Fleming v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

___________________________________

PAMELA LOUISE FLEMING,

Plaintiff, DECISION AND ORDER

v.

1:19-CV-00028 EAW

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________

INTRODUCTION

Represented by counsel, plaintiff Pamela Louise Fleming (“Plaintiff”) brings this

action pursuant to Title XVI of the Social Security Act (the “Act”), seeking review of the

final decision of the Commissioner of Social Security (the “Commissioner,” or

“Defendant”) denying her application for supplemental security income (“SSI”). (Dkt. 1).

This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

Presently before the Court are the parties’ cross-motions for judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 11; Dkt.

16), and Plaintiff’s reply (Dkt. 17). For the reasons discussed below, Plaintiff’s motion

(Dkt. 11) is granted, the Commissioner’s motion (Dkt. 16) is denied, and the matter is

remanded to the Commissioner for further administrative proceedings consistent with this

Decision and Order.

BACKGROUND

Plaintiff protectively filed her application for SSI on June 26, 2015. (Dkt. 5 at 187).1

In her application, Plaintiff alleged disability beginning June 23, 2014, due to the following

impairments: arthritis; diabetes; depression; breathing problems; chronic knee pain;

chronic hip pain; nerve damage in feet; chronic pain in bilateral feet; carpel tunnel

syndrome; high cholesterol; chronic pain in right elbow; arthritis; chronic obstructive

pulmonary disease (“COPD”); arthritis in lower back; panic attacks; and sleep disorder.

(Id. at 178-79).

Plaintiff’s application was initially denied on September 22, 2015. (Id. at 196-207).

At Plaintiff’s request, a hearing was held before administrative law judge (“ALJ”) Mary

Mattimore in Buffalo, New York, on October 6, 2017. (Id. at 130-77). On December 4,

2017, the ALJ issued an unfavorable decision. (Id. at 112-29). Plaintiff requested Appeals

Council review; her request was denied on November 13, 2018, making the ALJ’s

determination the Commissioner’s final decision. (Id. at 5-8). This action followed.

LEGAL STANDARD

I. District Court Review

“In reviewing a final decision of the [Social Security Administration (“SSA”)], this

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

1 When referencing the page number(s) of docket citations in this Decision and Order,

the Court will cite to the CM/ECF-generated page numbers that appear in the upper

righthand corner of each document.

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). The Act holds that a decision by the Commissioner 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)

(quotation 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

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). However, “[t]he

deferential standard of review for substantial evidence does not apply to the

Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003)

(citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

II. Disability Determination

An ALJ follows a five-step sequential evaluation to determine whether a claimant

is disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467,

470-71 (1986). At step one, the ALJ determines whether the claimant is engaged in

substantial gainful work activity. See 20 C.F.R. § 416.920(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,

in that it imposes significant restrictions on the claimant’s ability to perform basic work

activities. Id. § 416.920(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 have at least one severe impairment, 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”). Id. § 416.920(d). If the impairment meets or medically

equals the criteria of a Listing and meets the durational requirement (id. § 416.909), 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 the collective impairments. See id. § 416.920(e).

The ALJ then proceeds to step four and determines whether the claimant’s RFC

permits the claimant to perform the requirements of his or her past relevant work. Id.

§ 416.920(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 show that the claimant is not disabled. Id. § 416.920(g). To

do so, the Commissioner must present evidence to demonstrate that the claimant “retains a

residual functional capacity to perform alternative substantial gainful work which exists in

the national economy” in light of the claimant’s age, education, and work experience. Rosa

v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted).

DISCUSSION

I. The ALJ’s Decision

In determining whether Plaintiff was disabled, the ALJ applied the five-step

sequential evaluation set forth in 20 C.F.R. § 416.920. At step one, the ALJ noted that

Plaintiff had worked after the application date on a part-time basis but that such work

activity did not rise to the level of substantial gainful work activity. (Dkt. 7 at 117).

Consequently, the ALJ determined that Plaintiff had not engaged in substantial gainful

work activity since June 26, 2015, the application date. (Id.).

At step two, the ALJ found that Plaintiff suffered from the severe impairments of:

“knee pain; hip pain; nerve damage and pain in the feet; diabetic neuropathy; carpal tunnel

syndrome; arthritis; morbid obesity; bilateral tennis elbow; and COPD.” (Id.). The ALJ

further found that Plaintiff’s medically determinable impairments of high cholesterol,

diabetes, hypertension, plantar fascial fibromatosis, bone spur, gastroesophageal reflux

disease, gout, and anxiety were non-severe. (Id. at 117-19).

At step three, the ALJ found that Plaintiff did not have an impairment or

combination of impairments that met or medically equaled the severity of any Listing. (Id.

at 119-20). The ALJ particularly considered the criteria of Listings 1.02 and 3.02 in

reaching her conclusion, as well as considering the effect of Plaintiff’s obesity as required

by SSR 02-1p. (Id.).

Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC

to perform sedentary work as defined in 20 C.F.R. § 416.967(a), with the additional

limitations that:

except for 10 to 15 percent of the workday, [Plaintiff] can climb stairs, ramps,

ladders, ropes, or scaffolds; balance; stoop; kneel; crouch; and crawl; and she

can have no exposure to dust, smoke, gas, odors, other pulmonary irritants

and poor ventilation.

(Id. at 120-24). At step four, the ALJ found that Plaintiff had no past relevant work. (Id.

at 124).

At step five, the ALJ relied on the testimony of a vocational expert (“VE”) to

conclude that, considering Plaintiff’s age, education, work experience, and RFC, there

were jobs that exist in significant numbers in the national economy that Plaintiff could

perform, including the representative occupations of food and beverage order clerk, charge

account clerk, and call out operator. (Id. at 124-25). Accordingly, the ALJ found that

Plaintiff was not disabled as defined in the Act. (Id. at 125).

II. Remand of this Matter for Further Proceedings is Necessary

Plaintiff asks the Court to reverse or, in the alternative, remand this matter to the

Commissioner, arguing: (1) the Appeals Council improperly rejected additional medical

evidence of Plaintiff’s June 2018 total right hip replacement surgery; and (2) the RFC is

unsupported by substantial evidence because it is based on the ALJ’s lay interpretation of

bare medical findings and because the ALJ improperly weighed the medical opinions of

consultative examiner Dr. Hongbiao Liu and Plaintiff’s treating physician Dr. Saleha Butt.

(Dkt. 11-1). The Court has considered each of these arguments and, for the reasons

discussed below, finds that the Appeals Council erred in rejecting evidence of Plaintiff’s

hip replacement surgery, and that this error necessitates remand for further administrative

proceedings.

A. Appeals Council Review

Following her administrative hearing, Plaintiff submitted additional evidence

documenting her total right hip replacement surgery on June 15, 2018. (See Dkt. 7 at

13-106). The Appeals Council stated that the report did not relate to the period of disability

at issue, and therefore did not affect the decision as to whether Plaintiff was disabled

beginning on or before December 4, 2017. (Id. at 6). Plaintiff argues remand is necessary

because such evidence “directly undermined the ALJ’s determination and related to the

period at issue with regard to Plaintiff’s severe hip condition, which was so severe that it

necessitated a total replacement, and a condition which makes the ALJ’s finding that

Plaintiff could perform sedentary work completely baseless.” (Dkt. 11-1 at 15).

The Appeals Council must consider “new” and “material” evidence if it “relates to

the period on or before the date of the administrative law judge hearing decision” and there

is “reasonable probability that the additional evidence would change the outcome of the

decision.” 20 C.F.R. § 404.970(a)(5). Medical evidence generated after an ALJ’s decision

cannot be deemed irrelevant solely based on timing. Pollard v. Halter, 377 F.3d 183, 193

(2d Cir. 2004). “For example, subsequent evidence of the severity of a claimant’s condition

may demonstrate that ‘during the relevant time period, [the claimant’s] condition was far

more serious than previously thought.’” Newbury v. Astrue, 321 F. App’x 16, 18 n.2 (2d

Cir. 2009) (quoting Pollard, 377 F.3d at 193)). However, evidence that does not provide

additional information about the claimant’s functioning during the relevant time period,

but instead relates to his or her functioning at some later point in time, need not be

considered by the Appeals Council. See Pulos v. Comm’r of Soc. Sec., 346 F. Supp. 3d

352, 362 (W.D.N.Y. 2018).

Here, the newly submitted evidence details Plaintiff’s June 2018 right hip

replacement surgery. (See Dkt. 7 at 13-106). The Appeals Council summarily rejected the

new evidence, stating:

The Administrative Law Judge decided your case through December 4, 2017.

This additional evidence does not relate to the period at issue. Therefore, it

does not affect the decision about whether you were disabled beginning on

or before December 4, 2017.

(Id. at 6). To the extent that the Appeals Council rejected the evidence solely because the

records postdated the ALJ’s decision, the Appeals Council erred as a matter of law because

“[a]dditional 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 v. Colvin, No. 12-CV-6475, 2013 WL

3784155, at *3 (W.D.N.Y. July 18, 2013) (citing Brown v. Apfel, 174 F.3d 59, 64-65 (2d

Cir. 1999)). Here, Plaintiff’s surgery took place just six months after the ALJ’s decision

and pertains to her hip condition, which she previously complained of. Accordingly, the

evidence at issue relates to the relevant time period.

The records “were also material in the sense that, if considered by the Appeals

Council, they would have undermined key aspects of the ALJ’s decision.” Wilbon v.

Colvin, No. 15-CV-756-FPG, 2016 WL 5402702, at *6 (W.D.N.Y. Sept. 28, 2016).

“Courts throughout the Second Circuit have held that evidence of a post-decision surgery

may be relevant and material to whether a claimant was previously disabled.” Id.; see also

Balke v. Barnhart, 219 F. Supp. 2d 319, 321-22 (E.D.N.Y. 2002) (remanding for

consideration of new evidence showing that plaintiff underwent three surgeries subsequent

to date of ALJ’s decision); Clemons v. Astrue, No. 12-CV-269, 2013 WL 4542730, at *7

(W.D.N.Y. Aug. 27, 2013) (remanding for consideration of new evidence consisting of

plaintiff’s arthroscopic surgery subsequent to date of ALJ’s decision). “This is especially

true where, as here, the ALJ discounted the claimant’s credibility.” Wilbon, 2016 WL

5402702, at *6.

In his decision, the ALJ noted that Plaintiff’s hearing testimony detailed her hip

pain. Plaintiff testified that because she was unable to bend, her son assists with laundry.

(Dkt. 7 at 155). Plaintiff also stated that she needs to sit or lean while washing the dishes

(id. at 156), and when at work, she lies and states that she has to use the bathroom in order

to take a break from standing (id. at 156-57). Plaintiff also noted that sitting for extended

periods of time caused her sharp hip pain. (Id. at 167). The ALJ also noted that imaging

revealed severe right hip degenerative changes and that various treatment records observed

Plaintiff to have severe hip pain with decreased range of motion. (Id. at 7; see also id. at

472-73 (Dr. Najmul H. Khan noted that x-ray of Plaintiff’s right hip joint shows severe

arthritis and observed severe pain in hip joints with decreased range of motion on right

side), 487 (x-ray of Plaintiff’s hip indicated severe right hip degenerative changes “with

marked superior joint space narrowing [and] subchondral sclerosis prominent osteophytic

spurring”)).

Despite acknowledging Plaintiff’s hearing testimony and the medical evidence in

the record consistent with her severe hip condition, the ALJ ultimately concluded that “a

review of the overall record does not support the extent to which [Plaintiff] alleges she is

limited.” (Id.). In significant part, the ALJ determined that Plaintiff’s “routine and

conservative” treatment weighed against a finding of disability because Plaintiff “only

received medication for her pain without injections or surgical referrals” and had not

“required emergency treatment or hospitalizations for her conditions.” (Id. at 122).

Moreover, the ALJ also rejected more severe limitations identified by Plaintiff’s treating

physician Dr. Butt, in part, based on Plaintiff’s routine and conservative treatment. (Id. at

124).

However, just a few months after the date of the ALJ’s decision, Plaintiff underwent

a total right hip replacement surgery. (See id. at 34). The surgeon’s operative note

observed “[s]ignificant erosion of the femoral head and acetabulum with significant

osteophyte formation around the acetabulum as well as the impinging femoral neck.” (Id.

at 48). Consequently, Plaintiff’s June 2018 surgery confirms the severity of Plaintiff’s

right hip condition and calls into question the factual predicate for the ALJ’s finding that

Plaintiff was not fully credible. In other words, the ALJ’s conclusion that Plaintiff’s

routine and conservative treatment was inconsistent with her allegations of disability and

the medical evidence in the record is undermined by Plaintiff’s surgery.

The Court is not persuaded by the Commissioner’s argument that remand is

unnecessary because the June 2018 surgery is “evidence of the subsequent deterioration of

the previously non-disabling condition.” (Dkt. 16-1 at 14). Plaintiff’s treatment records

consistently documented Plaintiff’s reports of severe hip pain and Plaintiff’s examinations

revealing severe arthritis and decreased range of motion in Plaintiff’s right hip. (See Dkt.

7 at 440-41, 469, 472-73, 483). As such, the surgery does not evidence a separate and

distinct deterioration of Plaintiff’s hip. Considering Plaintiff’s surgery took place just six

months after the date of the ALJ’s decision, the records at issue are material because they

undermine key aspects of the ALJ’s decision, including the ALJ’s credibility analysis and

rejection of limitations identified by Dr. Butt. Accordingly, remand on this basis is

warranted. See, e.g., Steven N. v. Berryhill, No. 1:17-cv-00427, 2018 WL 6629681, at *10

(W.D.N.Y. Dec. 19, 2018) (remand necessary to consider new evidence consisting of

doctor’s opinion that plaintiff’s condition deteriorated and required further surgery because

it undermined ALJ’s determination that plaintiff’s improvement was inevitable); Wilbon,

2016 WL 5402702, at *6 (remand necessary to consider new evidence consisting of

doctor’s report which documented plaintiff’s subsequent surgery and worsening condition

because it confirmed “[p]laintiff’s hearing testimony and undermine[d] the ALJ’s

credibility analysis”); Clemons, 2013 WL 4542730, at *7 (remand necessary to consider

new evidence consisting of MRI reports and subsequent arthroscopic surgery because such

evidence sheds new light on seriousness of plaintiff’s condition).

B. Plaintiff’s Remaining Arguments

As set forth above, Plaintiff has identified additional reasons why she contends the

ALJ’s decision was not supported by substantial evidence. However, because the Court

has already determined, for the reasons previously discussed, that remand of this matter for

further administrative proceedings is necessary, the Court declines to reach these issues.

See, e.g., Bell v. Colvin, No. 5:15-CV-01160 (LEK), 2016 WL 7017395, at *10 (N.D.N.Y.

Dec. 1, 2016) (declining to reach arguments “devoted to the question whether substantial

evidence supports various determinations made by [the] ALJ” where the court had already

determined remand was warranted); Morales v. Colvin, No. 13cv06844 (LGS) (DF), 2015

WL 2137776, at *28 (S.D.N.Y. May 4, 2015) (the court need not reach additional

arguments regarding the ALJ’s factual determinations “given that the ALJ’s analysis may

change on these points upon remand”).

CONCLUSION

For the foregoing reasons, Plaintiff's motion for judgment on the pleadings (DKt.

11) is granted to the extent that the matter is remanded to the Commissioner for further

administrative proceedings consistent with this Decision and Order. The Commissioner’s

motion for judgment on the pleadings (Dkt. 16) is denied. The Clerk of Court is directed

to enter judgment and close this case.

SO ORDERED.

J. f PAL_p □

ELIZABETH J? WOREORD’ ~

Hrited States District Judge

Dated: May 5, 2020

Rochester, New York

-12-