# McMinn v. Commissioner of Social Security

> District Court, W.D. New York · November 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10361484

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10361484

## How later opinions describe it (automated extraction)

- holding that review of the Secretary’s decision is not de novo and that the Secretary’s findings are conclusive if supported by substantial evidence

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PAMELA M. MCMINN,

Plaintiff,

v.
18-CV-842-HKS
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Defendant.

DECISION AND ORDER
Plaintiff Pamela McMinn brings this action pursuant to the Social Security
Act (“the Act”) seeking review of the final decision of Acting Commissioner of Social
Security (the “Commissioner”), which denied her applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the
Act. Dkt. No. 1. This Court has jurisdiction over this action under 42 U.S.C. § 405(g)
and the parties have consented to the disposition of this case by a United States
magistrate judge pursuant to 28 U.S.C. § 636(c). Dkt. No. 18.

Both parties have moved for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). Dkt. Nos. 12, 15. For the reasons set forth
below, Plaintiff’s motion (Dkt. No. 12) is granted, and the defendant’s motion (Dkt. No.
15) is denied.
BACKGROUND
On June 14, 2014, the plaintiff protectively filed applications for DIB and
SSI with the Social Security Administration (“SSA”) alleging disability since March 28,
2014, due to depression, high blood pressure, a heart problem and insomnia. Tr.1,2 22

441, 451. On August 20, 2014, the plaintiff’s claims were initially denied by the SSA.
Tr. 317-329. On March 9, 2017, Plaintiff appeared with an attorney and testified before
Administrative Law Judge, Stephen Cordovani (“the ALJ”). Tr. 267-316. A vocational
expert (“VE”) also testified during the hearing. Id. On May 8, 2017, the ALJ issued a
decision finding the plaintiff not disabled within the meaning of the Act. Tr. 12-31.
Plaintiff timely requested review of the ALJ’s decision and submitted additional
evidence, which the Appeals Council denied on February 23, 2018. Tr. 1-6. Thereafter,
the plaintiff commenced this action seeking review of the Commissioner’s final decision.
Dkt. No. 1.

LEGAL STANDARD
I. District Court Review
“In reviewing a final decision of the SSA, this 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) (quotation marks omitted); see also 42 U.S.C. § 405(g). The
Act holds that a decision by the Commissioner is “conclusive” if it is supported by

1 References to “Tr.” are to the administrative record in this matter. Dkt No. 8.
2 Plaintiff originally alleged an onset date of November 5, 2013 but requested that date be
amended to March 28, 2014. Tr. 420-422.
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)
(quotation marks omitted). 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) (quotation
marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860
(2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and that
the Secretary’s findings are conclusive if supported by substantial evidence).

II. Disability Determination
An ALJ must follow a five-step process to determine whether an individual
is disabled under the Act. See Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). At
step one, the ALJ must determine whether the claimant is engaged in substantial gainful
work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,

the ALJ proceeds to step two and determines whether the claimant has an impairment,
or combination of impairments, that is “severe” within the meaning of the Act, meaning
that it imposes significant restrictions on the claimant’s ability to perform basic work
activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment
or combination of impairments, the analysis concludes with a finding of “not disabled.” If
the claimant does, the ALJ continues to step three.

At step three, the ALJ examines whether a claimant’s impairment meets or
medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of
Regulation No. 4 (the “Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or
medically equals the criteria of a Listing and meets the durational requirement (20
C.F.R. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant’s
residual functional capacity (“RFC”), which is the ability to perform physical or mental

work activities on a sustained basis, notwithstanding limitations for collective
impairments. See 20 C.F.R. § 404.1520(e)-(f).

The ALJ then proceeds to step four and determines whether the
claimant’s RFC permits him or her to perform the requirements of his or her past
relevant work. 20 C.F.R. § 404.1520(f). If the claimant can perform such requirements,
then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth
and final step, wherein the burden shifts to the Commissioner to demonstrate that the
claimant “retains a residual functional capacity to perform the alternative substantial
gainful work which exists in the national economy” in light of his or her age, education,

and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation
marks omitted); see also 20 C.F.R. § 404.1560(c).

DISCUSSION
I. The ALJ’s Decision
The ALJ’s decision analyzed the plaintiff’s claim for benefits under the
process described above. First, the ALJ found the plaintiff met insured status
requirements of the SSA through December 31, 2017. Tr. 22. At step one, the ALJ
found that the plaintiff had not engaged in substantial gainful activity since March 28,
2014, the amended alleged onset date. Id. At step two, the ALJ found the plaintiff has
the following severe impairments: coronary artery disease status post myocardial
infarction with stenting; right carpal tunnel syndrome; major depressive disorder; anxiety
disorder; and personality disorder. Id. At step three, the ALJ found that the plaintiff’s

impairments, alone or in combination, did not meet or medically equal any listings
impairment. Id.

Next, the ALJ determined the plaintiff retained the RFC to perform light
work with additional limitations.3 Tr. 24. Specifically, she can frequently handle and
finger with the right dominant hand; can frequently climb ramps and stairs but can never
climb ladders/ropes/scaffolds; can occasionally kneel, crouch, crawl; can perform no
work around unprotected heights or dangerous moving mechanical parts. Id. The ALJ
also found Plaintiff can understand, remember and carry out simple and routine
instructions and tasks; is able to work in a low-stress environment defined as involving

no supervisory duties, no independent decision-making, no strict production quotas, and
minimal changes in work routine and processes; and can tolerate frequent interaction
with supervisors, co-workers and the general public. Id.

3 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine that he or she
can also do sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567
At step four, the ALJ relied on the VE’s testimony and found that the
plaintiff was unable to perform her past relevant work as a “Telemarketer” (DOT
#299.357-014) Specific Vocational Preparation (“SVP”) level of 3, with a sedentary level
of exertion, noting that Plaintiff is limited to unskilled work. Tr. 27. At step five, the ALJ

considered the plaintiff’s age (49 on the amended alleged disability onset date); high
school education; ability to communicate in English; work experience; RFC; and
concluded based on the VE’s testimony that the plaintiff was capable of performing
other work that existed in significant numbers in the national economy. Tr. 28.
Specifically, the ALJ found the plaintiff could perform the following unskilled SVP 2 jobs
requiring a light level of exertion: “Mail Clerk” (DOT 209.687-026); “Merchandise
Marker” (DOT 209.587-034); and “Cleaner/Housekeeper” (DOT 323.687-014). Id.
Accordingly, the ALJ found the plaintiff was not disabled from March 28, 2014, through
May 8, 2017. Tr. 29.

II. Analysis
Plaintiff argues that remand is warranted because additional material
evidence she submitted to the Appeals Council rendered the ALJ’s decision
unsupported by substantial evidence. Dkt. No. 12, at 14. 4 The Commissioner
contends the decision is supported by substantial evidence, free from harmful legal
error and should be affirmed. Dkt. No. 15 at 3.

4 Plaintiff presents other arguments in favor of remanding this matter. Dkt. No. 12, at 17, 24, 26.
However, because this Court finds remand is warranted based on the Appeals Council’s error,
those arguments are not addressed.
A. Additional Evidence Submitted to the Appeals Council warrants remand.

“[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 decision.” Perez v. Chater, 77 F.3d 41, 45 (2d
Cir.1996). The Appeals Council will review a case if it receives new and material
evidence that relates to the period on or before the date of the hearing decision, and if
there is a reasonable probability that the evidence would change the outcome of the
decision. 20 C.F.R. §§ 404.970(b), 416.1470 (b). “If the Appeals Council denies review
of a case, the ALJ’s decision, and not the Appeal’s Council’s, is the final agency

decision.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (per curiam). However,
in reviewing the Commissioner’s decision, this Court must consider the substantiality of
the ALJ’s decision in light of the entire record, including the evidence considered by the
ALJ and the evidence submitted to the Appeals Council. See Perez, 77 F.3d 41, 45-46
(2d Cir. 1996) (emphasis added). If the additional evidence submitted to the Appeals
Council is consistent with the ALJ’s findings, then the decision should be affirmed. See
id. at 47. When the additional evidence submitted to the Appeals Council undermines
the ALJ’s decision, so that it is no longer supported by substantial evidence, remand is
required. Lavango v. Berryhill, No. 16-CV-106-FPG, 2017 WL 2129491, at *3
(W.D.N.Y. May 17, 2017) ((citing Brown v. Apfel, 174 F.3d 59, 65 (2d Cir. 1999)).

In its decision denying review, the Appeals Council addressed the
additional evidence submitted by Plaintiff, including medical record evidence from
Andrew C. Hilburger, M.D. (“Dr. Hilburger”), dated January 12, 2016. Tr. 2. The
Appeals Council concluded that the January 12, 2016, record from Dr. Hilburger “did not
show a reasonable probability that it would change the outcome of the decision.” Tr. 2.

Here, Plaintiff contends the Appeals Council’s conclusion is not supported

by substantial evidence where the VE testified that an individual who was limited to only
occasional handling and fingering with the right dominant hand would be unable to
perform work as a “Mail Clerk,” “Merchandise Marker” or “Cleaner/Housekeeping,”5
which the ALJ found Plaintiff retained the RFC to perform. Dkt. No. 12 (citing Tr. 310-
311). However, in making his RFC determination, the ALJ did not have access to the
Physical Assessment Dr. Hilburger prepared for Plaintiff on January 12, 2016. In that
assessment, Dr. Hilburger specifically opined Plaintiff could only grasp, twist, and turn
objects with her right hand for twenty-five percent of an eight-hour workday; and could
only finger with her right hand for fifty percent of an eight-hour workday. Tr. 40-41. In
his decision, the ALJ accorded significant weight to Dr. Hilburger’s January 13, 2016,

statement that Plaintiff would need to “avoid repetitive grasping, turning and holding
objects with the right hand,”, as he found it was consistent with her carpal tunnel
diagnosis, treatment and symptoms. Tr. 27.6 Plaintiff asserts Dr. Hilburger’s Physical
Assessment details her limitations in handling and fingering with her right hand and

5 The VE testified that the positions of “Mail Clerk,” “Merchandise Marker” and
“Cleaner/Housekeeping” require frequent handling and fingering. Tr. 310.
6 Here, the Court notes that the ALJ relied on exhibit 21F, which states, “To whom it may
concern: I treat Ms. McMinn for right carpal tunnel syndrome. She is unable to use her right
hand repetitively for grasping, turning or holding objects.” Tr. 786. The January 12, 2016
record that Plaintiff submitted to the Appeals Council is a two-page Physical Assessment
comprised of seven specific questions assessing Plaintiff’s physical functioning and includes a
break-down of the percentage of time Plaintiff can perform repetitive reaching, handling or
fingering. Tr. 40-41.
contradicts the ALJ’s RFC determination that she is capable of frequent handling and
fingering with her right dominant hand. As a treating physician, the SSA’s regulations
instruct the ALJ to accord Dr. Hilburger’s opinion “controlling weight” as long as it is
“well-supported by medically acceptable … techniques and is not inconsistent with the

other substantial evidence in [the record].” See Lesterhuis, 805 F.3d at 88 (internal
citations omitted). Furthermore, the VE testified that an individual who is limited to only
occasional handling and fingering with the right dominant hand would be unable to
perform the jobs the ALJ designated for Plaintiff.

The Commissioner argues that the Appeals Council did not have to
consider Dr. Hilburger’s opinion because it was not “new” evidence where the opinion
was available to Plaintiff before the ALJ rendered his decision, but Plaintiff failed to
submit at the initial hearing level and has failed to demonstrate “good cause” for her
failure to do so. Dkt. No. 15 at 6-7. (citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir.

1988); Lisa v. Sec’y of Dept. of Health and Human Services of U.S., 950.F.2d 40, 45 (2d
Cir. 1991). The Commissioner’s argument is misplaced where both of the cases she
relies upon involve evidence that was submitted to the District Court after the
Commissioner’s final decision was rendered. See Tirado, 842 F.2d at 597; Lisa, 950
F.2d at 44. Although Plaintiff’s hearing counsel omitted the record at the initial hearing
level, counsel retained by Plaintiff subsequent to the administrative hearing presented
the evidence to the Appeals Council, therefore, it is properly within this Court’s review.
See Perez, 77 F.3d 41, at 45-46.
The ALJ’s decision, as it stands, is unsupported by substantial evidence in
light of the medical record before the ALJ and the additional records the plaintiff
submitted to the Appeals Council. The Appeals Council erred in concluding that Dr.
Hilburger’s Physical Assessment of Plaintiff does not show a reasonable probability that

it would change the outcome of the decision. Accordingly, this matter shall be remanded
to the Commissioner to reevaluate Plaintiff’s claim, considering all the evidence relevant
to determining her disability. See Lavango, 16-CV-106-FPG, 2017 WL 2129491, at *5.

CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (Dkt. No. 12) is
GRANTED and the defendant’s Motion for Judgment on the Pleadings (Dkt. No. 15) is
DENIED and this matter is REMANDED to the Commissioner for further administrative
proceedings consistent with this opinion. The Clerk of Court is directed to enter
judgment and close this case.

SO ORDERED.
DATED: Buffalo, New York
November 5, 2019

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361484. Public record. Not legal advice.