# Kraus v. Commissioner of Social Security

> District Court, W.D. New York · March 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10361946

## Case

- **Court:** District Court, W.D. New York
- **Decided:** March 23, 2020
- **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/10361946

## How later opinions describe it (automated extraction)

- noting that “the existence of a pre-existing disability can be proven by a retrospective opinion” if it “refer[s] clearly to the relevant period of disability” and does “not simply express an opinion as to the claimant’s current status”

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SARAH T. KRAUS,

Plaintiff,
Case # 18-CV-213-FPG
v.
DECISION AND ORDER
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION
Plaintiff Sarah T. Kraus brings this action pursuant to the Social Security Act seeking
review of the final decision of the Commissioner of Social Security that denied her applications
for Disability Insurance Benefits (“DIB”) under Title II of the Act and for Supplemental Security
Income (“SSI”) under Title XVI of the Act. ECF No. 1. The Court has jurisdiction over this action
under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 14, 19. For the reasons that follow, the Commissioner’s motion is
DENIED, Kraus’s motion is GRANTED, and this matter is REMANDED to the Commissioner
for further administrative proceedings consistent with this opinion.
BACKGROUND
Kraus applied with the Social Security Administration (the “SSA”) for DIB and SSI
alleging disability beginning in May 2002. Tr.1 24, 198, 327. Kraus claimed she is disabled due to
an impairment to her left knee, anxiety, depression, and a vomiting condition. Tr. 49–51. In June
2016, Kraus and a vocational expert (“VE”) appeared at a hearing before Administrative Law

1 “Tr.” refers to the administrative record in this matter. ECF No. 6.
Judge Brian LeCours (“the ALJ”). Tr. 24, 36. On August 1, 2016, the ALJ issued a decision finding
that Kraus was not disabled. Tr. 24–36. On December 5, 2017, the Appeals Council denied Kraus’s
request for review. Tr. 1–6. This action seeks review of the Commissioner’s final decision. ECF
No. 1.

LEGAL STANDARD
“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 omitted);
see also 42 U.S.C. §§ 405(g), 1383(c)(3). An ALJ must follow a five-step sequential evaluation
process to determine whether a claimant is disabled within the meaning of the Act. See Bowen v.
City of New York, 476 U.S. 467, 470–71 (1986); 20 C.F.R. § 416.920(a). After the ALJ issues her
decision, the claimant may request that the SSA’s Appeals Council review the decision. 20 C.F.R.
§§ 404.967, 416.1467. The Appeals Council must consider additional evidence that a claimant
submits if the claimant can show good cause for not submitting it to the ALJ; it is new, material,

and relates to the period on or before the ALJ’s decision; and there is a reasonable probability that
it would change the outcome of the decision. Simon v. Berryhill, No. 16-CV-4088, 2017 WL
4736732, at *2 (E.D.N.Y. Oct. 19, 2017); see also 20 C.F.R. §§ 404.970(a)(5), (b), 416.1470(a)(5),
(b).
Evidence is new if it is not cumulative of what is already in the record. Simon, 2017 WL
4736732, at *2. It is material if it is relevant to the claimant’s condition during the time period for
which benefits were denied and there is a reasonable probability that it would have influenced the
Commissioner to decide the claimant’s application differently. Webb v. Apfel, No. 98-CV-791,
2000 WL 1269733, at *14 (W.D.N.Y. Feb. 8, 2000) (citing Jones v. Sullivan, 949 F.2d 57, 60 (2d
Cir. 1991)).
As to whether the additional evidence relates to the period on or before the ALJ’s decision,
even “[m]edical evidence generated after an ALJ’s decision cannot be deemed irrelevant solely

based on timing.” Pulos v. Comm’r of Soc. Sec., 346 F. Supp. 3d 352, 362 (W.D.N.Y. 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) (alteration in Newbury)). But the Appeals Council does not have to consider
evidence that “does not provide additional information about the claimant’s functioning during the
relevant time period” and “instead relates to his or her functioning at some later point in time.” Id.
If the Appeals Council rejects additional evidence because it does not relate to the relevant period,
it “will send [the claimant] a notice that explains why it did not accept the additional evidence.”
20 C.F.R. §§ 404.970(c), 416.1470(c). 2

DISCUSSION
I. The ALJ’s Decision and Appeals Council Review
The ALJ analyzed Kraus’s claim for benefits under the sequential evaluation process and
concluded that Kraus was not disabled during the relevant period. Tr. 24–36. Following the ALJ’s
decision, Kraus requested that the Appeals Council remand the matter to an ALJ based on new

2 If the Appeals Council denies review after considering new evidence, the Court “review[s] the entire
administrative record, which includes the new evidence, and determine[s], as in every case, whether there
is substantial evidence to support the decision of the Secretary.” Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996). Here, however, the Appeals Council did not consider the new evidence. Accordingly, this Court
only must analyze whether the Appeals Council erred in rejecting the new evidence.
evidence. Tr. 405–06. The Appeals Council denied the request because if found that the “additional
evidence does not relate to the period at issue.” Tr. 2.
II. Analysis
Kraus argues that remand is required because the Appeals Council erred when it declined
to evaluate the opinion of Kraus’s treating psychologist.3 ECF No. 14-1 at 15–17; Tr. 34. The

Court agrees.
On December 28, 2016, less than five months after the ALJ issued his decision, Doctor
Jennifer A. Fendya completed a Mental Impairment Questionnaire on behalf of Kraus. Tr. 10–15,
36. Dr. Fendya opined that Kraus suffered from marked difficulties in social functioning and would
be absent from work three days per month, be unable to meet competitive standards with respect
to completing a normal workday without interruption or performing at a consistent pace without
an unreasonable number of rest periods, and be seriously limited with respect to maintaining
regular attendance and being punctual. Tr. 12–15. Dr. Fendya explained that she had seen Kraus
two to four times per month for over ten years. Tr. 10. When asked to list the earliest date of onset

for Kraus’s condition, Dr. Fendya explained that Kraus had knee surgery in 1992 and began
treatment with her in August 2002 following an injury Kraus suffered in May 2002. Tr. 15.
Although not expressly addressed by the Appeals Council, the Mental Health Impairment
Questionnaire is new because it did not exist until after the ALJ’s decision and therefore Kraus
had good cause for not submitting it to the ALJ. See Simon, 2017 WL 4736732, at *2 (“When
evidence submitted by the applicant did not exist at the time of the ALJ’s hearing, there is no
question that the evidence is new and that good cause existed for applicant’s failure to submit this
evidence to the ALJ.” (quotation and alterations omitted)). Dr. Fendya’s opinion presents a

3 Kraus also argues for reversal of the Commissioner’s decision on other grounds. ECF No. 14-1 at 11–15,
18–26. The Court will not reach those arguments because it remands based on the Appeals Council’s error.
reasonable probability of changing the ALJ’s disability determination because she opined that
Kraus would be absent from work three days per month, which the VE explained would render her
unemployable. Tr. 15, 102. Dr. Fendya also opined that Kraus had “marked” “[d]ifficulties in
maintaining social functioning,” which are unaccounted for in the ALJ’s RFC. Tr. 14, 31. Further,

there is no readily apparent basis for the Commissioner to reject Dr. Fendya’s opinion. The ALJ
gave Dr. Fendya’s June 2005 opinion “significant weight” and noted that she was Kraus’s “long-
time treating psychologist.” Tr. 34–35; see Brown v. Comm’r of Soc. Sec., No. 17-CV-1107, 2019
WL 2441862, at *2–4 (W.D.N.Y. June 12, 2019) (holding that a treating psychiatrist’s opinion
was material in similar circumstances).
The Appeals Council declined to consider Dr. Fendya’s opinion based entirely on its
conclusion that the opinion did not relate to the period prior to August 1, 2016. Tr. 2. The
Commissioner argues that this conclusion is supported by the record based on the face of Dr.
Fendya’s opinion and arguably conflicting opinions previously expressed by Dr. Fendya. ECF No.
19-1 at 9–13. The Commissioner’s first argument strains credulity beyond the breaking point. Dr.

Fendya’s opinion describes Kraus’s condition retrospectively, not currently, based on the over ten-
year treating relationship she maintained with Krauss. Tr. 10–15; see Vitale v. Apfel, 49 F. Supp.
2d 137, 142 (E.D.N.Y. 1999) (noting that “the existence of a pre-existing disability can be proven
by a retrospective opinion” if it “refer[s] clearly to the relevant period of disability” and does “not
simply express an opinion as to the claimant’s current status”). Aside from a few portions of the
opinion that are expressly limited in time (e.g., she assigned a “Current GAF” and “Highest GAF
Past Year”), Dr. Fendya provided no hint that her opinion was temporally limited. Tr. 10–15. In
fact, Dr. Fendya used past-tense language throughout her opinion. Id. Most importantly, Dr.
Fendya listed three dates in response to a question regarding the earliest onset date for Kraus’s
condition. Tr. 15. The latest date listed was August 2002 (the date she began treating Kraus). Id.4
This case contrasts markedly with Collins v. Comm’r of Soc. Sec., cited by the
Commissioner. 960 F. Supp. 2d 487, 501 (S.D.N.Y. Aug. 15, 2013). In that case, the court found

that newly created medical evidence did not relate to the relevant time period because “[n]one of
the medical professionals appear[ed] to have treated [the claimant] during the relevant time period
and none offer[ed] a retrospective opinion of his condition.” Id. Here, Dr. Fendya treated Kraus
for the vast majority of the relevant period and offered a retrospective opinion.
The Commissioner’s second argument (that Dr. Fendya’s earlier opinions demonstrate that
her December 2016 opinion did not apply prior to August 2016) must also be rejected. ECF No.
19-1 at 11–13. Even assuming her earlier opinions conflict with her December 2016 opinion, the
Commissioner must analyze and weigh Dr. Fendya’s December 2016 opinion in the first instance.
Hillman v. Comm’r of Soc. Sec., No. 18-CV-339, 2019 WL 4409334, at *4 (W.D.N.Y. Sept. 16,
2019); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“Genuine conflicts in the

medical evidence are for the Commissioner to resolve.”); Cichocki v. Astrue, 534 F. App’x 71, 75
(2d Cir. 2013) (summary order) (holding that ALJ properly discounted treating physician’s
medical source statement where it “conflicted with his own treatment notes”).

4 Even if Dr. Fendya’s diagnosis was strictly intended to apply as of December 28, 2016, her diagnosis
could still “shed[] considerable new light on the seriousness of [Kraus’s] condition” five months earlier.
See Lisa v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 40, 44 (2d Cir. 1991). The Commissioner
provides no explanation as to why Kraus’s impairments substantially and spontaneously worsened over that
five-month period—a particularly dubious proposition given Dr. Fendya’s repeatedly expressed opinion
that Kraus’s mental impairments are related to and exacerbated by decades-old injuries. Tr. 10–15. This
Court has also previously held that the Appeals Council’s “cursory, formulaic rejection of . . . evidence
simply because it was generated after the ALJ’s decision, without any legal or factual reasoning, [wa]s
insufficient.” Webster v. Colvin, 215 F. Supp. 3d 237, 243 (W.D.N.Y. 2016); see also 20 C.F.R. §§
404.970(c), 416.1470(c) (obligating Appeals Council to explain “why it did not accept . . . additional
evidence” if evidence does not relate to the relevant period). The Appeals Council’s decision here is equally
cursory, formulaic, and insufficient. Tr. 2.
Accordingly, for all the reasons stated, this matter must be remanded to the Commissioner
for reconsideration in light of the new evidence discussed above. See, e.g., Bluman v. Colvin, No.
15-CV-627, 2016 WL 5871346, at *4 (W.D.N.Y. Oct. 7, 2016) (remanding for reconsideration in
light of new evidence that the Appeals Council summarily rejected because it was created after the
ALJ’s decision).
CONCLUSION
For all of the reasons stated, the Commissioner’s Motion for Judgment on the Pleadings,
ECF No. 19, is DENIED and Kraus’s Motion for Judgment on the Pleadings, ECF No. 14, is
GRANTED. 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). The
Clerk of Court is directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: March 23, 2020
Rochester, New York

Wi P. 4..\) R.
Chief Judge
United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361946. Public record. Not legal advice.