# Kluza v. Commissioner of Social Security

> District Court, W.D. New York · September 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10365288

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 12, 2022
- **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/10365288

## How later opinions describe it (automated extraction)

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

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________

STACIE K.,

Plaintiff, DECISION AND ORDER
v.
6:20-CV-06840 EAW
COMMISSIONER OF SOCIAL SECURITY,

Defendant.
____________________________________

INTRODUCTION
Represented by counsel, plaintiff Stacie K. (“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 disability insurance benefits (“DIB”). (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. 13; Dkt.
14), and Plaintiff’s reply (Dkt. 15). For the reasons discussed below, Plaintiff’s motion
(Dkt. 13) is granted in part, the Commissioner’s motion (Dkt. 14) 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 DIB on January 9, 2018. (Dkt. 11 at
128, 307-13).1 In her application, Plaintiff alleged disability beginning January 5, 2018.
(Id. at 128, 307). Plaintiff’s application was initially denied on April 2, 2018. (Id. at 128,

240-45). At Plaintiff’s request, a hearing was held before administrative law judge (“ALJ”)
Asad M. Ba-Yanus in Buffalo, New York, on August 22, 2019. (Id. at 143-206). On
September 16, 2019, the ALJ issued an unfavorable decision. (Id. at 128-38). Plaintiff
requested Appeals Council review; her request was denied on August 21, 2020, making
the ALJ’s determination the Commissioner’s final decision. (Id. at 5-11). 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

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

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.
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 Bowen v. City of N.Y., 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. § 404.1520(b). If so, the claimant is not disabled. If

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

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. § 404.1520(d). If the impairment meets or medically
equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), the
claimant is disabled. If not, the ALJ determines the claimant’s residual functional capacity
(“RFC”), which is the ability to perform physical or mental work activities on a sustained

basis, notwithstanding limitations for the collective impairments. See id. § 404.1520(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.
§ 404.1520(f). If the claimant can perform such requirements, then he or she is not
disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the

burden shifts to the Commissioner to show that the claimant is not disabled. Id.
§ 404.1520(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);

see also 20 C.F.R. § 404.1560(c).
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. § 404.1520. Initially, the ALJ determined that

Plaintiff met the insured status requirements of the Act through September 30, 2022. (Dkt.
11 at 130). At step one, the ALJ determined that Plaintiff had not engaged in substantial
gainful work activity from her alleged onset date of January 5, 2018. (Id.).
At step two, the ALJ found that Plaintiff suffered from the severe impairments of:
degenerative disc disease, spinal stenosis, degenerative joint disease of the knees,
osteoporosis, fibromyalgia, and chiari-I malformation status-post revision in April 2017.
(Id.).

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.). The ALJ particularly considered the criteria of Listings 1.00, 3.00, 11.00, 12.00, and
14.00 in reaching his conclusion. (Id. at 130-33).
Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC

to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the additional
limitations that:
except that she may frequently kneel and crawl; and occasionally stoop, and
crouch, and climb ramps and stairs; never climb ladders, ropes, or scaffolds;
and must avoid all workplace hazards, including unprotected heights and
dangerous machinery.

(Id. at 133). At step four, the ALJ found Plaintiff capable of performing her past relevant
work as an office manager and customer service representative. (Id. at 136). The ALJ
relied on the testimony of a vocational expert (“VE”) to make the alternative finding 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 order clerk, addresser, and parimutuel ticket checker. (Id. at
137-38). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act.
(Id. at 38).
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 post-decision surgeries; and (2) the ALJ erred in rejecting Plaintiff’s
subjective complaints. (Dkt. 13-1 at 12-20). Because the Appeals Council erred in
rejecting evidence of Plaintiff’s post-decision surgeries, the matter is remanded for further
administrative proceedings.
A. Appeals Council Review
Following her administrative hearing, Plaintiff submitted additional evidence

including records from a November 18, 2019 back surgery and a July 6, 2020 posterior
fossa pseudomeningocele surgical washout with lumbar drain placement to address effects
of Plaintiff’s prior chiari I surgery. (Dkt. 11 at 12-119). The Appeals Council stated that
the additional evidence 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

September 16, 2019. (Id. at 6). Plaintiff argues remand is necessary because such evidence
supported allegations of limitations from impairments of which Plaintiff complained of
during the relevant period. The Court agrees.
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,” and a party demonstrates good cause for not submitting the evidence earlier. 20
C.F.R. §§ 404.970(a)(5); 404.970(b). 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) (“Although the new evidence consists of documents generated after the ALJ
rendered his decision, this does not necessarily mean that it had no bearing on the
Commissioner’s evaluation of [Plaintiff’s] claims.”). “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 Gonzalez v. Comm’r of Soc. Sec., No. 19-CV-06230, 2020 WL 4548031, at *7
(W.D.N.Y. Aug. 6, 2020) (“Indeed, evidence generated after an ALJ’s decision cannot be
deemed irrelevant solely based on timing, 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.” (citing 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 November 2019 back surgery
and July 6, 2020 brain surgery. (Dkt. 11 at 12-119). In addition, Plaintiff’s neurosurgeon,
Kevin Walter, M.D. opined on August 11, 2020, that Plaintiff was completely disabled as

a result of her ongoing issues associated with her cerebrospinal fluid leak. (See id. at 20).
The Appeals Council summarily rejected the new evidence, stating:
The Administrative Law Judge decided your case through September 16,
2019. 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 September 16, 2019.

(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 back surgery took place just two months after the ALJ’s
decision and her second brain surgery occurred within ten months of the ALJ’s decision.
These surgeries relate to Plaintiff’s severe impairments of degenerative disc disease, spinal
stenosis, and chiari malformation status post revision. 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
Lani May G. v. Comm’r of Soc. Sec., No. 1:20-CV-6221 (CJS), 2021 WL 3884232, at *8
(W.D.N.Y. Aug. 31, 2021) (“Here, the medical evidence submitted to the Appeals Council
involved the same condition that necessitated two prior surgeries within the period at issue,
and potentially indicated a worsening in Plaintiff’s condition sufficient to warrant a third
surgery. Based on the new evidence submitted by Plaintiff, then, the ALJ or Appeals
Council might be persuaded to find that, during the relevant time period, Plaintiff was more
limited in her neck movements or other capabilities than the ALJ initially assessed.”);
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 found that Plaintiff’s allegations were somewhat consistent
with the treatment record, but not sufficiently limiting to establish disability. Despite
acknowledging Plaintiff’s hearing testimony and the medical evidence of record, the ALJ
ultimately concluded that:
Overall, the diagnostic imaging of [Plaintiff’s] back and knees do not suggest
disabling limitation. [Plaintiff] has had very little treatment for her
fibromyalgia, obesity, and osteoporosis. While [Plaintiff] did undergo
surgery for her Chiari-I malformation, which certainly suggests that the
symptoms were genuine; it is offset by the fact that the record reflects that
the surgery was generally successful in relieving the symptoms. Since the
alleged onset date of disability, [Plaintiff] has not generally received the type
of medical treatment one would expect for a disabled individual.

(Dkt. 11 at 135).
In significant part, the ALJ discounted Plaintiff’s limitations by highlighting that
she had not received the type of treatment as would be expected for a disabled individual.
However, just two months after the date of the ALJ’s decision, Plaintiff underwent a back
surgery after a September 2019 MRI showed right-sided disc extrusion with compression
of the L5 nerve root. (See id. at 106-08). The surgeon noted that Plaintiff has been treated
with conservative measures including nonsteroidal anti-inflammatories, medication,
physical therapy, and lumbar epidural steroid injections with no benefit over the previous
two-year period. (Id. at 108). The treatment note reflects that proceeding with a lumbar

microdiscectomy was the reasonable next step. (Id.). Consequently, the November 2019
surgery confirms the severity of Plaintiff’s back 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. Kellner v. Comm’r of Soc. Sec., No. 17-CV-947S, 2019 WL 2559516,
at *5 (W.D.N.Y. June 21, 2019) (new treatment notes and imaging studies were material
because they showed that initial success of back surgery, which was integral to ALJ’s
decision, did not continue, and because “the ALJ relied on the absence of such evidence in
denying Plaintiff’s application for benefits . . . there is a reasonable probability this new

evidence would change the outcome of the ALJ’s decision”).
Similarly, in June of 2020, following complaints of persistent headaches, Plaintiff
was found to have a pseudomeningocele. (Dkt. 11 at 49). On July 6, 2020, Plaintiff
underwent a posterior fossa pseudomeningocele washout and closure with lumbar drain
placement. (Id.). An August 11, 2020 post-operative treatment note reflected that while

surgery was uncomplicated, Plaintiff had a recurrence of headaches requiring a return to
the emergency room. (Id. at 21). Dr. Walter ordered a spinal tap and opined that Plaintiff
was 100% temporarily disabled pending further work-up and likely surgery for the internal
spial fluid leak. (Id. at 16, 25). As with Plaintiff’s back condition, the ALJ’s conclusion
that Plaintiff’s previous brain surgery was generally successful in relieving her symptoms
is undercut by the additional records. See Kellner, 2019 WL 2559516, at *5.
The Court is not persuaded by the Commissioner’s argument that remand is

unnecessary because the “treatment records were not relevant to the period at issue in this
case and would not affect the ALJ’s determination.” (Dkt. 14-1 at 17). While the records
document post-decision deterioration of Plaintiff’s conditions, the additional treatment
unquestionably consists of ongoing treatment for the same severe impairments that were
before the ALJ, and does not constitute evidence of a separate and distinct disability. At

the same time, the records are not merely cumulative of the records considered by the ALJ
as they evidence surgical treatment for those conditions that provide support for Plaintiff’s
claims of impairment. Considering that the first surgery took place just two months after
the date of the ALJ’s decision and the second less than eight months later, the records at
issue are material because they undermine key aspects of the ALJ’s decision, including the

ALJ’s credibility analysis and consideration of the relative conservative treatment Plaintiff
had undergone for these conditions. 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 an additional reason 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 that issue. 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.
13) 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. 14) is denied. The Clerk of Court is directed
to enter judgment and close this case.
SO ORDERED.

________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: September 12, 2022
Rochester, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365288. Public record. Not legal advice.