Cousino v. O'Malley

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

GEOFFRY C.,

Plaintiff,

V.

No. 8:23-CV-00786

5 COMMISSIONER OF SOCIAL SECURITY, (LEK/CFH)

Defendant.

APPEARANCES: OF COUNSEL:

Legal Aid Society of Northeastern New York WILLIAM R. HOLLAND, ESQ.

17 Hodskin Street

P.O. Box 648

Canton, New York 13617

| Attorney for plaintiff

Social Security Administration JOHANNY SANTANA, ESQ.

Office of the General Counsel

6401 Security Boulevard

Baltimore, Maryland 21235

Attorney for defendant

CHRISTIAN F. HUMMEL

U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER’

Geoffry C.? (“plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking

review of a decision by the Commissioner of Social Security (“the Commissioner”)

denying his application for supplemental security income. See Dkt. No. 1. Plaintiff

This matter was referred to the undersigned for completion of a Report and Recommendation in

accordance with General Order 18 and Local Rule 72.3(d). See Dkt. No. 5.

2 In accordance with guidance from the Committee on Court Administration and Case Management of the

Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018

to better protect personal and medical information of non-governmental parties, this Report-

Recommendation and Order will identify plaintiff's last name by initial only.

moves for the Commissioner's decision to be vacated and remanded for further

proceedings. See Dkt. No. 12. The Commissioner moves for the Commissioner's

decision to be affirmed. See Dkt. No. 14. Plaintiff filed a reply. See Dkt. No. 15. For

the following reasons, it is recommended that plaintiff's motion be granted, and the

Commissioner's decision be reversed and remanded for further proceedings.

a

1. Background

On November 8, 2019, plaintiff filed an application for supplemental security

income. See T. at 11, 220.° Plaintiff alleged a disability onset date of July 3, 2019.

See id. at 220, 381, 389. The Social Security Administration (“SSA”) denied plaintiff's

claims initially on February 25, 2020, and upon reconsideration on August 18, 2020.

m| See id. at 241-46, 250-60. Plaintiff appealed and requested a hearing, see id. at 262,

and a virtual hearing was held before Administrative Law Judge (“ALJ”) Robyn L.

Hoffman on June 17, 2021. See id. at 24-51. On December 23, 2021, the ALJ issued

an unfavorable decision. See id. at 8-20. On May 23, 2023, the Appeals Council

denied plaintiff's request for review of the ALJ’s decision. See id. at 1-3. Plaintiff timely

commenced this action on June 29, 2023. See Dkt. No. 1.

tr!

ll. Legal Standards

A. Standard of Review

followed by a number refers to the pages of the administrative transcript filed by the Commissioner.

See Dkt. No. 9. Citations to the administrative transcript refer to the pagination in the bottom, right-hand

corner of the page.

In reviewing a final decision of the Commissioner, a district court may not

determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g),

1388(c)(3); see also 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, 985-86 (2d Cir. 1987); see also Berry

v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is “more than a

mere scintilla,” meaning that in the record one can find “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Halloran v.

Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (citing Richardson v. Perales, 402

U.S. 389, 401 (1971) (internal citations omitted)). The substantial evidence standard is

m|“a very deferential standard of review . . . [This] means once an ALJ finds facts, we can

reject [them] only if a reasonable factfinder would have to conclude otherwise.” Brault v.

Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (citation,

emphasis, and internal quotations marks omitted). Where there is reasonable doubt as

to whether the Commissioner applied the proper legal standards, the decision should

not be affirmed even though the ultimate conclusion is arguably supported by

| Substantial evidence. See Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999)

(citing Johnson, 817 F.2d at 986). However, if the correct legal standards were applied

and the ALJ's finding is supported by substantial evidence, such 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) (citation

omitted).

B. Determination of Disability

“Every individual who is under a disability shall be entitled to a disability . . .

benefit... .” 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to engage

Vin any substantial gainful activity by reason of any medically determinable physical or

mental impairment... which has lasted or can be expected to last for a continuous

period of not less than 12 months[.]” Id. § 423(d)(1)(A). A medically-determinable

impairment is an affliction that is so severe that it renders an individual unable to

continue with his or her previous work or any other employment that may be available to

him or her based upon age, education, and work experience. See id. § 423(d)(2)(A).

m| Such an impairment must be supported by “medically acceptable clinical and laboratory

diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is

“based on objective medical facts, diagnoses[,] or medical opinions inferable from [the]

facts, subjective complaints of pain or disability, and educational background, age, and

work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3

(S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.

| 1983)).

The Second Circuit employs a five-step analysis, based on 20 C.F.R.

§ 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is

currently engaged in substantial gainful activity.

If he [or she] is not, the [Commissioner] next considers

whether the claimant has a “severe impairment” which

significantly limits his [or her] physical or mental ability to do

basic work activities.

If the claimant suffers such an impairment, the third inquiry is

whether, based solely on medical evidence, the claimant has

an impairment which is listed in Appendix 1 of the regulations.

If the claimant has such an impairment, the [Commissioner]

will consider him [or her] disabled without considering

vocational factors such as age, education, and work

experience; the [Commissioner] presumes that a claimant

who is afflicted with a “listed” impairment is unable to perform

substantial gainful activity.

Assuming the claimant does not have a listed impairment, the

fourth inquiry is whether, despite the claimant’s severe

impairment, he [or she] has the residual functional capacity to

perform his [or her] past work.

Finally, if the claimant is unable to perform his [or her] past

work, the [Commissioner] then determines whether there is

other work which the claimant could perform.

m| Berry, 675 F.2d at 467 (spacing added). “If at any step a finding of disability or non-

disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas,

540 U.S. 20, 24 (2003). The plaintiff bears the initial burden of proof to establish each

of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998)

(citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden

shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful

m| employment somewhere. See id. (citing Berry, 675 F.2d at 467).

lll. The ALJ’s Decision

Applying the five-step disability sequential evaluation, the ALJ first determined

that plaintiff “ha[d] not engaged in substantial gainful activity since November 8, 2019,

the application date[.]’ T. at 13. At step two, the ALJ found that plaintiff “na[d] the

following severe impairments: cervical disc bulging and lumbosacral degenerative disc

disease[.]” Id. At step three, the ALJ determined that plaintiff did not have an

impairment or combination of impairments that met or medically equaled the severity of

one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. at

14. Before reaching step four, the ALJ concluded that plaintiff retained the residual

functional capacity (“RFC”) to

perform a range of light work, as defined in 20 CFR

416.967(b). Specifically, [plaintiff] can occasionally lift and

carry twenty pounds; frequently lift and carry ten pounds; sit

for six hours, and stand and/or walk for six hours, all in an

eight-hour workday with normal breaks. He should avoid

working at unprotected heights; climbing ladders, ropes, or

scaffolds; and working in close proximity to dangerous

machinery or moving mechanical parts of equipment. [plaintiff]

can frequently climb ramps or stairs. He can also occasionally

stoop, kneel, crouch, and crawl. [Plaintiff] should avoid

iy exposure to excessive amount of extreme cold temperatures.

Id. at 14. At step four, the ALJ determined that plaintiff “ha[d] no past relevant work”

and, thus, “[t]ransferability of job skills [was] not an issue[.]’ Id. at 19. At step five, the

ALJ concluded that “[c]onsidering [plaintiff's] age, education, work experience, and

residual functional capacity, there are jobs that exist in significant numbers in the

national economy that [plaintiff] can perform[.]’ Id. Thus, the ALJ determined that

| plaintiff “ha[d] not been under a disability, as defined in the Social Security Act, since

November 8, 2019, the date the application was filed[.]’ Id. at 20.

IV. Discussion

A. The Parties’ Arguments*

4 The Court's citations to the parties’ briefs refer to the pagination generated by CM/ECF, located in the

header of each page.

Plaintiff requests remand for further administrative proceedings, arguing that the

Appeals Council erred in its assessment of additional medical evidence submitted by

plaintiff. See Dkt. No. 12 at 10-15. Plaintiff further asserts that the ALJ erred (1) by

failing to fulfill her duty to develop the record; (2) in evaluating the opinion of Edward

Reason, D.O.; (3) in analyzing plaintiff's activities of daily living; and (4) in relying on the

| Medical-Vocational Guidelines without obtaining vocational expert testimony. See id. at

16-26; see also Dkt. No. 15 at 4-10.

The Commissioner argues, however, that the ALJ’s decision is supported by

substantial evidence. See Dkt. No. 14 at 26. Specifically, the Commissioner contends

that (1) “the Appeals Council correctly concluded that Dr. Reason’s treatment notes

would not provide a basis for disturbing the ALJ’s decision”; (2) “the ALJ fully developed

m| the record”; (3) “the ALJ reasonably concluded that Dr. Reason’s opinion was not

persuasive’; (4) “the ALJ reasonably . . . [found] that [p]laintiff's activities of daily living

undermined his allegations of disability’; and (5) the ALJ properly relied upon the

Medical-Vocational Guidelines. See id. at 9-26.

B. Appeals Council Review

In reaching her RFC determination, ALJ Hoffman considered the various medical

opinion evidence of record. See T. at 14. As relevant here, the ALJ assessed Dr.

Reason’s medical opinion, summarizing that

Edward Reason, DO, [plaintiff's] primary care provider, did

complete an assessment in June 2020 indicating that [plaintiff]

required the use of a cane for imbalance, pain, weakness, and

insecurity. He also opined that [plaintiff] could not sustain

even sedentary exertion. More specifically, Dr. Reason

reported that [plaintiff] could “rarely” lift and carry less than ten

pounds, sit for a total of only two hours, stand/walk for a total

of less than two hours, and would need to shift between

sitting, standing, or walking positions at will during an eight-

hour workday. He thought [plaintiff] could “rarely” twist and

“never” stoop (bend), crouch/squat, or climb stairs and

ladders. He also indicated [plaintiff] had to elevate his legs all

day and had very significant limitations for reaching, handling,

and fingering bilaterally. Dr. Reason predicted that [plaintiff]

would need to take hourly ten-to-fifteen minute rest breaks,

would be off-task 25% or more of a typical workday, and would

be absent from work more than four days per month. He also

5 opined that [plaintiff] was incapable of even ‘low stress’ work.

Id. at 17-18 (citing T. at 497-99). However, the ALJ determined that Dr. Reason’s

opinion was “not persuasive” because

[a]lthough he has reportedly treated [plaintiff] for many years,

the record contains none of his progress notes, despite their

having been repeatedly requested. The other medical

evidence of record, which | have already discussed in detail,

clearly does not support the level of limitation Dr. Reason has

proposed.

Nor is his assessment consistent with the other medical

opinions of record or [plaintiff's] reported activities. [Plaintiff]

indicated in his function report that he needed no special help

or reminders to take medication or tend to his personal needs

and grooming. He claimed to prepare meals, do some

shopping in stores, handle money, and spend time reading,

watching television, “hanging with friends,” and playing video

games. [Plaintiff] reported he could complete tasks, follow

instructions, and go out alone. He denied having any

problems paying attention or remembering things.

Id. at 18 (citing T. at 404-06, 408-09, 671-78) (spacing added). The ALJ then set out

plaintiff's RFC and concluded that he “ha[d] not been under a disability, as defined in

the Social Security Act, since November 8, 2019, the date the application was filed[.]”

Id. at 14-20.

Subsequently, on February 2, 2022, plaintiff requested Appeals Council review of

the ALJ’s decision. T. at 365-68. In support of his request, on March 24, 2022, plaintiff

submitted 143 pages of medical records from Gouverneur Hospital dated January 25,

2019, through August 3, 2021, including Dr. Reason’s progress notes. See id. at 55-

197, 454-55. However, on May 23, 2023, the Appeals Council denied plaintiff's request

for review, noting that: “We find this evidence does not show a reasonable probability

that it would change the outcome of the decision. We did not exhibit this evidence.” Id.

at 2.

o “A request for Appeals Council review of an ALJ’s decision is the fourth and final

stage in the administrative process of adjudicating claims for benefits under the Social

Security Act.” Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). At this step, the “Social

Security regulations expressly authorize a [plaintiff] to submit new and material

evidence to the Appeals Council when requesting review of an ALJ’s decision.” Blash

v. Comm’r of Soc. Sec. Admin., 813 F. App’x 642, 645 (2d Cir. 2020) (summary order)

m| (Quoting Perez, 77 F.3d at 44). The Appeals Council will grant review upon receiving

additional evidence if such evidence is “new, material, and relates to the period on or

before the date of the hearing decision, and there is a reasonable probability that the

additional evidence would change the outcome of the decision,” and there is “good

cause” for not submitting, or informing the agency about, the evidence before the ALJ

issued the decision. 20 C.F.R. §§ 404.970, 416.1470; see Elaine C. v. Comm’r of Soc.

m| No. 1:23-CV-02120 (GRJ), 2023 WL 7280720, at *9 (S.D.N.Y. Nov. 3, 2023); see

also Oscar C. v. Comm'r of Soc. Sec., No. 1:20-CV-01294 (EAW), 2022 WL 1746774,

at *3 (W.D.N.Y. May 31, 2022) (“Evidence is considered new and material if it is not

cumulative of the other evidence already in the record and is both relevant to the

[plaintiff's] condition during the time period for which benefits were denied and probative

and demonstrates a reasonable possibility that the new evidence would have influenced

the [ALJ] to decide [the plaintiff's] application differently.”) (internal quotation marks and

citations omitted).

“INJew evidence submitted to the Appeals Council following the ALJ’s decision

becomes part of the administrative record for judicial review when the Appeals Council

denies review of the ALJ’s decision.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir.

° 2015) (quoting Perez, 77 F.3d at 45). “If the additional evidence undermines the ALJ's

decision, such that it is no longer supported by substantial evidence, then the case

should be reversed and remanded.” Webster v. Colvin, 215 F. Supp. 3d 237, 244

(W.D.N.Y. 2016) (citing Brown v. Apfel, 174 F.3d 59, 65 (2d Cir. 1999)).

Here, the newly submitted evidence includes 143 pages of medical records from

Gouverneur Hospital dated January 25, 2019, through August 3, 2021. See T. at 55-

m|197. This evidence includes various treatment records from Dr. Reason, including

records dated January 25, 2019; March 11, 2019; April 8, 2019; May 21, 2019; July 22,

2019; August 23, 2019; September 20, 2019; October 24, 2019; November 25, 2019;

January 17, 2020; February 17, 2020; March 17, 2020; April 17, 2020; May 14, 2020;

June 15, 2020; July 13, 2020; August 10, 2020; September 14, 2020; October 13, 2020;

November 13, 2020; January 15, 2021; February 16, 2021; March 16, 2021; May 13,

m| 2021; June 11, 2021; July 8, 2021; and August 5, 2021. See id. at 55-79, 109-66. Each

office visit summary details plaintiff's problem list, chief complaint, current medications,

past medical and surgical history, social history, and allergies, as well as Dr. Reason’s

physical findings, his assessment of plaintiff, and his plan for plaintiff going forward.

See id. Specifically, Dr. Reason noted that plaintiff has “lower back trauma,” and

10

regularly suffers from “lowpain back,” “a lot of body aches,” “leg pain,” “left shoulder”

pain, and “neck pain.” Id. at 58, 61, 64, 78-79.

Plaintiff summarizes some of the additional evidence:

Before [plaintiff's] current application was filed, in March 2019

Dr. Reason prescribed Hydrocodone for [plaintiff's] neck pain.

In May 2019, Dr. Reason renewed the Hydrocodone

5 prescription. His weight at this appointment was 306 pounds.

In August 2019, [plaintiff] reported pain in his left shoulder and

weakness and swelling in his left calf to Dr. Reason. Later in

the month, [Dr. Reason ordered] a physical therapy evaluation

[of plaintiff] at Gouverneur Hospital for his left shoulder pain.

[Plaintiff] described his left shoulder pain as “burning/

stabbing” and that his pain was worse when reaching or lifting

over his head. He also had left leg pain and weakness while

standing or walking as well as difficulty walking.

On examination, his left shoulder range of motion was limited,

pain was noted with movement, and near impingement,

Hawkins Kennedy, Empty Can, and subscapularis lift off tests

were positive for pain for the left shoulder. The tests were

“consistent with rotator cuff tendinopathy” with a guarded

prognosis. It further was reported that [plaintiff's] “impairments

include pain, decreased [range of motion] and decreased

[upper extremity] strength. These impairments are leading to

difficulty with tasks that require lifting/reaching with the [left

upper extremity], especially overhead.” He used a cane and

had “decreased weight shift onto” the left lower extremity. . .

In October 2019, [plaintiff] was discharged after 8 left shoulder

physical therapy visits when he performed without pain but

with “excessive fatigue.” . . .

In March 2020 and April 2020, Dr. Reason renewed the

Hydrocodone prescription for [plaintiff's] neck pain. In July

2020, Dr. Reason discussed [plaintiff's] “tight” neck muscles

with him, prescribed Cyclobenzaprine, and renewed the

Hydrocodone prescription.

Dkt. No. 12 at 19-21 (citing T. at 60, 66, 71, 90-92, 103-04, 119, 122, 132).

11

Plaintiff argues that “had the ALJ obtained the additional Gouverneur Hospital

records, . . . different persuasiveness would have been afforded to Dr. Reason’s opinion

resulting in a different RFC assessment.” Dkt. No. 12 at 11. As such, plaintiff contends

that “there is a reasonably possibility that the new evidence would have influenced the

ALJ to decide this case differently.”> Id. The undersigned agrees.

o Where an ALJ has discounted a medical opinion based on the absence of

supporting treatment records, and the plaintiff subsequently submitted those records to

the Appeals Council, courts have found such evidence to be material as there is a

reasonable possibility that the records would change the outcome of the ALJ’s decision.

See Cathy G. v. Kijakazi, No. 1:21-CV-823 (ATB), 2022 WL 11134065, at *10 (N.D.N.Y.

Oct. 19, 2022) (“Plaintiff submitted additional medical records from Helios Care[,

including treatment records from LCSW Jennifer Parker,] to the Appeals Council, after

the ALJ’s decision, but before the Appeals Council denied review. . . . The Appeals

Council tersely found that the evidence did not show a reasonable probability that it

would change the outcome of the ALJ’s decision. . . . [However, t]he fact that the ALJ

5 Plaintiff also contends that “the Gouverneur Hospital records were new as they were received by

[plaintiff's] representative on March 23, 2022 and submitted on March 24, 2022 to the Appeals Council,”

and “[g]ood cause exists for the submission of the Gouverneur Hospital records to the Appeals Council as

| the ALJ failed to properly develop the record regarding Dr. Reason’s records.” Dkt. No. 12 at 10, 13.

However, “[b]ecause the Appeals Council did not address whether the evidence in question qualifies as

‘new’ evidence or whether [plaintiff] satisfied the ‘good cause’ standard and the Commissioner does not

address these issues, the [undersigned] declines to consider these issues.” King v. Comm’r of Soc. Sec.,

No. 19-CV-6222 (FPG), 2020 WL 5248473, at *2 n.3 (W.D.N.Y. Sept. 2, 2020) (citing Hissin v. Comm’r of

Soc. Sec., No. 17-CV-1264 (FPG), 2019 WL 4253899, at *3 (W.D.N.Y. Sept. 9, 2019) (rejecting the

Commissioner’s argument that the plaintiff did not satisfy the good cause standard for new evidence and

other arguments “because the Appeals Council did not articulate any of th[o]se reasons to justify its

conclusion”)) (additional citations omitted); see Dkt. No. 14 at 21 n.6; see also Bridget P. v. Comm’ of

Soc. Sec., No. 3:21-CV-654 (CFH), 2023 WL 2402782, at *10 (N.D.N.Y. Mar. 8, 2023) (“[T]he Court

declines to consider whether plaintiff has shown ‘good cause’ for failing to present the evidence sooner in

the administrative process because the Appeals Council did not decline to review the ALJ’s decision on

that ground.”); Leanne S. v. Comm’r of Soc. Sec., No. 3:20-CV-1447 (CFH), 2022 WL 4448245, at*5

(N.D.N.Y. Sept. 23, 2022) (declining to consider the good cause issue as it was not a rationale provided

by the Appeals Council) (citation omitted).

12

discounted LCSW Parker's opinion based on the absence of supporting treatment notes

[renders] this new evidence material to the ALJ’s decision.”); see also Secatero v. Saul,

No. CV 19-87 (SCY), 2020 WL 419463, at *6 (D.N.M. Jan. 27, 2020) (“The Court finds a

reasonable possibility that the additional evidence could have changed the outcome

below. .. . The ALJ’s rejection of Dr. Laughter’s opinion was based, at least in major

° part, on a lack of treatment records from Dr. Laughter, so the ALJ clearly viewed the

records as material. The ALJ’s repeated reliance on the absence of records such as

these thus supports the Court’s conclusion that their current presence is material.”).

In determining that Dr. Reason’s opinion was “not persuasive,” ALJ Hoffman

specifically noted that “[a]lthough [Dr. Reason] has reportedly treated [plaintiff] for many

years, the record contains none of his progress notes, despite their having been

m| repeatedly requested.” T. at 18. Thus, the ALJ’s persuasiveness finding regarding Dr.

Reason’s opinion, specifically the ALJ’s supportability assessment, rests largely on the

lack of his progress notes in the record. See id.; see also Pelow v. Colvin, No. 6:14-CV-

06529 (MAT), 2015 WL 8516555, at *4 (W.D.N.Y. Dec. 11, 2015) (“The ALJ’s decision

makes clear that her reasoning for finding an established onset date of May 9, 2012,

was based primarily on a lack of medical evidence in the record indicating an earlier

| onset date for plaintiff's symptoms. . . . This reliance on a lack of evidence is significant,

considering that [the] plaintiff supplied new evidence to the Appeals Council consisting

of exactly what the ALJ found missing in [the] plaintiffs case... . Accordingly, the Court

finds that there is a reasonable possibility that this new evidence would have influenced

the ALJ to decide [the] plaintiff's application differently.”) (citing Farrell v. Astrue, 692

F.3d 767, 771 (7th Cir. 2012) (remanding for reconsideration where “new evidence

13

fill[ed] in [an] evidentiary gap” and, thus, was “material evidence that the Appeals

Council improperly failed to consider”)); Lovan v. Saul, No. 2:19-CV-10614 (VEB), 2020

WL 13912439, at *7 (C.D. Cal. Oct. 27, 2020) (concluding that the plaintiff's additional

evidence submitted to the Appeals Council, which documented treatment for the

plaintiff's spinal issues, was material because “the ALJ cited the lack of evidence of

such treatment as a reason for discounting [the p]laintiff's subjective complaints of

pain”).

However, now that Dr. Reason’s progress notes are in the record, it is

conceivable that they may alter the ALJ’s assessment of Dr. Reason’s opinion, as the

notes may bolster his opinion or otherwise affect the weight given by the ALJ to his

opinion. See Oscar C., 2022 WL 1746774, at *5 (“[l]n concluding that [the p]laintiff was

Not as limited as he alleged, the ALJ noted ‘the lack of medical evidence supporting the

overall allegations,’ and it is conceivable that the new records could alter that analysis[,

as t]he new records . . . may bolster the medical opinion evidence or affect the weight

given by the ALJ to those opinions.”); see also Wilbon v. Colvin, No. 15-CV-756 (FPG),

2016 WL 5402702, at *6 (W.D.N.Y. Sept. 28, 2016) (finding that reports “were . . .

material” because “if considered by the Appeals Council, they would have undermined

m| Key aspects of the ALJ’s decision”). The undersigned notes that, as detailed above, the

additional evidence appears to provide support for Dr. Reason’s opinion and, therefore,

undermines the ALJ’s assessment of his opinion. Compare T. at 498 (opining that

plaintiff could sit for about two hours total and stand/walk for less than two hours total in

an eight-hour working day; he could rarely lift and carry less than ten pounds, and never

carry more than ten pounds; and he could “rarely” twist and “never” stoop (bend),

14

crouch/squat, or climb stairs or ladders), with T. at 61-64 (explaining that plaintiff suffers

from “edema — left leg,” “intermittent claudication — left leg,” “arthralgias in multiple

sites,” “all over body pain,” “neck pain,” “leg pain,” and “lower back trauma”); compare T.

at T. at 498 (opining that plaintiff needs to use a cane to engage in occasional standing/

walking because he suffers from imbalance, pain, weakness, and insecurity), with T. at

90-91 (observing, on August 28, 2019, that plaintiff reported “having OA in all joints’;

“has been having L LE burning/stabbling [sic] and gives out when standing/ walking’;

has “chronic neck and back pain that limits him daily”; has “radiating LE pain that limits

his mobility’; and he “presents to therapy using a straight cane” because he has

“[djecreased weight shift onto L LE”).

Thus, if ALJ Hoffman “had the opportunity to review” the additional evidence, “it

iS reasonably probable that . . . [she] would have reached a different conclusion

regarding [plaintiff's residual functional capacity.” Walentynowicz v. Comm'r of Soc.

Sec., No. 23-CV-3515 (HG), 2024 WL 2972814, at *5 (E.D.N.Y. June 13, 2024); see

Heather V. v. Comm’r of Soc. Sec., No. 20-CV-01870 (FPG), 2023 WL 2607301, at *4

(W.D.N.Y. Mar. 23, 2023) (“Here, the additional evidence [the p]laintiff submitted to the

Appeals Council—Dr. Zimmerman’s August and September 2020 opinions—includes

specific functional parameters that provide support for Dr. Zimmermann’s earlier

‘conclusory’ opinions .. . Because the ALJ’s evaluation of the persuasiveness of Dr.

Zimmermann’s opinions and conclusion that they were ‘not persuasive’ focused

primarily upon their ‘supportability,’ the Court finds that this additional evidence of

specific functional parameters may have influenced the ALJ’s evaluation of [the

pllaintiff's RFC and ultimately his disability determination.”). In other words, there is “‘a

15

reasonable possibility that [plaintiff's additional evidence] would have influenced the ALJ

to decide [plaintiff's] application differently.” Bridget P. v. Comm’r of Soc. Sec., No.

3:21-CV-654 (CFH), 2023 WL 2402782 (N.D.N.Y. Mar. 8, 2023) (“For [this] evidence to

be [considered] ‘material,’ there must be . . . ‘a reasonable possibility that [the progress

notes] would have influenced the ALJ to decide [plaintiff's] application differently.””)

° (quoting Suttles v. Colvin, 654 F. App’x 44, 47 (2d Cir. 2016) (summary order)); see

Bido v. Astrue, No. 07-CV-5944 (RMB/HBP), 2009 WL 2222738, at *2 (S.D.N.Y. July

21, 2009) (concluding that additional evidence of an MRI “could have influenced the ALJ

to decide [the plaintiff's] application differently because the ALJ based his decision in

large part on the lack of medical evidence supporting [the p]laintiff's allegations of

severe back pain”).

The Commissioner argues that “the Appeals Council reasonably concluded that

[the additional evidence] did not show a reasonable probability of changing the outcome

of the [ALJ's] decision” because the “evidence does not offer support for Dr. Reason’s

opinion.” Dkt. No. 14 at 23. However, it is well settled that “the Commissioner cannot

substitute her own rationale for that of the Appeals Council.” Joseph M. v. Comm’r of

Soc. Sec., No. 20-CV-7004 (FPG), 2023 WL 2623588, at *4 (W.D.N.Y. Mar. 24, 2023)

(“While the Commissioner also argues that the Appeals Council acted appropriately [in

declining to consider Mr. Gaskill’s statement] because Mr. Gaskill’s findings were

inconsistent with other evidence in the record, the Commissioner cannot substitute her

own rationale for that of the Appeals Council.”) (citations omitted); see Lugo v. Berryhill,

390 F. Supp. 3d 453, 460-61 (S.D.N.Y. 2019) (“[R]Jemand is appropriate in this case[.]

... While the Commissioner may speculate that the Appeals Council denied review

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because the new evidence was cumulative, the Court may not accept the

Commissioner's ‘post hoc rationalizations’ for the Appeals Council’s decision. The

actual rationale of the decision of the Appeals Council was that the new evidence ‘does

not show a reasonable possibility that it would change the outcome of the decision.’ But

that rationale fails to come to grips with the fact that the new evidence undercuts the

| stated rationale of the ALJ.”) (citing Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999));

see also Mendez v. Comm’r of Soc. Sec., No. 17-CV-6824 (CJS), 2019 WL 2482187, at

*5 (W.D.N.Y. June 14, 2019) (“[T]he post hoc rationalizations offered by [the

Commissioner], for why the additional evidence submitted to the Appeals Council would

not have resulted in a different outcome, are not sufficient.”) (citing Newbury v. Astrue,

321 F. App’x 16, 18 (2d Cir. 2009) (summary order) (“A reviewing court may not accept

appellate counsel’s post hoc rationalizations for agency action.”)).

In sum, because there is a reasonable probability that plaintiff's additional

evidence would change the outcome of ALJ Hoffman’s decision, the Appeals Council

erred by summarily rejecting and failing to consider the additional evidence. See 20

C.F.R. §§ 404.970, 416.1470. In light of the new medical records, the ALJ’s decision is

not supported by substantial evidence and, therefore, remand is recommended. See

Lesterhuis, 805 F.3d at 88 (“[T]he ALJ’s decision was not supported by substantial

evidence because the new evidence contradicted the ALJ’s conclusion in important

respects”) (citation omitted); see also Wilbon, 2016 WL 5402702, at *6 (“In light of this

new evidence, the Commissioner’s decision is not supported by substantial evidence

and must be remanded.”); Sakane v. O’Malley, No. 1:23-CV-00576 (SKO), 2024 WL

361423, at *5 (E.D. Cal. Jan. 31, 2024) (explaining that additional evidence the plaintiff

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provided to the Appeals Council filled the “evidentiary gap” that the ALJ previously

noted, and concluding that “considering the record as a whole, . . . the ALJ’s conclusion

about the extent of [the p]laintiff's limitations .. . are no longer supported by substantial

evidence.”).

C. Plaintiff's Remaining Arguments

o Because the undersigned recommends remand for the consideration of new

evidence, the undesigned declines to reach plaintiff's remaining arguments. See Justin

F. v. Comm'r of Soc. Sec., No. 3:23-CV-1041 (SDV), 2024 WL 3633647, at *5 (D. Conn.

Aug. 1, 2024) (“Lastly, because the case will be remanded for consideration of the new

evidence, the Court does not reach [the] plaintiff's other five claims of error[.]’); see also

Brian C. v. Comm'r of Soc. Sec., No. 3:22-CV-01292 (LEK/TWD), 2024 WL 1468869, at

(N.D.N.Y. Feb. 20, 2024) (“Because the Court recommends the District Court remand

this matter for the ALJ to [reassess evidence], and because that assessment could alter

the ALJ’s RFC... , the Court declines to address [the p]laintiffs remaining

arguments.”), report and recommendation adopted, 2024 WL 1069877 (N.D.N.Y. Mar.

12, 2024): Mendez, 2019 WL 2482187, at *5 (“Because the Court is remanding the

matter for further administrative proceedings that may moot the other arguments raised

| by [the plaintiff, the Court declines to consider those arguments at this time.”). On

remand, however, the ALJ should consider plaintiff's remaining arguments, including

whether the ALJ properly developed the record, evaluated the persuasiveness of Dr.

Reason’s opinion, analyzed plaintiff's activities of daily living, and relied on the Medical-

Vocational Guidelines. See Dkt. No. 12 at 4-10; see also Anthony J. v. Comm'r of Soc.

Sec., No. 21-CV-34-A, 2023 WL 2165171, at *6 (W.D.N.Y. Feb. 22, 2023).

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V. Conclusion

WHEREFORE, for the reasons stated herein, it is hereby:

RECOMMENDED, that the plaintiff's motion (Dkt. No. 12) be GRANTED; and it is

further

° RECOMMENDED, that the Commissioner's decision be REVERSED and

REMANDED for further proceedings; and it is

ORDERED, that the Clerk serve a copy of this Report-Recommendation and

Order on all parties in accordance with Local Rules.

IT 1S SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have

fourteen days within which to file written objections to the foregoing report. Such

objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS

REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE

REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.

Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.

§ 636(b)(1); FED. R. Civ. P. 6(a), 6(e), 72.

Date: August 23, 2024

Albany, New York

USS. Magistrate Judge

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