Catlin v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT oo EP oo

WESTERN DISTRICT OF NEW YORK ~ -

JUN 18 2025

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SCOTT C.!, ESTERN DISTRICL OF

Plaintiff,

Vv. 23-CV-243 (JLS)

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

DECISION AND ORDER

Plaintiff Scott C. brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)

of the Social Security Act, seeking review of the decision of the Commissioner of the

Social Security Administration that he was not disabled. Dkt. 1. Plaintiff moved

for judgment on the pleadings. Dkt. 6-1. The Commissioner responded and cross-

moved for judgment on the pleadings, to which Plaintiff replied. Dkts. 7-1, 8. For

the reasons below, the Court grants Plaintiffs motion in part and denies the

Commissioner’s cross-motion.

1 Pursuant to the Western District of New York’s November 18, 2020 Standing

Order regarding the naming of plaintiffs in Social Security decisions, this decision

and order identifies Plaintiff by first name and last initial.

PROCEDURAL HISTORY

This action originates from Plaintiffs application for Disability Insurance

Benefits (“DIB”) and his application for Supplemental Security Income (“SSI”), both

filed on November 18, 2020.2 Tr. 8309-10, 315-30.3 Plaintiffs applications were

initially denied, and he requested a hearing before an administrative law judge

(“ALJ”). Tr. 204-13. Following the hearing, at which Plaintiff was represented by

counsel, ALJ Alexander Peter Borré issued a decision finding that Plaintiff was not

disabled. Tr. 27-39. Plaintiffs request for Appeals Council review was denied,

after which Plaintiff commenced this action. Tr. 1-7; Dkt. 1.

LEGAL STANDARDS

I, DISTRICT COURT REVIEW

Judicial review of disability claims under the Act is limited to whether the

Commissioner’s decision is supported by substantial evidence and whether the

correct legal standards were applied. See 42 U.S.C. § 405(g); Cichocki v. Astrue, 729

2 Plaintiff applied for both DIB and SSI. To receive DIB, a claimant must show that

he or she became disabled while meeting the Act’s insured status requirements. See

42 U.S.C. § 423(d)(1)(A); Schillo v. Kijakazi, 31 F.4th 64, 69-70 (2d Cir. 2022). SSI,

on the other hand, “provides benefits to each aged, blind, or disabled individual who

does not have an eligible spouse and whose income and resources fall below a

certain level.” Clark v. Astrue, 602 F.3d 140, 142 (2d Cir. 2010) (quoting 42 U.S.C.

§ 1382(a)) (internal quotation marks omitted). The Social Security Administration

uses the same five-step evaluation process to determine adult eligibility for both

programs. See 20 C.F.R. §§ 404.1520(a)(4) (concerning DIB), 416.920(a)(4)

(concerning SSI).

3 The filing at Dkt. 5 is the transcript of the proceedings before the Social Security

Administration. All references to Dkt. 5 are hereby denoted “Tr. __.”

F.3d 172, 177 (2d Cir. 2013). The Commissioner’s factual findings are conclusive

when supported by substantial evidence. See Biestek v. Berryhill, 139 S. Ct. 1148,

1152 (2019). “Substantial evidence” is “more than a mere scintilla” and “means

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) Gnternal quotation

marks and citation omitted).

The Court does not determine de novo whether the claimant is disabled, but

the Commissioner’s conclusions of law are not given the same deferential standard

of review. See Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003). If there is a

reasonable basis of doubt about whether the ALJ applied the correct legal

standards, then upholding the determination “creates an unacceptable risk that a

claimant will be deprived of the right to have his or her disability determination

made according to correct legal principles.” Johnson v. Bowen, 817 F.2d 9838, 986

(2d Cir. 1987); see Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz

v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)) (the Court’s review for legal error ensures

“that the claimant has had a full hearing under the .. . regulations and in

accordance with the beneficent purposes of the .. . Act.”).

II. DISABILITY DETERMINATION

Disability under the Act is determined under a five-step test. See Bowen v.

City of New York, 476 U.S. 467, 470-71 (1986); 20 C.F.R. §§ 404.1520, 416.920.

First, the ALJ must determine whether the claimant is currently engaged in

substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). “Substantial

gainful activity” is work activity that involves significant physical or mental

activities and is normally done for pay or profit. 20 C.F.R. §§ 404.1572, 416.972. If

the ALJ finds that the claimant is engaged in substantial gainful activity, the

claimant cannot claim disability. 20 C.F.R. §§ 404.1520(b), 416.920(b).

Second, the ALJ must determine whether the claimant has a medically

determinable impairment or a combination of impairments that significantly limits

the claimant’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c),

416.920(c). Absent such impairment, the claimant may not claim disability. Id.

Third, the ALJ must determine whether the claimant 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), 416.920(d). If such criteria are met, then the

claimant is declared disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d).

Even if the claimant is not declared disabled under the third step, the ALJ

may still find disability under the next two steps of the analysis. The ALJ must

determine the claimant’s residual functional capacity (“RFC”). 20 C.F.R.

8§ 404.1520(e), 416.920(e). The RFC is a holistic assessment of the claimant’s

medical impairments, both severe and non-severe, that evaluates the claimant’s

ability to perform physical or mental work activities on a sustained basis,

notwithstanding limitations for collective impairments. 20 C.F.R. §§ 404.1545,

416.945.

In the fourth step, the ALJ must determine whether the claimant has the

RFC to perform past relevant work. 20 C.F.R. §§ 404.1520, 416.920(. Ifthe

claimant is capable of performing past relevant work, then the claimant is not

disabled. 20 C.F.R. §§ 404.1560(b)(3), 416.960(b)(3). If the ALJ finds that the

claimant is unable to perform past relevant work, the analysis proceeds to the fifth

and final step. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

In this final analytical step, the ALJ must decide whether the claimant is

able to perform any other relevant work corresponding with his or her RFC, age,

education, and work experience. 20 C.F.R. §§ 404.1560(c), 416.960(c). Here, the

burden of proof shifts from the claimant to the Commissioner to prove that a

significant number of jobs in the national economy exists that the claimant can

perform given his or her RFC, age, education, and work experience. 20 C.F.R.

§§ 404.1520(g), 404.1560(c), 416.920(g), 416.960(c); see Rosa v. Callahan, 168 F.3d

72, 77 (2d Cir. 1999).

DISCUSSION

I, THE ALJ’S DECISION

The ALJ determined that Plaintiff had not engaged in substantial gainful

activity since March 17, 2018, his alleged onset date. Tr. 30. The ALJ also found

that Plaintiff suffered from the following severe impairments: “major depressive

disorder, moderate, and generalized anxiety disorder.” Id. The ALJ concluded,

however, that Plaintiffs severe impairments did not meet or medically equal one of

the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Zd.

After considering the entire record, the ALJ determined that Plaintiff had the

RFC to perform a full range of work at all exertional levels, except that he “is

limited to simple, routine tasks in an environment with only occasional interaction

with the public, coworkers, and supervisors, and only occasional, simple changes.”

Tr. 32,

The ALJ found that Plaintiff was unable to perform any past relevant work.

Tr. 37. But the ALJ concluded that Plaintiff was not disabled because his age,

education, work experience, and RFC allowed him to perform jobs existing in

significant numbers in the national economy. Tr. 38. As such, according to the

ALJ, Plaintiff had not been under a disability from March 17, 2018, through March

21, 2022, the date of the decision. Tr. 39.

II. PLAINTIFF'S ARGUMENT

Plaintiff makes two arguments for judgment in his favor. Dkt. 6-1, at 1.

First, Plaintiff argues that, despite finding partially persuasive the opinion of

Janine Ippolito, Psy.D., the ALJ failed to incorporate all of her opined limitations.

Id. at 9-13. Second, Plaintiff argues that the Appeals Council failed to consider

new and material evidence. Id. at 14—20.

III. ANALYSIS

A. The ALJ’s RFC limitations are consistent with Dr. Ippolito’s

moderate mental limitations.

On March 11, 2021, Dr. Ippolito completed a psychiatric evaluation, and

opined, among other things, that Plaintiff presented as cooperative, and his manner

of relating, social skills, and overall presentation was adequate. Tr. 847-48. Dr.

Ippolito determined that Plaintiff had mild limitations in sustaining concentration;

performing a task at a consistent pace; and sustaining an ordinary routine and

regular attendance at work. Id. at 849. Dr. Ippolito further opined that Plaintiff

had moderate limitations in regulating emotions, controlling behavior, and

maintaining well-being. Id. Lastly, Dr. Ippolito listed Plaintiffs prognosis as “fair,

but would likely improve with follow up for psychiatric treatment and vocational

training.” Jd. at 850.

The ALJ found Dr. Ippolito’s opinion to be partially persuasive, noting that

her opinion “appear[s] to be consistent with psychiatric and substance abuse

problems, but in itself, does not appear to be significant enough to interfere with

[Plaintiffs] ability to function on a daily basis.” Tr. 36. The ALJ further opined

that the opinion “does not provide specific limitations, but does show some findings,

such as impaired remote memory, an anxious affect, tense posture, and restless

motor behavior that demonstrate moderately impaired attention and concentration

and emotional dysregulation, and in turns supports the limitations to occasional

contact with others and occasional, simple changes.” Id.

Contrary to Plaintiffs assertion, the ALJ’s RFC limiting Plaintiff to simple,

routine tasks, occasional interaction with supervisors, coworkers, and the public,

and occasional, simple changes, is consistent with Dr. Ippolito’s moderate

limitations in regulating emotions, controlling behavior, and maintaining well-

being. Allisa P. v. Comm’ of Soc. Sec., 2024 WL 278227, at *10 (W.D.N.Y. Jan. 25,

2024) (“Dr. Farmer’s assessment of moderate limitations in regulating emotions,

controlling behavior, and maintaining well-being is consistent with the ALJ’s RFC

finding for simple, unskilled work involving limited social interaction.”); Jennifer M.

v. Comm’ of Soc. Sec., 2022 WL 19003388, at *7 (N.D.N.Y. Nov. 18, 2022) (“The

ALJ accounted for functional limitations associated with moderate difficulties with

concentration, pace, social interaction, and maintaining a regular schedule by

limiting plaintiff to unskilled work requiring only simple, routine tasks and simple

work-related decisions.”), report and recommendation adopted, 2023 WL 2236607

(N.D.N.Y. Feb. 27, 2023); Barksdale v. Saul, 2019 WL 3842358, at *3—-4 (W.D.N.Y.

Aug. 15, 2019) (rejecting plaintiffs argument that the ALJ “ignored” an opinion

assessing moderate limitations in regulating emotions, controlling behavior, and

maintain well-being, and finding such an opinion was not inconsistent with the RFC

for simple work with only occasional interaction with others). Plaintiffs argument

therefore lacks merit.

B. Additional Evidence Submitted to the Appeals Council

Social Security regulations allow a claimant to submit additional evidence to

the Appeals Council in support of a Request for Review, and the Appeals Council

must accept the evidence as long as it is new, material, and relates to the period on

or before the date of the ALJ’s decision. Hightower v. Colvin, 2013 WL 3784155, at

*3 (W.D.N.Y. Jul. 18, 2018) (citing 20 C.F.R. §§ 416.1470(b), 416.1476(b)(1)). To be

considered “new,” the proffered evidence cannot be cumulative of what is already in

the record. Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988); Wilbon v. Colvin,

2016 WL 5402702, at *5 (W.D.N.Y. Sep. 28, 2016). “Evidence is material if it is

relevant to the claimant’s condition during the time period for which benefits were

denied and there is a reasonable probability that it would have influenced the

Commissioner to decide the claimant’s application differently.” King v. Comm’r of

Soc. Sec., 2020 WL 5248473, at *1 (W.D.N-Y. Sep. 2, 2020) (citing Webb v. Apfel,

2000 WL 1269733, at *14 (W.D.N.Y. Feb. 8, 2000).

“[NJew 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.” Perez v. Chater, 77 F.3d 41,

45 (2d Cir. 1996). The Court then must review the entire administrative record—

including the new evidence—to determine if substantial evidence supports the

ALJ’s decision. Id. at 46; see also 42 U.S.C. § 405(g). In other words, “[t]he relevant

inquiry is not whether the Appeals Council properly determined whether the

evidence was new and material, but whether the ALJ’s decision is supported by

substantial evidence in light of the additional information submitted to the Appeals

Council.” Tracy G. v. Comm’r of Soc. Sec., 2023 WL 2601946, at *6 (W.D.N.Y. Mar.

22, 2023) (citation omitted).

The evidence submitted to the Appeals Council consists of mental medical

source statements from Julie Moll, LMSW, and Jennifer Yerke-McNamara, M.D.

Tr. 8-18. The Appeals Council determined that the evidence “does not relate to

[Plaintiffs] period at issue,” and, “[t]herefore, it does not affect the decision about

whether [Plaintiff] was disabled beginning on or before March 21, 2022.” Tr. 2.

The Appeals Council determined that the new evidence did not relate back to

Plaintiffs period at issue because both opinions are dated after the ALJ rendered

his decision. Id. But that reasoning is not sufficient in determining whether

evidence relates back to the period at issue. Leonard v. Colvin, 2017 WL 496072, at

*5 (E.D.N.Y. Feb. 6, 2017) (“[T]he date alone of new evidence is not determinative if

it relates back to the relevant period. If the Appeals Council did evaluate whether

the evidence related back to the relevant period and concluded it did not, this was

also error. The 2015 report is consistent with Dr. Lattuga’s prior report and

substantiated plaintiffs ongoing complaints regarding the intensity, persistence,

and limiting effects of his claimed disability.”) (citations omitted).

On June 16, 2022, LMSW Moll provided a mental medical source statement,

and opined, among other things, that she had been working with Plaintiff since

2017. Tr. 8-12. LMSW Moll noted that she could not provide an opinion as to

Plaintiffs mental abilities for eight hours a day, and that she could only opine as to

Plaintiffs ability to focus for one hour. See Tr. 10-12. LMSW Moll opined that

because Plaintiff “is overwhelmed when assigned tasks, it is assumed symptoms

would increase as tasks increase” but that she “cannot confirm or deny” whether

that is true. Id. at 12.4

The Court has reviewed LMSW Moll’s mental medical source statement, and finds

that her opinion would not have resulted in a different outcome because it is largely

duplicative of evidence already considered by the ALJ, and because the majority of

her new statement was left blank. Tr. 8-12; see Johnmark C. v. Comm’ of Soc.

Sec., 2023 WL 6977430, at *13 (W.D.N.Y. Oct. 23, 2028) (“[the new opinion] adds

little of note which the ALJ had not already considered”); Heather V. v. Comm’r of

Soc. Sec., 2023 WL 2607301, at *4 (W.D.N.Y. Mar. 23, 2023) (“Still, even when the

Appeals Council errs in failing to consider newly submitted evidence, remand is not

required where the new evidence would not have resulted in a different outcome,

such as where the evidence is merely cumulative or duplicative of evidence that the

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Here, it is clear both statements rejected by the Appeals Council relate back

to the relevant period because they both pertain to the same conditions that

Plaintiff previously complained of. Hightower v. Colvin, 2013 WL 3784155, at *3

(W.D.N.Y. Jul. 18, 2013) (‘Additional 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.”) (citing

Brown v. Apfel, 174 F.3d 59, 64-65 (2d Cir. 1999). For example, both opinions from

Dr. Yerke-McNamara note that Plaintiffs anxiety and depression will be a “lifelong”

struggle. Compare Tr. 1078 (Dr. Yerke-McNamara’s 2021 letter), with id. at 14 (Dr.

Yerke-McNamara’s new medical source statement).

The Court therefore must determine whether there is a “reasonable

possibility” that Dr. Yerke-McNamara’s new opinion would have influenced the ALJ

to decide Plaintiffs application differently. Tricarico v. Colvin, 681 F. App’x 98, 102

(2d Cir. 2017) (“Even if the Appeals Council erred by rejecting additional evidence,

remand is only appropriate where there is a reasonable possibility that this

evidence would have influenced the ALJ to decide the disability determination

differently.”) (summary order) (internal citations and quotations omitted).

Dr. Yerke-McNamara’s new mental medical source statement presents a

reasonable possibility that the ALJ may have decided Plaintiffs claim differently.

Rogers v. Saul, 2020 WL 138551952, at *7 (D. Conn. May 28, 2020) (finding

ALJ already considered.”) (citing Ramsey v. Comm’ of Soc. Sec., 830 F. App’x 37, 40

(2d Cir. 2020).

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“reasonable probability” standard met where new treating physician letter

concluded claimant was “unable to meet competitive standards” in areas of

attendance, concentration, pace, and dealing with stress.”).

Dr. Yerke-McNamara’s new mental medical source statement, dated May 11,

2022, listed Plaintiffs diagnoses as “debilitating anxiety” and “depression.” Tr. 14.

Dr. Yerke-McNamara opined that Plaintiff “has difficulty living life on a sustained

basis.” Id. at 18. Dr. Yerke-McNamara further noted that Plaintiff would be off

task more than 30% of the workday; absent from work more than four days per

month; and opined that Plaintiffs “anxiety and depression [are] even more

overwhelming when around people, in any capacity, and in any situation.” Id. at

17-18. Lastly, Dr. Yerke-McNamara noted that the majority of Plaintiffs mental

abilities and aptitudes precluded all performance in a regular work setting. Id. at

16-17.

Courts in this circuit have remanded where new evidence “undercuts” the

ALJ’s reasoning. Knight v. Astrue, 2011 WL 4073608, at *12-13 (E.D.N.Y. Sep. 13,

2011) (finding questionnaire newly submitted to AC was material where it

“significantly undermined” the ALd’s RFC); Lugo v. Berryhill, 390 F. Supp. 3d 453,

460-61 (S.D.N.Y. 2019) (remanding where Appeals Council rejected new evidence

based on reasonable probability standard “[b]ut that rationale fail[ed] to come to

grips with the fact that the new evidence undercut[ ] the stated rationale of the

ALJ) (citations omitted); Stratton v. Colvin, 51 F. Supp. 3d 212, 218-19 (N.D.N.Y.

2014) (remanding where Appeals Council cursorily rejected new medical opinion

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that provided context to earlier medical opinion rejected by ALJ and addressed

issues raised by the ALJ in rejecting the earlier opinion).5

In finding Dr. Yerke-McNamara’s letter dated April 22, 2021 to be “partially

persuasive,” the ALJ noted that the “opinion does not give specific, vocationally

relevant limitations, and is only partially supported by her progress notes

documenting complaints of depression and anxiety but noting generally normal

attention, concentration, memory, and so forth.” Tr. 36 (citing id. at 619-846). The

ALJ additionally opined that Dr. Yerke-McNamara’s “reference to significant

anxiety, panic attacks, and anhedonia are supportive of mental limitations to

simple, routine tasks, occasional contact with others, and occasional, simple

changes to limit mood dysregulation.” Id. at 36.

Here, the new evidence from Dr. Yerke-McNamara provides additional

context to her 2021 letter and, therefore, may have influenced the ALJ’s evaluation

5 The Commissioner argues that Plaintiff lacked “good cause” for submitting the new

evidence sooner. Dkt. 7~1, at 14-16. “The Second Circuit has held that when evidence ‘did

not exist at the time of the ALJ’s hearing, there is no question that the evidence is ‘new’

and that ‘good cause’ existed’ for the late submission.” Boffa v. Kijakazi, 2023 WL 4545187,

at *9 (E.D.N.Y. Jul. 15, 2028) (citing Pollard v. Halier, 377 F.3d 183, 193 (2d Cir. 2004)).

“District Courts in this Circuit have declined to address the ‘good cause’ requirement where

the Appeals Council did not assert it as a reason for declining to review new evidence.”

Crystal K. v. Comm of Soc. Sec., 2024 WL 4471361, at *10 (D. Vt. Oct. 11, 2024) (citing

Bridget P. v. Comm’r of Soc. Sec., 2023 WL 2402782, at *9 (N.D.N.Y. Mar. 8, 2023)

(collecting cases)). “These decisions are supported by the well understood principle, that

‘reviewing courts remain bound by traditional administrative law principles, including the

rule that judges generally must assess the lawfulness of an agency’s action in light of the

explanations the agency offered for it rather than any ex post rationales a court can

devise.” Bridget P., 2023 WL 2402782, at *10 (citing Garland v. Ming Dai, 593 U.S. 357,

369 (2021)). Because the Appeals Council did not deny review of the ALJ’s decision on this

ground, the Court declines to consider whether Plaintiff has shown “good cause” for failing

to present the evidence sooner.

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of Plaintiffs RFC, and ultimately his disability determination. Daniella A. v.

Comm’ of Soc. Sec., 2023 WL 155424, at *5 (W.D.N.Y Jan. 11, 2023) (“[W]hile it is

possible that the 2020 opinions . . . might not be relevant to the period at issue, it is

just as possible that the opinions clarify Daniella’s anxiety, PTSD, and depression,

all of which the ALJ found to be severe impairments during the relevant time

period.”) (citations omitted); L.M. v. Kijakazi, 2022 WL 16822134, at *7 (D. Vt. Aug.

29, 2022) (“Evidence that post-dates an ALJ’s decision can be material if it sheds

light on the severity and continuity of the plaintiffs preexisting impairments.”)

(internal alterations, citations, and quotations omitted). Thus, if the ALJ “had the

opportunity to review” the additional evidence, “it is reasonably probable that ... he

would have reached a different conclusion regarding Plaintiffs [RFC].”

Walentynowicz v. Comm’r of Soc. Sec., 2024 WL 2972814, at *5 (E.D.N.Y. Jun. 13,

2024).

Under these circumstances, the appropriate course is remand “for

consideration in light of [the] new evidence.” Vosburgh v. Comm’ of Soc. Sec., 2019

WL 2428501, at *6 (W.D.N.Y. Jun. 11, 2019). “On remand, the Commissioner is

free to consider how the new evidence affects the entirety of the ALJ’s decision.”

Lugo, 390 F. Supp. 3d at 461.

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CONCLUSION

For the reasons stated above, the Court GRANTS in part and DENIES in

part Plaintiffs motion for judgment on the pleadings (Dkt. 6-1), and DENIES the

Commissioner’s cross-motion for judgment on the pleadings (Dkt. 7-1). The

decision of the Commissioner is VACATED, and the matter is REMANDED for

further administrative proceedings consistent with this decision.

SO ORDERED.

\8

Dated: June __, 2025

Buffalo, New York

L L. SINATRA, JR.

UNITED STATES DISTRICT JUDGE

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