Hunter v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

RICHARD CHARLES HUNTER,

Plaintiff, Case # 18-CV-1140-FPG

v. DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION

On April 22, 2014, Plaintiff Richard Charles Hunter protectively applied for Supplemental

Security Income under Title XVI of the Social Security Act. Tr.1 137-42. After the Social Security

Administration (“SSA”) denied his claim, Hunter testified at a hearing before Administrative Law

Judge Stephen Cordovanni (“the ALJ”). Tr. 33-71. On October 31, 2016, the ALJ issued an

unfavorable decision. Tr. 21-28. The Appeals Council granted Hunter’s request for review, but

ultimately issued an unfavorable decision on August 22, 2018. Tr. 1-8, 132-36. Hunter appealed

to this Court seeking review of the SSA’s final decision.2 ECF No. 1.

The parties moved for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). ECF Nos. 8, 15. For the reasons that follow, Hunter’s motion is GRANTED,

the Commissioner’s motion is DENIED, and this matter is REMANDED for further administrative

proceedings.

1 “Tr.” refers to the administrative record in this matter. ECF No. 5.

2 The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c).

LEGAL STANDARD

When it reviews a final decision of the SSA, it is not the Court’s function to “determine de

novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998).

Rather, the Court “is limited to determining whether the SSA’s conclusions were supported by

substantial evidence in the record and were based on a correct legal standard.” Talavera v. Astrue,

697 F.3d 145, 151 (2d Cir. 2012) (citing 42 U.S.C. § 405(g)) (other citation omitted).

The Commissioner’s decision is “conclusive” if it is supported by substantial evidence. 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.” Moran v. Astrue,

569 F.3d 108, 112 (2d Cir. 2009) (citations omitted).

DISCUSSION

Hunter argues that the Court should remand this case because the Appeals Council erred

when it rejected the opinion of his treating physician, David M. Thomas, M.D., without providing

good reasons for doing so. ECF No. 8-1 at 13-17. The Court agrees.

On February 20, 2017, approximately four months after the ALJ rendered his decision, Dr.

Thomas completed a Physical Residual Functional Capacity (“RFC”)3 Questionnaire wherein he

evaluated Hunter’s ability to work. Tr. 10-13. Hunter submitted this opinion to the Appeals

Council with his request for review.

A claimant can submit additional evidence to the Appeals Council if certain requirements

are met. See 20 C.F.R. § 416.1470. The evidence must be new and material, relate to the period

“on or before the date of the hearing decision,” and create a reasonable probability that it would

“change the outcome of the decision.” Id. § 416.1470(a)(5). The claimant must also show good

3 A claimant’s RFC reflects his ability to perform physical or mental work activities on a sustained basis despite his

impairments. 20 C.F.R. § 416.920(e)-(f).

cause for not submitting the evidence sooner. Id. § 416.1470(b). Here, the Appeals Council

rejected Dr. Thomas’s opinion solely because it is dated February 20, 2017 and the ALJ decided

Hunter’s case on October 31, 2016, and therefore it “does not relate to the period at issue.” Tr. 4.

This explanation was insufficient. As a general matter, when the SSA does not adequately

explain the rationale for a decision, the Court “cannot provide meaningful judicial review.” Jones

v. Barnhart, No. CV-04-2772, 2004 WL 3158536, at *7 (E.D.N.Y. Feb. 3, 2004). Under the

treating physician rule, there is a heightened need for explanation when an ALJ reviews a treating-

source opinion. Under that rule, an ALJ must give controlling weight to a treating physician’s

opinion when it is “well-supported by medically acceptable clinical and laboratory diagnostic

techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R.

§ 416.927(c)(2); see also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). An ALJ

may discount a treating physician’s opinion if it does not meet this standard, but he must

“comprehensively set forth [his] reasons for the weight assigned to a treating physician’s opinion.”

Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004) (per curiam); see also 20 C.F.R. §

416.927(c)(2) (“We will always give good reasons in our notice of determination or decision for

the weight we give [the claimant’s] treating source’s opinion.”).

The treating physician rule applies both to the ALJ and the Appeals Council.4 See Durrant

v. Berryhill, No. 16-CV-6781, 2018 WL 1417311, at *4 (W.D.N.Y. Mar. 22, 2018) (collecting

cases); Brown v. Comm’r of Soc. Sec., No. 17-CV-1107, 2019 WL 2441862, at *4 (W.D.N.Y. June

12, 2019) (same). Consequently, like the ALJ, the Appeals Council must provide an “explicit

4 “The Second Circuit has not squarely addressed the Appeals Council’s obligation to apply the treating physician rule

when it denies review”; however, “evidence submitted to the Appeals Council becomes part of the administrative

record subject to judicial review.” Hissin v. Comm’r of Soc. Sec., No. 17-CV-1264-FPG, 2019 WL 4253899, at *3

n.2 (W.D.N.Y. Sept. 9, 2019) (quotation mark and citation omitted). If the Appeals Council did not have to give good

reasons for rejecting a treating physician’s opinion, the Court would have to “apply the treating physician analysis” in

the first instance, when that analysis “must initially be applied by the Commissioner.” Patrick M. v. Saul, No. 18-

CV-290, 2019 WL 4071780, at *7 (N.D.N.Y. Aug. 28, 2019).

analysis” of the treating physician’s opinion and cannot reject it with boilerplate language. See

Patrick M. v. Saul, No. 18-CV-290, 2019 WL 4071780, at *7 (N.D.N.Y. Aug. 28, 2019) (Appeals

Council violated treating physician rule when it stated only that treating-source opinion “does not

show a reasonable probability that it would change the outcome of the decision”).

Moreover, “[m]edical evidence generated after an ALJ’s decision cannot be deemed

irrelevant solely based on timing.” Pulos v. Comm’r of Soc. Sec., No. 1:18-CV-00248 EAW, 2018

WL 5801551, at *6 (W.D.N.Y. Nov. 5, 2018) (citing Pollard v. Halter, 377 F.3d 183, 193 (2d Cir.

2004)). This is because the evidence “may demonstrate that ‘during the relevant time period, [the

claimant’s] condition was far more serious than previously thought.’” Id. (quoting Newbury v.

Astrue, 321 F. App’x 16, 18 n.2 (2d Cir. 2009) (summary order)).

Despite the Appeals Council’s assertion to the contrary, it appears that Dr. Thomas’s

opinion relates to the period at issue. First, it was rendered less than four months after the ALJ

issued his decision, and there is no indication that Hunter’s condition worsened or changed during

that time. Second, although Dr. Thomas does not explicitly cite the relevant period, he indicates

that he treated Hunter every six-to-twelve months since 2009. He also refers to Hunter’s hip, back,

knee, and foot pain, which the ALJ found to be severe impairments5 and the record reveals were

ongoing for many years.

The Appeals Council’s cursory rejection of Dr. Thomas’s opinion was harmful to Hunter

because it could have changed the outcome of his case. Dr. Thomas opined that Hunter’s

impairments imposed significant limitations on his ability to work, in stark contrast to the findings

5 At step two of the five-step disability analysis, see 20 C.F.R. § 416.920(a)(4), an ALJ determines whether the

claimant has “a severe medically determinable physical or mental impairment that meets the duration requirement …

and significantly limits the claimant’s ability to do basic work activities.” Williams v. Berryhill, No. 16-CV-00807-

LGF, 2018 WL 4501062, at *3 (W.D.N.Y. Sept. 20, 2018) (citations and quotation mark omitted).

the ALJ made in his RFC determination. This is particularly significant because there is no other

record medical opinion as to Hunter’s functional ability to work.6 The ALJ also denied Hunter’s

claim in part because “there [was] no opinion given at any point in the record to suggest that [he]

was disabled for a twelve-month period.” Tr. 26. In his assessment, however, Dr. Thomas opined

that Hunter’s impairments have lasted or can be expected to last at least twelve months. Tr. 10.

Thus, proper consideration of Dr. Thomas’s opinion could have led to a more restrictive RFC

determination or a finding of disability.

The Commissioner offers several reasons why Dr. Thomas’s opinion should be rejected,

see ECF No. 15-1 at 26-27, but the Commissioner cannot substitute her own rationale when the

Appeals Council failed to provide one. See Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (“A

reviewing court may not accept appellate counsel’s post hoc rationalizations for agency action.”).

Accordingly, the Court finds that the Appeals Council violated the treating physician rule

in its consideration of Dr. Thomas’s opinion and therefore remand is required. See Patrick M.,

2019 WL 4071780, at *7 (“When the Appeals Council has not properly applied the treating

physician rule in analyzing new evidence submitted to it, the remedy [is] a remand to an ALJ so

that he or she can properly support analysis under that rule.”). In light of this determination, the

Court does not reach Hunter’s remaining argument.

6 Mario D. Santilli, M.D., completed a Physical RFC Questionnaire on June 2, 2015, just two months after Hunter had

right knee surgery. Tr. 304-08. Dr. Santilli did not specifically assess Hunter’s ability to perform work-related

activities; instead, he indicated that Hunter was “totally disabled” but that his prognosis was “good.” Id.

CONCLUSION

Hunter’s Motion for Judgment on the Pleadings (ECF No. 8) is GRANTED, the

Commissioner’s Motion for Judgment on the Pleadings (ECF No. 15) is DENIED, and this matter

is REMANDED to the Commissioner for further administrative proceedings consistent with this

opinion pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d 117, 124

(2d Cir. 2000). The Clerk of Court will enter judgment and close this case.

IT IS SO ORDERED.

Dated: October 16, 2019 fo JI (|

Rochester, New York Hh UL four

Lon FRANK P. GE Kf “1, JR.

“href Judge

United States District Court