# Kudrick v. Commissioner of Social Security

> District Court, W.D. New York · June 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10362300

## Case

- **Court:** District Court, W.D. New York
- **Decided:** June 3, 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/10362300

## Opinion text

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

19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10362300. Public record. Not legal advice.