Kudrick v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________________

JOHN JOSEPH KUDRICK,

Plaintiff,

v. 1:19-CV-1343

(WBC)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC KENNETH HILLER, ESQ.

Counsel for Plaintiff

6000 North Bailey Ave, Ste. 1A

Amherst, NY 14226

U.S. SOCIAL SECURITY ADMIN. DENNIS CANNING, ESQ.

OFFICE OF REG’L GEN. COUNSEL – REGION II PAMELA MCKIMENS, ESQ.

Counsel for Defendant

26 Federal Plaza – Room 3904

New York, NY 10278

William B. Mitchell Carter, U.S. Magistrate Judge,

MEMORANDUM-DECISION and ORDER

The parties consented, in accordance with a Standing Order, to proceed before

the undersigned. (Dkt. No. 10.) The court has jurisdiction over this matter pursuant

to 42 U.S.C. § 405(g). The matter is presently before the court on the parties’ cross-

motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of

Civil Procedure. For the reasons discussed below, Plaintiff’s motion is granted, and

Defendant’s motion is denied. The Commissioner’s decision is reversed and remanded

for calculation of benefits.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born in 1964. (T. 54.) He received a GED. (T. 36.) Generally,

Plaintiff’s alleged disability consists of emphysema, bipolar disorder, and adult attention

deficit disorder. (T. 152.) His alleged disability onset date is March 1, 2015. (T. 54.)

His date last insured is June 30, 2017. (Id.) His past relevant work consists of vending

machine operator, dishwasher, truck driver, and auto body technician. (T. 25)

B. Procedural History

On June 14, 2016, Plaintiff applied for Disability Insurance Benefits (“SSD”)

under Title II of the Social Security Act. (T. 54.) Plaintiff’s application was initially

denied, after which he timely requested a hearing before an Administrative Law Judge

(“the ALJ”). On July 25, 2018, Plaintiff appeared before the ALJ, Rosanne M. Dummer.

(T. 32-53.) On November 14, 2018, ALJ Dummer issued a written decision finding

Plaintiff not disabled under the Social Security Act. (T. 12-31.) On August 13, 2019, the

AC denied Plaintiff’s request for review, rendering the ALJ’s decision the final decision

of the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this

Court.

C. The ALJ’s Decision

Generally, in her decision, the ALJ made the following five findings of fact and

conclusions of law. (T. 17-27.) First, the ALJ found Plaintiff met the insured status

requirements through June 30, 2017 and Plaintiff had not engaged in substantial gainful

activity since March 1, 2015. (T. 17.) Second, the ALJ found Plaintiff had the severe

impairments of: emphysema/chronic obstructive pulmonary disease (“COPD”), and

partial left index finger amputation. (Id.) Third, the ALJ found Plaintiff did not have an

impairment that meets or medically equals one of the listed impairments located in 20

C.F.R. Part 404, Subpart P, Appendix. 1. (T. 19.) Fourth, the ALJ found Plaintiff had

the residual functional capacity (“RFC”) to perform unskilled light work as defined in 20

C.F.R. § 404.1567(b); he could:

sit six of eight hours, two hours at a time. He could stand/walk six of eight

hours, but only stand one hour at a time, and only walk thirty minutes at a

time. [Plaintiff] could occasionally reach overhead and occasionally

push/pull; he could frequently reach in other directions, and frequently

handle, finger, and feel. He could occasionally operate foot controls, climb

stairs/ramps, balance, stoop, and kneel. [Plaintiff] should never climb

ladders/scaffolds, crouch, crawl, work at unprotected heights, or work in

extremes of heat/cold. He should avoid more than occasional exposure to

pulmonary irritants (e.g., dust, odors, fumes). He could occasionally work

with moving mechanical parts, operate a motor vehicle, and tolerate

humidity and wetness. [Plaintiff] could tolerate loud (heavy traffic) noise.

(T. 19.)1 Fifth, the ALJ determined Plaintiff had no past relevant work; however, there

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

perform. (T. 25-27.)

II. THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION

A. Plaintiff’s Arguments

Plaintiff makes one argument in support of his motion for judgment on the

pleadings. Plaintiff argues the ALJ mischaracterized evidence of record in order to

discount Plaintiff’s credibility, which then allowed her to disregard the medical expert’s

1 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(b).

opinion that Plaintiff’s impairment met a Listing prior to Plaintiff’s date last insured. (Dkt

No. 7 at 11-15.) Plaintiff also filed a reply in which he deemed no reply necessary and

relied on his original arguments. (Dkt. No. 11.)

B. Defendant’s Arguments

In response, Defendant makes one argument. Defendant argues substantial

evidence supports the ALJ’s decision. (Dkt. No. 9 at 13-19.)

III. RELEVANT LEGAL STANDARD

A. Standard of Review

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v.

Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the

Commissioner’s determination will only be reversed if the correct legal standards were

not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,

817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether

the ALJ applied correct legal principles, application of the substantial evidence standard

to uphold a finding of no disability creates an unacceptable risk that a claimant will be

deprived of the right to have her disability determination made according to the correct

legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,

615 F.2d 23, 27 (2d Cir. 1979).

“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”

and has been defined as “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.

1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational

interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

“To determine on appeal whether the ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining evidence from both

sides, because an analysis of the substantiality of the evidence must also include that

which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

If supported by substantial evidence, the Commissioner’s finding must be

sustained “even where substantial evidence may support the plaintiff’s position and

despite that the court’s independent analysis of the evidence may differ from the

[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In

other words, this Court must afford the Commissioner’s determination considerable

deference, and may not substitute “its own judgment for that of the [Commissioner],

even if it might justifiably have reached a different result upon a de novo review.”

Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

B. Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine

whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R. §

404.1520. The Supreme Court has recognized the validity of this sequential evaluation

process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The

five-step process is as follows:

(1) whether the claimant is currently engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment or combination of

impairments; (3) whether the impairment meets or equals the severity of the

specified impairments in the Listing of Impairments; (4) based on a ‘residual

functional capacity’ assessment, whether the claimant can perform any of

his or her past relevant work despite the impairment; and (5) whether there

are significant numbers of jobs in the national economy that the claimant

can perform given the claimant's residual functional capacity, age,

education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

IV. ANALYSIS

A. The ALJ’s Analysis of Plaintiff’s Subjective Complaints

Plaintiff argues the ALJ mischaracterized evidence, stating Plaintiff stopped

working for non-disability reasons based upon a review of his earning summary and

improperly assessed Plaintiff’s subjective complaints. (Dkt. No. 7 at 11-15.)

In general, it is the function of the ALJ, not reviewing courts, “to resolve

evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,”

courts will defer to the ALJ’s determinations as long as they are supported by

substantial evidence. Aponte v. Sec'y, Dep't of Health & Human Servs., 728 F.2d 588,

591 (2d Cir. 1984) (internal quotation marks omitted); accord Selian v. Astrue, 708 F.3d

409, 420 (2d Cir. 2013). For the reasons outlined herein, the ALJ failed to properly

assess Plaintiff’s subjective complaints and the ALJ’s determination was not supported

by substantial evidence.

The ALJ must employ a two-step analysis to evaluate a plaintiff’s reported

symptoms. See 20 C.F.R. § 404.15292. First, the ALJ must determine whether, based

on the objective medical evidence, a plaintiff’s medical impairments “could reasonably

be expected to produce the pain or other symptoms alleged.” Id. § 404.1529(a).

2 Effective March 27, 2017, many of the regulations cited herein have been amended, as

have Social Security Rulings (“SSRs”). Nonetheless, because Plaintiff’s social security application was

filed before the new regulations and SSRs went into effect, the court reviews the ALJ's decision under the

earlier regulations and SSRs.

Second, if the medical evidence establishes the existence of such impairments, the ALJ

must evaluate the intensity, persistence, and limiting effects of those symptoms to

determine the extent to which the symptoms limit the claimant's ability to do work. See

id.

At this second step, the ALJ must consider: (1) plaintiff’s daily activities; (2) the

location, duration, frequency, and intensity of plaintiff’s pain or other symptoms; (3)

precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side

effects of any medication plaintiff takes or has taken to relieve his pain or other

symptoms; (5) other treatment plaintiff receives or has received to relieve his pain or

other symptoms; (6) any measures that plaintiff takes or has taken to relieve his pain or

other symptoms; and (7) any other factors concerning plaintiff’s functional limitations

and restrictions due to his pain or other symptoms. 20 C.F.R. § 404.1529(c)(3)(i)-(vii).

Here, the ALJ determined Plaintiff’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, his statements

concerning the intensity, persistence and limiting effects of these symptoms were not

entirely consistent with the medical evidence and other evidence in the record “for the

reasons explained in this decision.” (T. 21.) The ALJ reasoned, despite Plaintiff’s

assertion his breathing prevented him from working, “it appears that he did not work for

non-disability reasons, given no reported substantial gainful activity in years.” (T. 22.)

The ALJ further reasoned, “the objective evidence is sparse for the period under review”

and Plaintiff “does not yet use a nebulizer.” (Id.) The ALJ considered Plaintiff’s

activities of daily living, such as watching TV and his ability to perform self care, and

determined such activities do not indicate “work-precluding limitations.” (Id.) The ALJ

further concluded Plaintiff’s allegations of breathing difficulty was “inconsistent” with

Plaintiff’s activities of smoking. (T. 24.)

Overall, “the ALJ's adverse credibility finding, which was crucial to his rejection of

[Plaintiff’s] claim, was based on a misreading of the evidence, it did not comply with the

ALJ's obligation to consider all of the relevant medical and other evidence [under] 20

C.F.R. § 404.1545(a)(3).” Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010)3.

First, the ALJ erred in determining Plaintiff’s statements concerning work-

precluding breathing problems were inconsistent with treatment. To be sure, the

objective medical evidence during the relevant time period is “sparse.” (T. 22.) In

addition, an ALJ “is permitted to consider a Plaintiff's failure to seek treatment for

alleged disabilities when evaluating a Plaintiff's credibility with respect to statements of

the extent of the impairments.” Miller v. Colvin, 85 F. Supp. 3d 742, 755 (W.D.N.Y.

2015). However, an ALJ “will not find an individual's symptoms inconsistent with the

evidence in the record on this basis without considering possible reasons he or she may

not comply with treatment or seek treatment consistent with the degree of his or her

complaints.” SSR 16-3p. Here, the ALJ found Plaintiff’s symptoms inconsistent with his

failure to seek treatment without any consideration of possible reasons.

Second, the ALJ erred in her conclusion Plaintiff’s statements were inconsistent

with the record because Plaintiff continued to smoke despite his severe lung

impairments. (T. 21-22.) As stated above, although an ALJ may find a plaintiff less

credible if he fails to follow medical treatment, the ALJ is obligated to consider any

3 On March 28, 2016, SSR 16-3p superseded SSR 96-7p and eliminated the use of the term

“credibility” as the regulations do not use the term. SSR 16-3P (S.S.A. Mar. 16, 2016) (“we are eliminating the use

of the term ‘credibility’ from our sub-regulatory poly, as our regulations do not use this term”).

explanation a plaintiff may have for the failure. Here, the ALJ failed to consider any

explanation for Plaintiff’s failure to quit smoking. Suttles v. Colvin, 654 F. App'x 44, 46

(2d Cir. 2016); see also Goff v. Astrue, 993 F. Supp. 2d 114, 128 (N.D.N.Y. 2012)

(“[G]iven the addictive nature of smoking, the failure to quit is as likely attributable to

factors unrelated to the effect of smoking on a person’s health.”)(internal citation and

quotation marks omitted). Therefore, the ALJ erred in concluding Plaintiff’s statements

were inconsistent with his failure to receive treatment and his failure to quit smoking

without seeking any explanation from Plaintiff.

Third, the ALJ erred in her conclusion Plaintiff’s reported symptoms were

inconsistent with his medication regiment. (T. 22.) Although the ALJ should consider

treatment and medication in assessing a plaintiff’s subjective complaints under 20

C.F.R. § 404.1529(c)(3), it was inappropriate for the ALJ to conclude Plaintiff’s

statements were not credible because Plaintiff did not use a nebulizer. No medical

source prescribed a nebulizer and nowhere in the record was it indicated that a

nebulizer was an appropriate form of treatment for Plaintiff. The ALJ essentially

concluded Plaintiff’s symptoms were not as severe as alleged because he did not

receive the type of treatment she expected someone with his condition to receive. See

Wilson v. Colvin, 213 F. Supp. 3d 478, 490 (W.D.N.Y. 2016) (ALJ’s conclusion plaintiff

did not receive the type of treatment one would expect amounted to the ALJ playing

doctor). Therefore, the ALJ impermissibly substituted her own lay opinion in concluding

Plaintiff’s statements were not supported by treatment.

Lastly, the ALJ erred in her conclusion that Plaintiff’s symptoms were not as

severe as alleged because “it appears that he did not work for non-disability reasons,

given no reported substantial gainful activity in years.” (T. 22.) This is pure speculation.

The ALJ did not elaborate on her statement Plaintiff “appeared” to not work due to non-

disability reasons; indeed, she cited only to Plaintiff’s work history. (T. 22.) Therefore, it

is unclear how the ALJ reached this conclusion. Further, the ALJ’s statement that

Plaintiff had “no” substantial gainful activity “in years” is misplaced. (T. 22.) Plaintiff’s

last reported income was in 2015, close to Plaintiff’s alleged onset date of March 1,

2015 and application filing date of June 14, 2016. (T. 54, 148.) This is consistent with

Plaintiff’s testimony. At his 2018 hearing Plaintiff testified he last worked “about two

years ago,” but stopped because of his “breathing.” (T. 37.) Plaintiff informed

consultative examiner in August 2016 that he last worked “about six months ago” and

stopped working due to his inability to “keep up” and “shortness of breath.” (T. 229.)

The record indicates Plaintiff worked at substantial gainful employment levels

approximately one year before his application and Plaintiff consistently testified, he

stopped working due to his breathing impairment. Therefore, the ALJ’s statement, that

Plaintiff did not have substantial gainful activity “in years” and that he did not work for

non-disability reasons, was based on the ALJ’s speculation.

Overall, the ALJ erred in her assessment of Plaintiff’s statements of subjective

complaints. Although the ALJ provided reasons for discounting Plaintiff’s statements,

the ALJ relied on speculation, her own lay opinion, and the ALJ failed to seek

clarification from Plaintiff before discounting his statements based on failure to follow

treatment.

B. The ALJ’s Analysis of the Medical Expert’s Opinion

Plaintiff argues the ALJ’s improper justifications for finding Plaintiff’s statements

“not entirely consistent with the medical evidence and other evidence in the record”

were harmful because the medical expert stated if the ALJ found Plaintiff’s statements

to be credible, it would be appropriate to find Plaintiff’s impairments met Listing 3.02A

prior to Plaintiff’s date last insured. (Dkt. No. 7 at 15.) For the reasons outlined below,

the ALJ failed to properly assess the medical expert’s opinion at step three and her

determination was not supported by substantial evidence.

In general, for a plaintiff to be entitled to SSD benefits, he must meet the insured

status requirements of the Act. See 42 U.S.C. § 423(c); 20 C.F.R. §§ 404.130,

404.132. Plaintiff must establish that he became disabled on or before his date last

insured. See 20 C.F.R. § 404.131; see Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir.

1989). Here, the period at issue is from Plaintiff’s alleged onset date March 1, 2015

through the date last insured of June 30, 2017.

At step three of the sequential process the ALJ must determine whether

Plaintiff’s impairment or combination of impairments meets or medically equals the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.

§§ 404.1520(d), 404.1526 (“the Listings”). If Plaintiff’s impairments or combination of

impairments meets or medically equals the criteria of a Listing and meets the duration

requirement, Plaintiff is disabled. Id. § 404.1509.

Listing 3.02 covers chronic respiratory disorders due to any cause except cystic

fibrosis. 20 C.F.R. Part 404, Subpart P, App. 1, § 3.02. In order to meet or equal

Listing 3.02A a plaintiff’s pulmonary function testing (“PFT”) must be equal to or less

than the values specified in a table. Id. Here, a person Plaintiff’s age, sex, and height

meets the Listing requirements if FEV1 values are less than or equal to 1.85L. Id.

Medical expert, John Pella, M.D. completed two sets of medical interrogatories.

On August 9, 2018, Dr. Pella completed the first set. (T. 292-302.) When asked to

specify Plaintiff’s impairments for the period of March 1, 2015 through June 30, 2017,

Dr. Pella indicated Plaintiff suffered from COPD/emphysema and finger amputation. (T.

292.) Regarding Plaintiff’s COPD/emphysema, Dr. Pella cited results from a 2005 PFT,

the consultative examination in 2016 during which Plaintiff stated he could ambulate

three blocks and the examiner detected rhonchi on exam, and lastly he noted Plaintiff

did not seek ER treatment nor was he hospitalized during that time. (Id.) When asked

to specify Plaintiff’s impairments for the period of July 1, 2017 to present, Dr. Pella

indicated Plaintiff suffered from COPD/emphysema and finger amputation. (T. 293.)

Regarding Plaintiff’s COPD/emphysema, Dr. Pella cited results from a January 2018

PFT, examination results showing hyperinflation and rhonchi, no ER treatment or

hospitalization, and medication. (Id.)

When asked if any of Plaintiff’s impairments met or equaled a Listing for the

period of March 1, 2015 to June 30, 2017, Dr. Pella answered “no.” (T. 293.) Dr. Pella

wrote, “prior PFT early (2/05) no significant documentation until 1/18; presumed slow

deterioration of respiratory status over time period.” (Id.) When asked if Plaintiff’s

impairments met or equaled a Listing for the period of July 1, 2017 through present, Dr.

Pella checked “yes.” (Id.) Dr. Pella indicated Plaintiff met the requirements of Listing

3.02A based on the 2018 PFT results of FEV1 1.57L. (T. 294.) When asked the

“earliest date the listing(s) is met or equaled,” Dr. Pella wrote, “can medically support

onset of 7/1/17 in retrospect.” (Id.) When asked if “the statements and opinions

regarding physical limitations [are] supported by evidence in file,” Dr. Pella wrote

“symptoms partially credible but subjective; psychological issues may impact on

perception of dyspnea.” (T. 295.)

In August 2018, Dr. Pella also filled out a “Medical Source Statement of Ability to

do Work-Related Activities (Physical)” form. (T. 297-302.) Dr. Pella essentially

indicated Plaintiff could perform light work with additional non-exertional limitations.

(Id.)

On September 18, 2018, the ALJ sought clarification from Dr. Pella regarding his

August 2018 opinion. (T. 303.) Specifically, the ALJ asked if evidence in the record

supported an earlier onset than July 1, 2017, and if so, what date. (Id.) The ALJ

stressed the period of March 1, 2015 to June 30, 2017 was “critical” and asked for

clarification as to why or why not Listing level severity was met earlier than July 1, 2017.

(Id.)

In response to the ALJ’s additional question, Dr. Pella wrote:

[f]or the period prior to PFT 1/18 [6F15] there is limited objective testing to

meet listing level. The severity of values on that study make it medically

probable that the claimant equaled a listing as of 7/1/17. Prior to 7/1/17 it

is medically possible he equals listing based on narrative [at] CE 8/16 [3F]

which however are subjective and subject to credibility and somewhat

supported by narrative and exam by Dr. Samad 1/26/18 (although still

smoking!). If you find testimony credible [,] I would suggest his equaling

listing 3.02A as of CE 8/29/16.

(T. 319.)

At step three, the ALJ determined Plaintiff’s impairments did not meet Listing

3.02A. (T. 19.) In making her determination, the ALJ relied on Dr. Pella’s August 2018

opinion in which he stated Plaintiff’s impairment did not meet or equal a Listing for the

period March 1, 2015 to June 30, 2017. (Id.) The ALJ noted Dr. Pella’s statement the

record could “medically support onset of [July 1, 2017] in retrospect,” but concluded the

statement was “not determinative, given that onset is after [Plaintiff’s] date last insured

of June 30, 2017.” (Id.) Here, the ALJ erred in rejecting Dr. Pella’s opinions regarding

whether Plaintiff’s impairment met a Listing based on her faulty evaluation of Plaintiff’s

subjective complaints and based on the timing of Dr. Pella’s opinion.

First, the ALJ erred in her step three analysis because she ALJ failed to address

Dr. Pella’s October 2018 statement that it was “medically probable” Plaintiff met Listing

3.02A as of July 1, 2017 and “medically possible” Plaintiff’s impairment met a Listing as

early as August 29, 2016. (T. 19, 319.) An ALJ cannot ignore evidence which is

significantly more favorable to Plaintiff. Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir.

2010) (failure to discuss evidence “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 evidence considered”); see Sottasante v.

Colvin, 209 F. Supp. 3d 578, 594 (W.D.N.Y. 2016) (ALJ’s failure to address an opinion

that was “significantly more favorable” to plaintiff was not harmless error); see also Amy

P. v. Comm’r of Soc. Sec., No. 2:17-CV-94, 2018 WL 2095345, at *6 (D. Vt. May 7,

2018) (“[A]n ALJ cannot recite only the evidence that supports his conclusion while

ignoring contrary evidence.”) (internal citations omitted).

To be sure, the ALJ outlined and discussed Dr. Pella’s October 2018 statement

in her step four analysis of Plaintiff’s subjective complaints; however, the reasoning

provided by the ALJ for discounting the opinion was improper. (T. 23.) The ALJ

discounted Dr. Pella’s opinion, that Plaintiff’s impairment could meet a Listing if

testimony provided to the consultative examiner in 2016 was to be believed, based on

the consultative examiner’s physical examination and Plaintiff’s smoking addiction. (T.

24.) As outlined above, the ALJ erred in his assessment of Plaintiff’s subjective

complaints. The ALJ erred in failing to discuss Dr. Pella’s opinion in her step three

analysis and further, the ALJ erred in discounting Dr. Pella’s opinion based on her faulty

evaluation of Plaintiff’s subjective complaints. Even if Dr. Pella’s opinion, that Plaintiff’s

impairment could meet the Listing requirements as far back as 2016 if the ALJ credited

Plaintiff’s subjective statements, was properly reject, the ALJ nonetheless erred in her

step three determination.

Second, and most importantly, the ALJ erred in dismissing Dr. Pella’s opinion

based solely on timing. (T. 19.) In her step three determination, the ALJ cited to Dr.

Pella’s August 2018 opinion in which he stated testing results “can medically support

onset of 7/1/17 in retrospect.” (Id.) The ALJ concluded Dr. Pella’s opinion was “not

determinative, given that onset is after [Plaintiff’s] date last insured.” (Id.)

Dr. Pella’s opinion cannot be dismissed simply because the date provided was

after Plaintiff’s date last insured. See Brown v. Astrue, 4 F. Supp. 3d 390, 399

(N.D.N.Y. 2012) (the fact that an opinion was prepared after the date last insured does

not, without more, provide a basis for disregarding the opinion); see Lisa v. *399 Sec'y

of Dep't of Health & Human Servs., 940 F.2d 40, 44 (2d Cir.1991) (“[E]vidence bearing

upon an applicant's condition subsequent to the date upon which the earning

requirement [i.e., insured status] was last met is pertinent evidence in that it may

disclose the severity and continuity of impairments existing before the earning

requirement date or may identify additional impairments which could reasonably be

presumed to have been present and to have imposed limitations as of the earning

requirement date.”) (citing Gold v. Secretary of Health, Educ. and Welfare, 463 F.2d 38,

41-42 (2d Cir.1972)); see Arnone, 882 F.2d at 39 (“it is conceivable that [plaintiff] could

demonstrate such a disability without contemporaneous evidence”); see also Disarno v.

Astrue, No. 09-CV-64, 2010 WL 2629808, at *3 (W.D.N.Y. June 28, 2010) (noting that

“a retrospective diagnosis may shed considerable light on the seriousness of a Plaintiff's

condition during the relevant period”).

To be sure, a medical opinion rendered well after a plaintiff’s date last insured

may be of little, or no, probative value regarding plaintiff’s condition during the relevant

time period. See Williams v. Colvin, 98 F. Supp. 3d 614, 632 (W.D.N.Y. 2015) (the ALJ

was not required to consider medical opinions outside of the relevant time period);

McNally v. Comm'r of Soc. Sec., No. 5:14-CV-00076, 2015 WL 3621437, at *13

(N.D.N.Y. June 9, 2015) (ALJ properly gave little weight to opinion of consultative

examiner that was prepared more than eight years after the date last insured); Shook v.

Comm'r of Soc. Sec., No. 12-CV-185, 2013 WL 1213123, at *6 (N.D.N.Y. Jan. 25,

2013), report and recommendation adopted, No. 1:12-CV-185, 2013 WL 1222008

(N.D.N.Y. Mar. 25, 2013) (doctor’s opinion written more than two and a half years after

date last insured did not relate to relevant time period).

However, “[m]edical opinions given after the date that [plaintiff’s] insured status

expired are taken into consideration if such opinions are relevant to [plaintiff’s] condition

prior to that date.” Dailey v. Barnhart, 277 F. Supp. 2d 226, 233 n.14 (W.D.N.Y. 2003);

see also Shook v. Comm'r of Soc. Sec., No. 12-CV-185, 2013 WL 1213123, at *6

(N.D.N.Y. Jan. 25, 2013) (“[E]vidence cannot be disregard solely because it post-dates

the relevant time period. Rather, information provided after the date last insured should

be considered to the extent it sheds light on the Plaintiff’s condition as of the relevant

time period.”), report and recommendation adopted, 2013 WL 1222008 (N.D.N.Y. Mar.

25, 2013); see Durakovic v. Comm'r of Soc. Sec., No. 3:17-CV-0894, 2018 WL

4039372, at *4-5 (N.D.N.Y. May 30, 2018), report and recommendation adopted, No.

3:17-CV-0894, 2018 WL 4033757 (N.D.N.Y. Aug. 23, 2018) (“While a physician’s

opinion can be too temporally remote from the date of last insured and excluded as a

result, Dr. Li’s opinion was issued only four months after the date last insured.”).

Dr. Pella opined the “severity of values” from the 2018 PFT, conducted

approximately seven months after Plaintiff’s date last insured, made it “medically

probable” Plaintiff equaled a listing as of July 1, 2017 and “medically possible” he

equaled a listing as far back as August 2016. (T. 319.)

Based on Dr. Pella’s opinion, and common sense, if Plaintiff met Listing 3.02A on

July 1, 2018, then he also met the Listing the day before. To be sure, for plaintiffs who

suffer a traumatic injury or event, the date of the event or injury is used at the date

plaintiff first met the statutory definition of disability. SSR 18-01p (S.S.A. Oct. 2, 2018)4.

Here, however, Plaintiff’s impairments of COPD/emphysema are non-traumatic,

progressive impairments that are expected to gradually worsen over time. See id. As

stated by Dr. Pella, Plaintiff’s impairments were “presumed [to be a] slow deterioration

4 This SSR is applicable on October 2, 2018. We will use this SSR beginning on its

applicable date. We will apply this SSR to new applications filed on or after the applicable date of the

SSR and to claims that are pending on and after the applicable date. This means that we will use this

SSR on and after its applicable date, in any case in which we make a determination or decision. We

expect that Federal courts will review our final decisions using the rules that were in effect at the time we

issued the decisions. If a court reverses our final decision and remands a case for further administrative

proceedings after the applicable date of this SSR, we will apply this SSR to the entire period at issue in

appropriate cases when we make a decision after the court's remand. SSR 18-01p (S.S.A. Oct. 2, 2018).

of respiratory status over time period.” (T. 293.) Due to the nature of Plaintiff’s

impairment, and Dr. Pella’s opinion, the ALJ’s determination that the impairment did not

equal a listing as of his date last insured is unreasonable.

Here, remand for calculation of benefits is proper because “the record[ ]

provide[s] persuasive evidence of total disability that render[s] any further proceedings

pointless.” Stacey v. Comm'r of Soc. Sec. Admin., 799 F. App'x 7, 11 (2d Cir. 2020)

(citing Williams v. Apfel, 204 F.3d 48, 50 (2d Cir. 1999)). The record contains PFT

testing results indicating Plaintiff's met the requirements under C.F.R. Pt. 404, Subt. P,

Appendix 1 § 3.02A, thereby establishing Plaintiff met the criteria for disability based on

Plaintiff's breathing impairments under the Listing. (T. 267.) Dr. Pella opined the results

of testing retroactively supported listing level severity as of July 1, 2017; further, he

opined Dr. Samad’s January 26, 2018 exam and Plaintiff’s testimony, could support

listing level severity as of August 29, 2016. Based on Dr. Pella’s opinion and the

progressive nature of Plaintiff’s impairment, it is clear and certain Plaintiff met Listing

3.02A on June 30, 2017, his date last insured. The record is complete, and additional

development of evidence is not required, and further administrative proceeding would

serve no purpose. Therefore, remand for calculation of benefits is warranted.

ACCORDINGLY, it is

ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 7) is

GRANTED; and it is further

ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 8) is

DENIED; and it is further

ORDERED that this matter is REMANDED FOR THE CALCULATION OF

BENEFITS, pursuant to 42 U.S.C. § 405(g).

Dated: June 2, 2020 de © tan Me

William B. Mitchell Carter

U.S. Magistrate Judge

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