Almadi

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

______________________________________

NIBRAS A.,

DECISION

Plaintiff, and

v. ORDER

FRANK BISIGNANO,1 Commissioner of 24-CV-114-LGF

Social Security, (consent)

Defendant.

______________________________________

APPEARANCES: LEWIS L. SCHWARTZ, PLLC

Attorneys for Plaintiff

LEWIS L. SCHWARTZ, of Counsel

1231 Delaware Avenue

Suite 103

Buffalo, New York 14209

MICHAEL DiGIACOMO

UNITED STATES ATTORNEY

Attorney for Defendant

Federal Centre

138 Delaware Avenue

Buffalo, New York 14202

and

CANDANCE MARIE BROWN CASEY

Special Assistant United States Attorney, of Counsel

Social Security Administration

Office of General Counsel

6401 Security Boulevard

Baltimore, Maryland 21235

JURISDICTION

On October 2, 2025, the parties to this action consented pursuant to 28 U.S.C.

1 Frank Bisignano became the Commissioner of the Social Security Administration on May 7, 2025, and,

pursuant to Fed.R.Civ.P. 25(d), is substituted as Defendant in this case. No further action is required to

continue this suit by reason of sentence one of 42 U.S.C. § 405(g).

§ 636(c) to proceed before the undersigned in accordance with this court’s June 29,

2018 Standing Order. The matter is presently before the court on motions for judgment

on the pleadings filed by Plaintiff on July 1, 2024 (Dkt. 4), and by Defendant on July 30,

2024 (Dkt. 6).

BACKGROUND

Plaintiff Nibras A. (“Plaintiff”), brings this action under Titles II and Title XVI of the

Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial

review of the Commissioner of Social Security’s final decision denying Plaintiff’s

application (“application”) filed with the Social Security Administration (“SSA”) on

November 10, 2020, for Supplemental Security Income under Title XVI of the Act (“SSI”

or “disability benefits”). AR2 at 209-10. Plaintiff alleges she became disabled on August

26, 2019, based on difficulty breathing, mental health, back pain, and headaches. AR

at 217, 221. Plaintiff’s application initially was denied on May 10, 2021, AR at 81, 105-

11, and upon reconsideration on December 30, 2021. AR at 104, 117-28.

Plaintiff timely filed a request for an administrative hearing (“hearing”), AR at 129,

which was granted with the hearing to be held before Administrative Law Judge (“ALJ”)

William M. Weir (“the ALJ”). AR at 168-196. By letter to the ALJ dates November 3,

2022, Nicole Blackwell (“Blackwell”), lead paralegal with Mental Health Advocates of

WNY (“MHA”), advised of medical evidence that was outstanding and requested that in

the event the records were not submitted before the hearing, that the ALJ refrain from

issuing a hearing decision until the records were provided. AR at 332. As scheduled,

2 References to “AR” are to the Bates-stamped pages of the Administrative Record electronically filed by

Defendant on April 1, 2024 (Dkt. 3).

the hearing was held on November 10, 2022 before ALJ Weir in Buffalo, New York. AR

at 38-64. Appearing and testifying at the hearing were Plaintiff, represented by

Blackwell, impartial vocational expert (“VE”) Christine Ditrinco, and “Sabeen,” an Arabic

interpreter (the “interpreter”).3 During the hearing, Blackwell advised that the

outstanding medical records were obtained and either determined to be irrelevant and

not submitted, or relevant and submitted to the ALJ who acknowledged their receipt,

adding that the records would be “exhibited,” i.e., added as medical records in the AR.

On March 3, 2023, the ALJ issued a decision denying Plaintiff’s claims, AR at 7-30

(“ALJ’s Decision”), which Plaintiff timely appealed to the Appeals Council. AR at 206-

08. On January 22, 2024, the Appeals Council denied Plaintiff’s request to review the

ALJ’s decision, rendering it the Commissioner’s final decision. AR at 1-6. On February

1, 2024, Plaintiff commenced this action seeking review of the ALJ’s decision denying

Plaintiff disability benefits.

On July 1, 2024, Plaintiff moved for judgment on the pleadings (Dkt. 4)

(“Plaintiff’s Motion”), attaching the Memorandum of Law in Support of Plaintiff’s Motion

for Judgment on the Pleadings (Dkt. 4-1) (“Plaintiff’s Memorandum”), and an appendix

of additional medical records (Dkt. 4-2) (“Appendix”). On July 30, 2024, Defendant

moved for judgment on the pleadings (Dkt. 6) (“Defendant’s Motion”), attaching the

Commissioner’s Memorandum in Support of His Motion for Judgment on the Pleadings

and in Response to Plaintiff’s Brief, Pursuant to Local Rule 5.5 (Dkt. 6-1) (“Defendant’s

Memorandum”). Filed on August 20, 2024, was Plaintiff’s Reply (Dkt. 7) (“Plaintiff’s

Reply”). Oral argument was deemed unnecessary.

3 Sabeen’s last name is not in the record. Plaintiff does not speak English, but only Arabic.

Based on the following, Plaintiff’s Motion is DENIED; Defendant’s Motion is

GRANTED.

FACTS4

Plaintiff Nibras A. (“Plaintiff”), born August 16, 1975, immigrated from Iraq to the

United States in 2016. AR at 217, 517. Plaintiff does not speak, write, nor understand

English, but completed college in Iraq, majoring in Arabic. AR 220, 222, 517. Plaintiff

lived in an apartment with her husband and four of her six children. AR at 241, 573.

Plaintiff was 44 years old as of her alleged disability onset date (“DOD”) of August 26,

2019, and 47 years old as of March 3, 2023, the date of the ALJ’s Decision. AR at 10,

24. Plaintiff does not drive and does not have a driver’s license, but depends on her

husband to drive her places or uses public transportation. AR 244, 573. Plaintiff does

not need any help with self-care or grooming, prepares meal for her family, grocery

shops and does laundry with assistance, watches television, listens to music,

participates in social media, talks on the phone, video chats with her mother, and takes

care of her minor children, AR 242-45, 575, but does not socialize with anyone outside

of her family. AR at 245, 575. Plaintiff’s past work includes as an aide in a day care,

and working in a school cafeteria, but Plaintiff has not worked since August 26, 2019.

AR at 221-22.

Plaintiff, who is morbidly obese, has been medically treated for asthma, lumbar

spondylosis, obstructive sleep apnea (“OSA”), headaches, an anxiety disorder, and a

depressive disorder. Plaintiff attributes her mental health impairments to being raised in

4 In the interest of judicial economy, recitation of the Facts is limited to only those necessary for

determining the pending motions for judgment on the pleadings, specifically, Plaintiff’s argument that the

ALJ erred by failing to consider Plaintiff’s obstructive sleep apnea and accompanying headaches and

memory loss as severe impairments.

war-torn Iraq where she witnessed much death and violence and her mother gave her

valium to help Plaintiff sleep despite fear of the bombs that exploded near their house.

AR at 376, 380.

On April 23, 2019, Plaintiff established mental health treatment at Linwood

Community Services (“Linwood”), were she saw Licensed Master Social Worker

(“LMSW”) Alexander Rubin (“Counselor Rubin”), Mental Health Counselor Kimberly

Rave (“Counselor Rave”), and Nurse Practitioner (“NP”) Dina Fisher (“NP Fisher”). AR

at 388-483.

On November 9, 2020, Plaintiff established treatment at Pulmonary Group of

WNY (“Pulmonary Group”) with pulmonologist Hartwig Boepple, M.D. (“Dr. Boepple”) for

complaints of shortness of breath. AR at 353-55.

On January 11, 2021, Physician’s Assistant (“PA”) Lisa Porter (“PA Porter”) with

UBMD Family Medicine at BestSelf Behavioral Health, UBMD Physicians Group

(“UBMD”), completed a Medical Examination for Employability Assessment, Disability

Screening, and Alcoholism/Drug Addiction Determination for New York State

Department of Social Services Office of Temporary and Disability Assistance (“NYS

DSS”), checking boxes indicating there was no evidence of limitations to Plaintiff’s

mental functioning. AR at 871-72.

On March 21, 2022, Plaintiff established treatment at Dent Neurologic Institute

(“Dent”), with neurologist Rick Magun, M.D. (“Dr. Magun”) for a medical-interpretation of

a long history of memory difficulties, anxiety, and difficulty concentrating and insomnia.

AR at 608. Plaintiff was also treated at Dent by chronic pain management specialist

Ashraf Henry, M.D. (“Dr. Henry”), id. at 899-902, and PA Megan Case (“PA Case”). Id.

at 798-800.

On October 13, 2022, Plaintiff sought to establish care at Neighborhood Health

Center (“NHC”) where she was examined by PA Lisa Scholl (“PA Scholl”) who reported

Plaintiff complained of headaches. AR at 783-88.

In connection with her disability benefits application, on April 21, 2021, Plaintiff

underwent an internal medicine examination by consultative physician Hongbiao Liu,

M.D. (“Dr. Liu”) who also reviewed an X-ray of Plaintiff’s lumbosacral spine. AR at 517-

21. Dr. Liu diagnosed Plaintiff with degenerative joint disease, gall stones, history of

chronic whole-body pain, history of anxiety and depression, history of gastroesophageal

reflux disease (“GERD”), history of asthma, and morbid obesity, assessed Plaintiff’s

prognosis as stable, and found Plaintiff could work with mild to moderate limitations “for

prolonged walking, bending, kneeling, squatting, lifting, carrying, overhead reaching,

prolonged sitting, standing, and stair climbing,” and that Plaintiff “should avoid dust and

other irritating factors due to asthma condition.” AR at 520-21. On that same date,

Plaintiff underwent a psychiatric evaluation by consultative psychologist Susan

Santarpia, Ph.D. (“Dr. Santarpia”), who diagnosed major depressive disorder, recurrent

episodes, moderate, and unspecified anxiety disorder, and stated that based on the

mental status examination, Plaintiff’s only mental work limitations included mild

impairment “demonstrated in regulating emotion, controlling behavior, and maintaining

well-being,” that such “[d]ifficulties are caused by stressors,” but that Plaintiff’s mental

impairment “does not appear to be significant enough to interfere with the claimant’s

ability to function on a daily basis.” Id. at 522-25. On December 1, 2021, Plaintiff

underwent a second consultative psychiatric evaluation by Dr. Santarpia. AR at 573-76.

Upon examination, Plaintiff’s mental status and Dr. Santarpia’s medical source

statement were essentially unchanged from the earlier psychiatric examination, AR at

575, with Dr. Santarpia again diagnosing Plaintiff with major depressive disorder,

recurrent episodes, and unspecified anxiety disorder. Id. at 576.

On May 10, 2021, Plaintiff’s medical records were reviewed by State agency

medical consultants J. Lawrence, M.D. (“Dr. Lawrence”), in connection with the SSA’s

initial review of Plaintiff’s disability benefits application, AR at 65-80, and on December

7, 2021, by J. May, Ph.D. (“Dr. May”), upon reconsideration of the initial denial of the

application. AR at 82-103. Based on their separate reviews of the medical evidence,

both Drs. Lawrence and May found Plaintiff’s severe impairments included disorders of

the skeletal spine and asthma, but Plaintiff’s trauma and stressor-related disorders,

depressive, bipolar and related disorders, and anxiety and obsessive-compulsive

disorders were not severe. Id. at 70-73, 91-93. Both Drs. Lawrence and May also

concurred that Plaintiff, despite her impairments, retained the “residual functional

capacity” or “RFC” for light work with some additional limitations including occasional

postural limitations. AR at 74-77, 96-101.

DISCUSSION

1. Standard and Scope of Judicial Review

A claimant is “disabled” within the meaning of the Act and entitled to disability

benefits when she is unable “to engage in 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.” 42 U.S.C. §§

416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner’s

determination that a claimant is not disabled if the factual findings are not supported by

substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g),

1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In

reviewing a final decision of the SSA, a district 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) (internal quotation marks and citation omitted). “Substantial evidence is more

than a mere scintilla. It means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. It is not, however, the district court’s

function to make a de novo determination as to whether the claimant is disabled; rather,

“the reviewing court is required to examine the entire record, including contradictory

evidence and evidence from which conflicting inferences can be drawn” to determine

whether the SSA’s findings are supported by substantial evidence. Id. “Congress has

instructed . . . that the factual findings of the Secretary,5 if supported by substantial

evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.

1982).

In short, the issue is not whether substantial evidence supports the claimant’s

argument, but “whether substantial evidence supports the ALJ’s decision.” Bonet ex rel.

T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (italics in original). “Under this ‘very

deferential standard of review,’ ‘once an ALJ finds facts, we can reject those facts only if

5 Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of

the Secretary of Health and Human Services in Social Security cases was transferred to the

Commissioner of Social Security, effective March 31, 1995.

a reasonable factfinder would have to conclude otherwise.’” Id. at 58-59 (quoting Brault

v. Social Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir. 2012) (italics in original).

2. Disability Determination

The definition of “disabled” is the same for purposes of receiving Disability

Insurance Benefits (“DIB”) under Title II of the Act as for SSI benefits under Title XVI of

the Act. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable

regulations set forth a five-step analysis the Commissioner must follow in determining

eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v.

Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464, 467 (2d

Cir. 1982). The first step is to determine whether the applicant is engaged in substantial

gainful activity during the period for which the benefits are claimed. 20 C.F.R. §§

404.1520(b) and 416.920(b). The second step is whether the applicant has a severe

impairment which significantly limits the physical or mental ability to do basic work

activities, as defined in the relevant regulations. 20 C.F.R. §§ 404.1520(c) and

416.920(c). Third, if there is an impairment and the impairment, or its equivalent, is

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“Appendix 1” or

“the Listings”), and meets the duration requirement of at least 12 continuous months,

there is a presumption of inability to perform substantial gainful activity, and the claimant

is deemed disabled, regardless of age, education, or work experience. 42 U.S.C. §§

423(d)(1)(A) and 1382a(c)(3)(A); 20 C.F.R. §§ 404.1520(d) and 416.920(d). As a fourth

step, however, if the impairment or its equivalent is not listed in Appendix 1, the

Commissioner must then consider the applicant’s RFC which is the ability to perform

physical or mental work activities on a sustained basis, notwithstanding the limitations

posed by the applicant’s collective impairments, see 20 C.F.R. §§ 404.1520(e)-(f), and

416.920(e)-(f), and the demands of any past relevant work (“PRW”). 20 C.F.R. §§

404.1520(e) and 416.920(e). If the applicant remains capable of performing PRW,

disability benefits will be denied, id., but if the applicant is unable to perform PRW

relevant work, the Commissioner, at the fifth step, must consider whether, given the

applicant’s age, education, and past work experience, the applicant “retains a residual

functional capacity to perform alternative substantial gainful work which exists in the

national economy.” Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quotation marks

and citation omitted); 20 C.F.R. §§ 404.1560(c) and 416.960(c). The burden of proof is

on the applicant for the first four steps, with the Commissioner bearing the burden of

proof on the final step. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Burgess v.

Astrue, 537 F.3d 117, 128 (2d Cir. 2008). All five steps need not be addressed because

if the claimant fails to meet the criteria at either of the first two steps, the inquiry ceases

and the claimant is not eligible for disability benefits, but if the claimant meets the

criteria for the third or fourth step, the inquiry ceases with the claimant eligible for

disability benefits. 20 C.F.R. §§ 404.1520 and 416.920.

In the instant case, the ALJ found that Plaintiff has not engaged in substantial

gainful activity (“SGA”) since November 10, 2020, the application date. AR at 12. The

ALJ found Plaintiff suffers from the severe impairments of obesity, asthma, lumbar

spondylosis, an anxiety disorder, and a depressive disorder, id., but that other medically

determinable impairments, including OSA, daily headaches, and hypertension, did not

significantly limit Plaintiff’s physical or mental ability to do basic work activities and thus

are not severe, id. at 12-13. The ALJ further found that Plaintiff does not have an

impairment or combination of impairments meeting or medically equal to the severity of

any listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 13-15.

Despite her impairments, the ALJ found Plaintiff retains the RFC to perform sedentary

work as defined in 20 C.F.R. § 416.967(a), with additional limitations including the

opportunity to change position between sitting, standing, or walking every two hours for

10 minute periods, no use of ladders, ropes, or scaffolds, can incidentally (defined as up

to 5% of the time) kneel, crouch, and crawl, can perform simple and repetitive tasks

involving one and two steps, cannot perform complex work (defined as work involving

multiple simultaneous goals or objectives, or the need to independently set quality and

quantity standards, and Plaintiff must avoid concentrated exposure to pulmonary

irritants. Id. at 15-23. Although Plaintiff has no past relevant work, the ALJ found that

Plaintiff, based on her age, high school education, work experience, and RFC, could

perform work existing in significant numbers in the national economy including as a

table worker and a bench hand. Id. at 23-24. Accordingly, the ALJ found Plaintiff was

not disabled as defined in the Act since November 10, 2020, when Plaintiff filed her

application. Id. at 24.

3. Analysis of Plaintiff’s Arguments

In support of her motion, Plaintiff submitted an appendix of additional medical

records pertaining to Plaintiff’s neurological treatment at Dent and which Plaintiff

maintains are relevant to this action (Dkt. 4-2) (“Appendix”), argues the Commissioner

committed legal error by failing to consider Plaintiff’s OSA and the accompanying

headaches and memory loss as severe impairments, and urges the undersigned to

remand the matter with instructions that the ALJ find Plaintiff’s OSA a severe

impairment and for consideration of how Plaintiff’s symptoms of memory loss and

headaches affect her ability to work.6 Plaintiff’s Memorandum at 9-13. Defendant

opposes the belated introduction of new evidence, i.e., the Appendix, arguing Plaintiff

has not satisfied the applicable test for whether belatedly submitted medical records can

support a remand for further proceedings as Plaintiff requests, Defendant’s

Memorandum at 6-9, substantial evidence in the record supports the ALJ’s

determination at step 2 of the five-step sequential analysis that Plaintiff’s OSA,

headaches, and memory loss are not severe impairments, id. at 9-17, and in any event,

because the ALJ’s analysis proceeded beyond step 2 and included consideration of all

symptoms of Plaintiff’s impairments, both severe and non-severe, in formulating

Plaintiff’s RFC, any error was harmless. Id. at 17-20. In reply, Plaintiff argues that

Plaintiff’s inability to communicate in English posed challenges to Plaintiff’s counsel’s

ability to obtain all of Plaintiff’s treatment records, all of which relate to the period prior to

the ALJ’s decision and establish Plaintiff continued to experience memory loss and

headaches attributed to her OSA, and that upon first learning on February 6, 2024, of

Plaintiff’s ongoing treatment at Dent, Plaintiff’s counsel immediately requested the

records from Dent, but did not receive them until June 4, 2024. Defendant’s Reply ¶¶

11-15. There is no merit to Plaintiff’s arguments.

Insofar as Plaintiff maintains the ALJ erred at step 2 of the sequential analysis by

failing to consider Plaintiff’s OSA, chronic headaches, and memory loss to be severe

impairments, Plaintiff’s Memorandum at 9-13, the Second Circuit considers such errors

6 Because Plaintiff’s challenge to the ALJ’s Decision is limited to the ALJ’s failure to consider Plaintiff’s

OSA, headaches, and memory loss severe, the court’s consideration of the ALJ’s decision likewise is

limited to the impact of these asserted impairments on Plaintiff’s ability to perform basic work activities

and substantial gainful activity.

harmless provided the ALJ proceeds with the subsequent steps of the analysis during

which the effects of the subject non-severe impairments are clearly considered. See

Stanton v. Astrue, 370 Fed.Appx. 231, 233 n. 1 (2d Cir. 2010) (noting the ALJ’s

decision, including consideration of the combination of the plaintiff’s severe and non-

severe impairments and the combined effects of all symptoms in formulating the RFC,

rendered harmless any error by the ALJ in failing to consider the plaintiff’s neuropathy a

severe impairment); Brenda D. v. Comm’r of Soc. Sec., 2021 WL 1856905, at * 4

(W.D.N.Y. May 10, 2021) (citing Reices-Colon v. Astrue, 523 Fed.Appx. 796, 798 (2d

Cir. 2013) (because the ALJ specifically considered the plaintiff’s anxiety and panic

attacks during the subsequent steps of the sequential analysis, any error at step 2 in

failing to find such impairments were non-severe was harmless)).

Plaintiff listed headaches among her claimed disabling conditions in filing for

disability benefits, but did not include memory loss or any other memory impairment as

a disability condition. AR at 217, 221. Plaintiff, however, argues that her “memory loss

and headaches . . . are symptoms from her obstructive sleep apnea.” Plaintiff’s

Memorandum at 13. Regardless of whether Plaintiff’s claimed headaches and memory

loss are separate impairments or symptoms of her OSA, the ALJ specifically stated that

“[d]espite finding some of the claimant’s alleged impairments to be non-severe, I will

take into account all allegations of symptoms arising from both severe and non-severe

impairments in determining the claimant’s [RFC].” AR at 13 (italics added). See also

AR at 21 (ALJ repeating the RFC formulation was based on consideration of Plaintiff’s

“spinal impairment, obesity, and asthma and in contemplation of her other non-severe

impairments,” and the fact that the AR “shows significant improvement with treatment”

of Plaintiff’s mental impairments). A thorough reading of the ALJ’s Decision bears this

out.

The ALJ discussed that treatment for Plaintiff’s OSA included night use of an

APAP machine,7 and that Plaintiff continued to improve with its use. AR at 12 (citing AR

at 597 (Dr. Boepple assessing Plaintiff on October 18, 2021 as “doing well on APAP”).

Dr. Santarpia’s December 1, 2021 consultative psychiatric evaluation of Plaintiff showed

unremarkable findings with regard to attention and concentration, recent and remote

memory, and cognition. AR at 19 (referencing AR at 575). PA Porter’s examination of

Plaintiff on March 31, 2022, was unremarkable with regard to Plaintiff’s orientation,

speech, language, attention span, concentration, memory and fund of knowledge. AR

at 19-20 (referencing AR at 609-10). The ALJ considered that at Plaintiff’s August 24,

2022 examination at Dent, Dr. Magun reported Plaintiff was tolerating Topiramate well

and that the medication was beneficial to Plaintiff’s daily headaches, AR at 13

(referencing AR at 794), and that on October 17, 2022, Dr. Henry reported a CT scan of

Plaintiff’s brain was unremarkable. Id. (referencing AR at 900). According to a

December 22, 2020 Individual Progress Note prepared by NP Fisher, both Plaintiff’s

short-term and long-term memories were intact, and her “attention and concentration”

were reported as “non distractable/attentive.” AR at 19 (referencing AR at 482).

Relevantly, “an ALJ is not required to discuss every piece of evidence

submitted,” and “failure to cite specific evidence does not indicate that such evidence

was not considered.” Brault, 683 F.3d at 448 (citation and quotation marks omitted).

7 “CPAP therapy” involves use of a machine with a mask and tube to deliver constant air pressure to keep

air passages open during sleep. An “APAP machine” is similar to a CPAP machine but delivers “auto-

adjusting” pressure.

Here, other evidence in the record supports the ALJ’s decision that Plaintiff’s OSA,

including symptoms of Plaintiff’s headaches and memory loss, were not disabling.

On December 12, 2019, Plaintiff complained to NP Fisher of a headache, but

Plaintiff was oriented in all spheres, i.e., person, place, time, and situation, recent and

remote memory were intact, and Plaintiff was not distractable but attentive. AR at 473.

On November 9, 2020, Dr. Boepple diagnosed Plaintiff with OSA for which diagnostic

imaging was prescribed, AR at 354, which confirmed the diagnosis on December 28,

2020, id. at 350-51, and CPAP therapy was recommended. AR at 514. On February 4,

2021, Plaintiff reported to Counselor Rave at Linwood that she obtained a new

breathing machine. AR at 446. On March 1, 2021, Dr. Boepple reported Plaintiff was

“improved” with CPAP, but had difficulty tolerating it. AR at 514-15. On April 5, 2021,

Plaintiff was “doing well” on an APAP machine. Id. at 511-12.

On August 29, 2021, Plaintiff was seen by PA Porter in follow-up at UBMD. AR

at 662-63. PA Porter referred Plaintiff to a neurologist for Plaintiff’s reported memory

loss and confusion at times. AR at 662-63. On October 18, 2021, Dr. Boeppel reported

Plaintiff was using her APAP machine “nightly with benefit.” AR at 596, 597.

On March 21, 2022, upon PA Porter’s referral, Plaintiff established treatment at

Dent. AR at 608. Upon examining Plaintiff on March 21, 2022, Dr. Magun assessed

chronic daily headaches, morbid obesity, body mass index (“BMI”) between 60.0 and

69.9, anxiety, and memory loss. AR at 610. Dr. Magun prescribed Topiramate

(migraine headache medication) for relief of daily headaches and to help with

concentration, and laboratory blood tests for vitamins D and B12 levels as well as

methylmalonic acid levels for memory complaints. Id. at 610-11. On April 19, 2022, Dr.

Boepple reported Plaintiff continued to do well with nightly use of the APAP machine.

AR at 778-79.

On June 10, 2022, Plaintiff followed up at Dent with PA Case and reported

improved headache symptoms while on Topiramate with decreased headaches and

occasional memory loss. Id. at 798-99. PA Case increased the Topiramate dosage,

reminded Plaintiff to complete the prescribed blood tests, and recommended weight

loss. Id. at 799. On August 24, 2022, Plaintiff was seen at Dent by Dr. Magun and

reported fewer and less severe headaches, some weight loss which was considered

helpful for Plaintiff’s OSA, and complaints of occasional memory loss. AR at 794.

Plaintiff’s still had not completed the prescribed blood tests, id. at 794. After examining

Plaintiff, Dr. Magun diagnosed memory loss secondary to OSA and chronic daily

headaches and increased the Topiramate dosage. Id. at 796.

On September 19, 2022, Plaintiff presented to the emergency department at

Buffalo General Hospital with complaints of headache and dizziness. AR at 882-98.

Plaintiff reported that for the past week, upon awakening in the morning, she

experienced a sensation that the room was spinning, but the sensation went away

during the day, and that the dizziness occurred upon standing up quickly. Id. at 882.

Upon examination, Plaintiff was asymptomatic, not dizzy, neurologically intact and not

ataxic (lack of voluntary muscle coordination causing clumsy, unsteady movements and

balance issues). Id. at 884. A CT scan of Plaintiff’s head was negative. Id. at 884, 891.

Plaintiff was diagnosed with dizziness, vertigo, and anemia, and Plaintiff was advised to

take Tylenol as needed. Id. at 884, 886.

Accordingly, the ALJ’s determination that Plaintiff’s OSA, accompanied by

chronic headaches and complaints of memory loss, were not sufficiently severe to

interfere with Plaintiff’s ability to perform work related activities is supported by other

evidence in the record.

Nor do the additional medical records Plaintiff belatedly submitted as the

Appendix require remand. As Defendant argues, Defendant’s Memorandum at 6-7, the

type of remand Plaintiff seeks, i.e., a remand pursuant to sentence six of 42 U.S.C. §

405(g) ordering the Commissioner to take additional evidence, requires “a showing that

there is new evidence which is material and that there is good cause for the failure to

incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g)

(“sentence six remand”). Defendant further argues Plaintiff has not met the relevant

three-pronged test established by the Second Circuit in Tirado v. Brown, 842 F.2d 595,

597 (2d Cir. 1988) (“Tirado”) to determine whether the new evidence, specifically, the

Appendix, merits a sentence six remand. Id. at 7-9.

In particular, the Second Circuit instructs that for the court to accept belatedly

submitted evidence in support of a sentence six remand, the Plaintiff must show

That the proffered evidence is (1) ‘new’ and not merely cumulative of what is

already in the record, . . . and that it is (2) material, that is, both relevant to the

claimant’s condition during the time period for which benefits were denied and

probative, . . . [and] (3) good cause for her failure to present the evidence earlier.

Tirado, 842 F.2d at 597 (internal quotation marks and citations omitted).

Here, it is undisputed that the medical records in the Appendix are both new and

relevant to the time period for which Plaintiff was denied disability benefits, yet even

assuming, arguendo, that Plaintiff has established good cause for failing to present the

medical records earlier, the Tirado requirements are not met because the records are

not material because they are not probative, i.e., not likely to change the outcome of the

Commissioner’s Decision. Tirado, 842 F.2d at 597 (“The concept of materiality requires

. . . a reasonable possibility that the new evidence would have influenced the Secretary

to decide the claimant’s application differently.”). Moreover, regardless of whether the

medical records in the Appendix are considered, Plaintiff has not shown that a sentence

six remand is warranted.

Specifically, the medical records at issue establish that Plaintiff continued to be

treated at Dent for headaches and complaints of memory loss, but they fail to establish

Plaintiff’s symptoms are disabling. The medical records include examinations by PA

Case on October 21, 2022, Dkt. 4-2 at 10-13, by Dr. Magun on December 2, 2022, id. at

7-9, by Dr. Henry on January 10, 2023, id. at 4-6, and by one Ryan C. Bowe, M.D. (“Dr.

Bowe”) on January 13, 2023. Id. at 1-3. On October 21, 2022, PA Case reported

Plaintiff was seen in follow-up with complaints of headaches and difficulty concentrating,

but Plaintiff reported improved headaches and memory with Topiramate and denied any

worsening of memory, concentration, or headaches. Id. at 10. On December 2, 2022,

Dr. Magun saw Plaintiff in follow-up at which time Plaintiff reported no further

improvement since her last visit, but a neurological examination was entirely normal

showing, relevantly, normal attention span and concentration, and recent and remote

memory were appropriate for her age. Id. at 7. Dr. Magun assessed that Plaintiff’s

history of memory loss was “likely secondary to severe sleep apnea,” noting Plaintiff’s

high BMI and that a loss of 25 pounds would likely improve Plaintiff’s OSA as well as

her memory, and referred Plaintiff to a weight loss clinic. Id. at 8. On January 10, 2023,

Plaintiff saw Dr. Henry for complaints of chronic headaches and chronic low back pain

radiating into the left lower extremity. Id. at 4. Dr. Henry’s examination was largely

focused on Plaintiff’s low back pain with no assessment or further comment on Plaintiff’s

headaches. Id. at 4-6. On January 13, 2023, Plaintiff was evaluated for weight loss

treatment by Dr. Bowe who assessed Plaintiff with morbid obesity, BMI between 60.0

and 69.9, chronic lumbar radiculopathy, hypertension, and chronic tension-type

headache, not intractable (occurring more than 15 times per month or continuous). AR

at 1-3. Dr. Bowe advised that Plaintiff “exercise, and to use stretching and heat therapy

daily on the neck and shoulders in order to reduce myalgia [muscle pain] and help

prevent tension headaches.” Id. at 2.

Significantly, consideration of the newly submitted medical records from Dent is

not likely to change the outcome of the Commissioner’s Decision. Tirado, 842 F.2d at

597. Accordingly, Plaintiff’s request for a sentence six remand for consideration of the

medical records in the Appendix is DENIED.

Here, as noted, see Discussion, supra, at 8-9, the issue is not whether

substantial evidence supports the claimant’s argument, but “whether substantial

evidence supports the ALJ’s decision.” Bonet, 523 Fed.Appx. at 59 (quoting Brault, 683

F.3d at 448) (italics in original). In the instant case, the ALJ’s decision that Plaintiff was

not disabled between the date of her disability benefits application and the date of the

ALJ’s decision is supported by substantial evidence in the record, and no remand for

consideration of the additional medical records submitted by Plaintiff is warranted.

CONCLUSION

Based on the foregoing, Plaintiff’s Motion (Dkt. 4) is DENIED; Defendant’s Motion

(Dkt. 6) is GRANTED. The Clerk of Court is DIRECTED to close the file.

SO ORDERED.

/s/ Leslie G. Foschio

_____________________________________

LESLIE G. FOSCHIO

UNITED STATES MAGISTRATE JUDGE

DATED: February 6, 2026

Buffalo, New York