United States District Court, W.D. New York
JOSEPH L. PLANTE, Plaintiff,
NANCY A. BERRYHILL, Defendant.
DECISION & ORDER
JONATHAN W. FELDMAN UNITED STATES MAGISTRATE JUDGE
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
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).
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
with plaintiff. The AC erred in summarily rejecting the
August 15, 2015 and March 8, 2016 treating physician records
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.
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
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 Fed.Appx. 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 the same condition previously complained
of by the plaintiff.” Hightower, 2013 WL
3784155, at *3.
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
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. Dr. Koretz was plaintiff's
treating doctor. Indeed, had the AC accepted Dr. 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 or standing for two minutes before returning to his
original position.” Id. Consequently, this
matter must be remanded to the Commissioner for appropriate
consideration of this new evidence.
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.
Judge Wolford recently explained:
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