Mangan v. Colvin, 2014
WL 4267496, at *1 (N.D. Ill. Aug. 28, 2014) ("Even if the government had not raised it, a
reviewing court may sua sponte address issues in social security cases."); Pastrana v. Chafer,
917 F. Supp. 103, 107 n.2 (D.P.R. 1996) ("The importance of assuring the fair administration of
the social security system is a sufficiently important concern to justify the Court's sua sponte
consideration of the ALJ's bias.").
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Order.
SO ORDERED.

st

Dated at Burlington, in the District of Vermont, this 3!_ day of March, 2021.

Christina Reiss, District Judge
United States District Court

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