Daniella A. v. Comm'r of Soc. Sec.

1

DANIELLA A.,^[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 1:21-CV-00067-LJV

United States District Court, W.D. New York

January 11, 2023

DECISION & ORDER

LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE

On January 14, 2021, the plaintiff, Daniella A (“Daniella”), brought this action under the Social Security Act (“the Act”). She seeks review of the determination by the Commissioner of Social Security (“Commissioner”) that she was not disabled.^[2] Docket Item 1. On December 8, 2021 Daniella moved for judgment on the pleadings, Docket Item 8 on May 3, 2022, the Commissioner responded and cross-moved for judgment on the pleadings, Docket Item 9; and on June 14, 2022, Daniella replied, Docket Item 10.

For the reasons that follow, this Court grants Daniella's motion in part and denies the Commissioner's cross-motion.^[3]

STANDARD OF REVIEW

“The scope of review of a disability determination . . . involves two levels of inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first decide whether [the Commissioner] applied the correct legal principles in making the determination.” Id. This includes ensuring “that the claimant has had a full hearing under the . . . regulations and in accordance with the beneficent purposes of the Social Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (alterations omitted) (quoting Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s] whether the determination is supported by ‘substantial evidence.'” Johnson, 817 F.2d at 985 (quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.” Johnson, 817 F.2d at 986.

DISCUSSION

I. ALLEGATIONS

Daniella argues that the Commissioner erred in two ways. Docket Item 8-1 at 1. First, she argues that the Appeals Council erred in rejecting several medical opinions without good reason. Id. at 15-18. Second, she argues that the ALJ improperly evaluated the opinion of the state agency psychological consultant, S. Jurgia, Ph.D. Id. at 18. This Court agrees that the Appeals Council erred and, because that error was to Daniella's prejudice, remands the matter to the Commissioner.

II. ANALYSIS

A reviewing court “may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding ....” 42 U.S.C. § 405(g); see id. at § 1383(c)(3). “[N]ew evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision.” Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). “If the Appeals Council fails to fulfill its obligations under [section 416.1470(b)], the proper course for the reviewing court is to remand for reconsideration in light of the new evidence.” Wilbon v. Colvin, 2016 WL 5402702, at *5 (W.D.N.Y. Sept. 28, 2016) (citations and internal quotation marks omitted); accord Patterson v. Colvin, 24 F.Supp.3d 356, 372 (S.D.N.Y. 2014); see also Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir.2015) (citing Perez, 77 F.3d at 46) (“[I]f the Appeals Council denies review of a case, the ALJ's decision, and not the Appeal's Council's, is the final agency decision.”).

The Appeals Council must review an ALJ's denial of benefits if the claimant submits new evidence that is “relevant to the claimant's condition during the time period for which benefits were denied[,] probative,” and not “merely cumulative of what is already in the record ....” Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1996); accord Williams v. Comm'r of Soc. Sec., 423 F.Supp.2d 77, 84 (W.D.N.Y. 2006). Stated another way, 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.” Webster v. Colvin, 215 F.Supp.3d 237, 242 (W.D.N.Y. 2016); 20 C.F.R. § 416.1470(a)(5).

Evidence is “new” if it did not exist at the time of the ALJ's decision and is not merely cumulative of other evidence in the record. Webster, 215 F.Supp.3d at 242. Evidence is “material” if it further clarifies the “severity and continuity of [the claimant's preexisting] impairments,” Gold v. Sec'y. of Health, Educ. and Welfare, 463 F.2d 38, 4142 (2d Cir. 1972), and there is “a reasonable probability that the new evidence would have influenced the [Commissioner] to decide [the] claimant's application differently.” Lisa v. Sec'y of Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991). If a reviewing court deems evidence that might relate to the period at issue to be new and material, it should remand the matter to the Commissioner. See Webster, 215 F.Supp.3d at 243; Barbara W. v. Comm'r of Soc. Sec., 541 F.Supp.3d 296, 303-04 (W.D.N.Y. 2021).

Here, Daniella submitted four new medical opinions for the Appeals Council to consider when deciding whether to review the ALJ's decision: (1) an opinion from Katherine Fox, Nurse Practitioner, dated November 7, 2019, Docket Item 6 at 23-24; (2) an opinion from NP Fox dated March 11, 2020, id. at 81-85; (3) an opinion from Scott Grefarth, Licensed Clinical Social Worker, dated March 27, 2020, id. at 86-90; and (4) an opinion from LCSW Grefarth dated October 20, 2020, id. at 52-53.

A. NP Fox's November 7, 2019 Opinion

The Appeals Council did not accept NP Fox's opinion dated November 7, 2019, because it “did not show a reasonable probability that it would change the outcome of the decision.” Id. at 11. But the Appeals Council did not even need to address that opinion because it was not “new.”^[4] See Webster, 215 F.Supp.3d at 242. The ALJ left the record open from the date of the hearing, November 22, 2019, through December 6, 2019, and Daniella submitted additional medical records during that period. See Docket Item 6 at 92. Nevertheless, Daniella failed to provide this opinion-dated two weeks before her hearing-either at the hearing or during the additional period when the record was left open. As such, the Appeals Council was not obligated to consider NP Fox's opinion of November 7, 2019.

B. NP Fox's March 11, 2020 Opinion and LCSW Grefarth's March 27 and October 20, 2020 Opinions

Daniella also submitted to the Appeals Council an opinion from NP Fox dated March 11, 2020, as well as opinions from LCSW Grefarth dated March 27 and October 20, 2020. Docket Item 6 at 52-54, 81-90. The Appeals Council did not accept these opinions because the Appeals Council asserted that they did not relate to the period at issue. Id. at 11. That was error.

Unlike NP Fox's November 2019 opinion, all three 2020 opinions were “new.” See Webster v. Colvin, 215 F.Supp.3d 237, 242 (W.D.N.Y. 2016) (noting that “new” evidence must not have existed when ALJ made her decision and must not be “merely cumulative” of the record). With dates of March 11, March 27, and October 20, 2020, the three opinions all were generated after the ALJ's decision earlier that year. See Docket Item 6 at 2, 53, 85, 90; see also Webster, 215 F.Supp.3d at 242 (“Here, the post-hearing evidence was clearly “new” because it did not exist until after the ALJ's decision ....”); Lovell v. Saul, 414 F.Supp.3d 398, 403 (W.D.N.Y. 2019) (“Plaintiff's favorable disability determination was decided on December 14, 2016, after the February 11, 2016 determination. It was not in existence at the time Plaintiff's prior disability claim was decided.”).

What is more, the opinions included new information and therefore were not merely cumulative. See Barbara v. Comm'r of Soc. Sec., 541 F.Supp.3d 296, 302 (W.D.N.Y. 2021). In fact, LCSW Grefarth's opinion dated October 20, 2020, was the first “Medical Examination for Employability Assessment, Disability Screening, and Alcoholism/Drug Addiction Determination” that he completed on Daniella's behalf. Docket Item 6 at 52-53.

Although NP Fox and LCSW Grefarth had previously completed mental residual functional capacity questionnaires, see Docket Item 7 at 391-96, 559-64, the new questionnaires differed substantively from the earlier ones. For example, in May 2019, NP Fox had found that Daniella was seriously limited in her ability to work in coordination with or proximity to others without being unduly distracted and that she was unable to meet competitive standards in her ability to make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms, accept instructions and respond appropriately to criticism from supervisors, and get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes. Id. at 393. But by March 2020, NP Fox found that Daniella's ability to work in coordination with or proximity to others without being unduly distracted was unable to meet competitive standards, and she found that Daniella had no useful ability to function in the areas of making simple work-related decisions, completing a normal workday and workweek without interruptions from psychologically based symptoms, accepting...