WDNY Issues Trio of Remands

Empire Justice Center July 31, 2019

The Empire Justice Center received a series of remands from the Western District of New York in recent months.


In Lawrence v. Commissioner of Social Security, 2019 WL 2491920 (W.D.N.Y. June 14, 2019), Magistrate Judge Jonathan Feldman agreed that the ALJ erred in failing to consider the claimant’s non-exertional limitations. At Step two of the Sequential Evaluation, the ALJ concluded the claimant suffered from multiple sclerosis (MS) and cervical spondylosis, but found her allegations of a mental impairment were not consistent with the evidence of record.   The court disagreed, finding that the claimant had clearly met the de minimus burden at Step two. Magistrate Feldman cited to evidence of record paying tribute to the fact that the claimant experienced typical and debilitating symptoms of MS, including blurry vision, headaches, cognitive impairments, loss of balance, and fatigue. He also acknowledged her symptoms of depression, another typical result of an MS diagnosis.


The Magistrate rejected the Commissioner’s argument that the ALJ’s failure to incorporate any non-exertional limitations into the residual functional capacity (RFC) assessment was harmless. The court found it was “simply not credible to argue that by limiting plaintiff to unskilled or light work the ALJ has adequately addressed the nature and severity of Lawrence’s documented non-exertional limitations. Plaintiff’s non-exertional limitations go far beyond having trouble with concentration, persistence and pace.” Nor was there any support for the Commissioner’s arguments that the ALJ accounted for the mental limitations in the rest of his decision. The ALJ had expressly given “little weight” to the opinions of the treating sources based on the non-exertion impairments. Because the ALJ had failed to consider the limitations throughout the decision, remand was required.


In Vosburgh v. Commissioner of Social Security, 2019 WL 2428501 (June 11, 2019), Magistrate Judge Marian Payson found that evidence submitted to the Appeals Council should have been considered new and material. She held that the Appeals Council erred in summarily rejecting the evidence submitted simply because it was generated after the ALJ’s decision. She remanded the claim for reconsideration of the new evidence.


Magistrate Payson considered the new evidence under 20 C.F.R. §§ 404.970(a)(5), (b) & 416.1470(a)(5),(b), which instructs the Appeals Council to consider additional evidence if the claimant can show good cause for not submitting it to the ALJ; it is new, material, and relates to the period on or before the ALJ’s decision; and there is a reasonable probability it would change the outcome. The new evidence submitted to the Appeals Council consisted of treatment notes from the claimant’s treating physician dated eight days after the ALJ issued his decision. The court found the plaintiff had good cause for failing to submit the evidence to the ALJ as it did not exist before the decision was issued.


The Magistrate Judge also found the treatment notes were not merely cumulative. The ALJ had found at Step two of the Sequential Evaluation that fibromyalgia was not a medically determinable impairment and thus not severe. As a result, the ALJ did not credit any of the claimant’s statements regarding her fibromyalgia-related symptoms or consider their potentially functional limitations. But the treatment notes corroborated the claimant’s complaints. The notes also verified relevant diagnostic criteria for fibromyalgia set forth in SSR 12-2p. According to the court, had the treatment notes been properly considered, they could have affected the ALJ’s Step two determination, as well as the remaining steps of the sequential analysis.


The court specifically held that evidence generated after an ALJ decision should not be rejected solely because of its timing. It cited Second Circuit case law for the proposition that new evidence may shed considerable light on the seriousness of a claimant’s condition.  See, e.g., Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004); Lisa v. Sec’y of Dep’t of Health & Human Servs. of U.S., 940 F.2d 40, 44 (2d Cir. 1991). And it found that the timing of the treating physician’s evaluation – a mere eight days after the decision – made it unlikely the doctor was assessing new symptoms that had developed after the decision. It concluded the claimant had good cause for not submitting the evidence sooner; the evidence was new, and material; and it gave rise to the probability it would change the outcome.


In Anderson v. Commissioner of Social Security, 2019 WL 2295404 (W.D.N.Y. May 30, 2019), U.S. District Judge Frank Geraci found the ALJ erred in failing to incorporate the claimant’s limitation in maintaining a schedule into his residual functional capacity (RFC). Judge Geraci criticized the ALJ for assigning “some weight” to the various medical opinions in the record, but omitting any limitations offered by the providers regarding the claimant’s ability to maintain a regular schedule. The ALJ had used portions of the various opinions to find limitations on the claimant’s ability to deal with stress and interact appropriately with others. But he rejected the scheduling limitations offered in at least two of the opinions. The court observed that when an ALJ uses a


portion of a given opinion to support a finding, while rejecting another, the ALJ must have a sound reason for the discrepancy. The ALJ failed to offer a rational for how he reconciled the conflicting opinions despite allegedly assigning them all some weight, which Judge Geraci found  “frustrates this Court’s ability to undertake meaningful review of the ALJ’s decision.”


The court also criticized the ALJ for confusingly citing evidence that appeared to support the claim, while failing to reconcile any alleged inconsistencies in the opinions. This failure was particularly harmful because the vocational expert who testified at the hearing established the scheduling limitations (i.e., off task 10% of the day or absent more than one day per month) would render the claimant unemployable. Had the ALJ credited the portions of the opinions indicating the claimant could not maintain a regular schedule, he may have found her disabled. Since he failed to do so, or explain why, remand was required.