Martinez v. Astrue
Filing
14
ORDER Case is reversed and remanded to the Commissioner for further fact finding pursuant to sentence four in 42 U.S.C. § 405(g), by Chief Judge Wiley Y. Daniel on 3/28/12. (gmssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-00654-WYD
CAROLINE M. MARTINEZ,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
ORDER
THIS MATTER is before the Court on review of the Commissioner’s decision not
to waive recovery of an overpayment of disability insurance benefits. For the reasons
stated below, this case is reversed and remanded for further fact finding.
I.
INTRODUCTION AND BACKGROUND
Plaintiff filed this action in March of 2011 seeking judicial review of a final
decision of the Commissioner not to waive recovery of an overpayment of disability
insurance benefits [“DIB”]. By way of background, in August 1999, Plaintiff filed an
application for DIB alleging that she had been unable to work since March 31, 1998.
(Transcript [“Tr.”] 17.) On November 24, 2000, an administrative law judge [“ALJ”]
found that Plaintiff was disabled as of her alleged onset date, March 13, 1998, due to
major depression and somatization disorder. (Id. 17-22.)
In April 2003, Plaintiff went to work for Phillipou Enterprises, Inc. [“Phillipou”] and
worked there until June, 2005. (Tr. 104, 158.) After that job ended, Plaintiff worked for
Personal Touch Maid Services, LLC from July to November, 2005. (Id. 138). She then
worked for Sunrise Senior Living Services, Inc. until March, 2007. (Id. 86-89, 102-103,
138.)
The file contains an inquiry form of August 12, 2005, from the Social Security
Administration [“SSA”]. (Tr. 154-55.) Plaintiff answered on August 20, 2005, reporting
her work at Phillipou. (Id. 156-63.) She claimed she returned an earlier inquiry in April,
2005. (Id. 156.) On May 1, 2006, Plaintiff was requested to send in her pay stubs for
2005-2006 and was furnished a pamphlet explaining some of the rules. (Id. 145.) SSA
also requested monthly gross wage figures from Phillipou. (Id. 143-144.)
On June 9, 2006, the Commissioner notified Plaintiff through a Notice of
Proposed Decision that her benefits would cease. (Tr. 138-141.) Plaintiff was informed
that her work activity, which began in January 2004, was considered substantial gainful
activity [“SGA”] and that she was not entitled to benefit payments beginning April 2004.
(Id.) The SSA explained to Plaintiff that her nine-month trial work period ended in
December 2003, and that her disability ended because of substantial work as of
January 2004. (Id. 139.) Nevertheless, Plaintiff continued to receive benefit payments
through June 2006. As a result, an overpayment was assessed in the amount of
$15,537.70. (Id. 23).
On July 19, 2006, Plaintiff requested a waiver of overpayment recovery. (Tr. 2532.) She asserted that she was not at fault in causing the overpayment because she
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did not know she was supposed to report her work activity. (Id. 26.) Because Plaintiff
continued to receive benefits until April 2007 while her appeal of the overpayment
determination was pending, an overpayment in the amount of $17,489.20 was ultimately
assessed. (Id. 64.) A Notice of Disability Cessation dated April 10, 2007, informed
Plaintiff that she was no longer entitled to DIB beginning November 2006 because of
substantial work. (Id. 64-67.) In May 2007, Plaintiff told an SSA employee that she
thought the agency was keeping the portion of benefit payments that exceeded the level
of SGA. (Id. 68.)
Plaintiff’s request for waiver of overpayment was denied initially and after an
opportunity for a conference with an SSA representative. (Tr. 25-32, 54-55.) Plaintiff
then requested a hearing before an ALJ, which was held on June 8, 2009. (Id. 60-61,
204-16.) At the hearing, Plaintiff testified that the notices SSA sent her regarding the
overpayment were confusing, that she thought she was in compliance with the
requirements for reporting work activity, and that SSA kept changing the rules. (Id. 20809.) She said what SSA told her conflicted so much that she ended up in a mess. (Id.)
Plaintiff also testified that she had been employed as a home health care nursing
assistant until February 2007, when she was terminated for being rude to an elderly
person. (Id. 209-10.) Further, she testified that she was not receiving treatment for a
psychological disorder at that time. (Id. 211.)
Daisy Martinez, Plaintiff’s daughter, also testified at the hearing. She testified
that Plaintiff had problems with her memory, that she had always helped Plaintiff with
paperwork, that she knew Plaintiff was supposed to report her earnings to the agency,
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and that she reported all of Plaintiff’s earnings to the agency during the time period in
question. (Tr. 212-15.) She also testified that she did not know how it had come to
pass that Plaintiff was in non-compliance because it was inconsistent with what SSA
was telling them. (Id. 213.) Specifically, she stated:
But I have known that my mom, because of me, has always been in
compliance, because I have recorded all her work, all her check stubs, and
every time she’s done it, they’ve [SSA] said, “Okay, well this month, you
made a little bit too much, so you have to cut your hours back.” So she
would tell her work, okay, now I can only work 12 hours this week. And so
then again they say, “Okay, well now you’re not working enough hours.” So
now she has to go back and say, “Okay, well, now can I say overtime?” And
it’s just – it became a big mess. And I don’t understand how it would even
come to this, you know, afer all these years. . . . I don’t - - we just don’t – it’s
confusing, I guess. Because one day the Social Security is saying, “You’re
working too less.” Now, Social Security’s saying, “You’re working too much.”
And it’s just - - it never made any sense. . . .
(Id.) Daisy Martinez also said that she and her mom had several meetings at the Social
Security Office over this, and that some people at the SSA didn’t even want to talk to
them about the situation. (Id. 214.)
In a June 17, 2009 decision, the ALJ concluded that Plaintiff was “not without
fault” in accepting the overpayment in the amount of $17,438.20, and, therefore, that
recovery of the overpayment could not be waived. (Tr. 8-12). The ALJ made the
following findings: (1) Plaintiff’s trial work period began in April 2003, and ended nine
months late, in December, 2003 (20 C.F.R. §404.1592); (2) Plaintiff’s reentitlement
period began in January, 2004, the first month after the end of the trial work period (20
C.F.R. 404.1592(a)); (3) Plaintiff’s benefits cessation month occurred in February, 2007
(20 C.F.R. §404.1592(a)); (4) the reentitlement period ended February 2007 and the
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benefit termination month occurred in April 2007 (20 C.F.R. §404.1592(a)); (5) the
overpayment of $17,438.20 is correct; and (6) Plaintiff was not without fault in causing
the overpayment (20 C.F.R. 404.510). (Id. 11.)
The Appeals Council denied Plaintiff’s request for review of the ALJ's decision
(Tr. 3-5), making the ALJ’s decision the final decision for purposes of judicial review.
See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court has jurisdiction
to review the decision under 42 U.S.C. § 405(g).
Plaintiff argues that the ALJ erred in finding she was not without fault in accepting
the overpayment of benefits because he failed to consider that her mental disability
rendered her incapable of understanding the requirement for reporting of earnings.
(Pl.'s Opening Brief at 2-4.) Plaintiff also argues that her work at Phillipou Enterprises
“should not have counted against her” because she worked fewer hours and had fewer
or easier duties than other employees (id. at 2), and that the ALJ failed to consider
whether she accepted the overpayment because she relied upon “erroneous
information from a local agent.” (Id. at 5.)
II.
ANALYSIS
A.
Standard of Review
The court reviews the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal standards
were applied. Angel v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). Substantial
evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quoting
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Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)). It “requires more than a
scintilla of evidence but less than a preponderance of the evidence.” Gossett v. Bowen,
862 F.2d 802, 804 (10th Cir. 1988).
“Evidence is not substantial if it is overwhelmed by other evidence in the record
or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). The court will “‘meticulously examine the record as a whole, including anything
that may undercut or detract from the ALJ’s findings in order to determine if the
substantiality test has been met.’” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(quoting Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)).
Finally, the court will “‘consider whether the ALJ followed the specific rules of law
that must be followed.’” Lax v. Astrue, 489 F.3d 1080, 1048 (10th Cir. 2007) (quoting
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). It will not, however,
“‘reweigh the evidence or substitute [its] judgment for the Commissioner’s.’” Id.
B.
Whether the ALJ’s Decision is Supported by Substantial Evidence and
Free of Legal Error
With regard to recovery of overpayments, section 204(a)(1) of the Social Security
Act [“the Act”] provides that “[w]henever the Commissioner of Social Security finds that
more or less than the correct amount of payment has been made to any person under this
subchapter, proper adjustment or recovery shall be made under regulations prescribed by
the Commissioner of Social Security . . . .” 42 U.S.C. § 404(a)(1). Section 204(a)(1)(A) of
the Act directs the Commissioner to “decrease any payment under this subchapter to which
such overpaid person is entitled, or [to] require such overpaid person or his estate to refund
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the amount in excess of the correct amount . . . .” Id. Section 204(b) of the Act limits the
effect of this section by providing that “there shall be no. . . recovery by the United States
from any person who is without fault if such recovery would defeat the purpose of this title
or would be against equity and good conscience.” 42 U.S.C. § 404(b) (emphasis added).
The regulations implementing the sections of the Act concerning overpayments
provide that a determination of whether an individual is “without fault” is a factual
determination. See 20 C.F.R. § 404.507. “Whether an individual is without fault depends
on all the pertinent circumstances, including the individual’s age and intelligence, and any
physical, mental, educational, or linguistic limitations (including any lack of facility with the
English language) the individual may have.” Id. “What constitutes fault on the part of the
overpaid individual. . .depends on whether the facts show that the incorrect payment to the
individual. . . resulted from: (a) An incorrect statement made by the individual which [she]
knew or should have known to be incorrect; or (b) Failure to furnish information which [she]
knew or should have known to be material; or (c) With respect to the overpaid individual
only, acceptance of a payment which [she] either knew or could have been expected to
know was incorrect. Id.
The Commissioner's “fault” determination “is a factual determination that must be
upheld if it is supported by substantial evidence in the record as a whole.” Howard v. Sec’y
of Health & Human Servs., 741 F.2d 4, 8 (2d Cir. 1984). Plaintiff has the burden of showing
that she was “without fault” with respect to the overpayment. See Watson v. Sullivan, 940
F.2d 168, 171 (6th Cir. 1991). Any “fault” on the part of the Commissioner in making the
overpayments does not bring an individual within the terms of the waiver statute if she
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herself was not free from “fault”. See 20 C.F.R. § 404.507. “‘No showing of bad faith is
required; rather, an honest mistake may be sufficient to constitute fault.’” Litvin v. Astrue,
No. 09 Civ. 8649(JSR)(HBP), 2011 WL 4834138, at *5 (S.D.N.Y. Oct. 12, 2011) (quoting
Center v. Schweiker, 704 F.2d 678, 680 (2d Cir. 1983)).
I find for the reasons set forth below that the ALJ’s decision is not supported by
substantial evidence and that correct legal standards were not applied. Accordingly, I find
that this case must be reversed and remanded for further fact finding.
I first find that the ALJ’s decision is not supported by substantial evidence because
the ALJ failed to properly consider Plaintiff’s mental illness in determining whether Plaintiff
was without fault. Plaintiff’s mental illness and impairments related to same are extremely
important to the resolution of the issue of whether Plaintiff was without fault. Plaintiff was
found to be disabled by the SSA due to major depression and a somatiform disorder. The
ALJ who found Plaintiff to be disabled noted that she had marked difficulties in maintaining
concentration, persistence or pace as a result of her impairments. (Tr. 18-19.) He further
found that Plaintiff’s impairments “prevent her from understanding and remembering even
simple instructions on a sustained basis.” (Id. 20.) The ALJ who made the current decision
completely ignored these important findings in making the fault determination.
Given the prior findings of psychological disability, which were corroborated by the
testimony of Plaintiff’s daughter about Plaintiff’s memory problems, there are strong
indications from the record that Plaintiff’s mental disability may have substantially interfered
with her ability to comply with or understand the rules. (Tr. 256, 68, 105.) The ALJ did not
properly consider this evidence, as required by the regulation at issue. He should have
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carefully considered whether Plaintiff’s mental impairment impacted her ability to
understand and comply with the reporting requirements of the Act. He also should have
developed the record on this issue, particularly since Plaintiff was not represented by
counsel at the hearing. See Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.1987) (“The
[ALJ's] duty of inquiry takes on special urgency when the claimant has little education and
is unrepresented by counsel.”); Valente v. Sec’y of Health and Human Servs., 733 F.2d
1037, 1043 (2d Cir. 1984). This requires a remand of the case for further fact finding.
Indeed, the standard for whether a claimant was “without fault” at issue here
surrounds Plaintiff’s understanding, i.e., “[what she] knew or should have known.” (Def.’s
Resp. Br. at 6). The Commissioner correctly notes that Plaintiff wrote on July 19, 2006,
that she “wasn’t aware I was supposed to report work.” (Tr. 26.) In light of this as well as
Plaintiff’s demonstrated problems in the record with memory, Plaintiff’s “impaired memory
lies at the heart of the case.” Wimbish v. Sullivan, No. 89-1293-OG, 1990 WL 180704, *6
(D.D.C. 1990). I find the Wimbish case particularly instructive in this case.
In Wimbish, the court found that “the ALJ, in making his findings, ignored probative
evidence of the plaintiff’s diminished physical and mental condition which was highly
relevant to the issue of fault.” Id., 1990 WL 180704, at *5. There, the ALJ ignored a report
of a neuropsychologist who opined that Plaintiff suffered from a chronic, serve impairment
of psychological functions, including intellectual and memory skills which most likely caused
her not to report her employment to the SSA. Id. The court found that “[t]he ALJ's
reason for rejecting [the neuropsychologist’s] report is inadequate, and the ALJ's
conclusion is otherwise unsupported by the record.” Id. It concluded on that issue:
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[The neuropsychologist’s] report was the only medical evidence in the record
truly probative of the aspects of plaintiff's disability relevant to the issue of
fault. As courts have noted, “[i]f the reasons supporting an ALJ's
determination, as presented in his written decision, are inadequate, and if
that determination is otherwise unsupported by substantial evidence, it will
be reversed by a reviewing court.” Shirley v. Bowen, 635 F.Supp. 132, 134
(D.D.C.1986) (citing Rossi v. Califano, 602 F.2d 55, 59 (3rd Cir.1979)). That
principle guides the Court's conclusion with respect to this issue. The ALJ's
reason for rejecting [the] . . . report is inadequate, and the ALJ's conclusion
is otherwise unsupported by the record.
Id.
Here, also, the ALJ’s reasons for rejecting Plaintiff’s mental impairments are
inadequate, as he failed to consider the medical evidence in the record (and/or prior
records before the SSA) that was truly probative on this issue.
I also find that the ALJ’s reasons for rejecting Plaintiff’s mental impairments as a
basis to find her without fault are not valid, as they are disconnected from the requirements
of the regulation and not supported by substantial evidence. The ALJ stated that “[t]here
are no indications written in the record that she required a representative payee in her
dealings with the Administration.” (Tr. 12.) He also found that Plaintiff “testified she was
not under any type of psychological care.” (Id.) The regulation does not require, however,
that a claimant be under a representative payee or that she be under the care of a
psychological professional in order to be “without fault.” Further, Plaintiff’s daughter’s
testimony could be construed to mean that she acted in a manner similar to a
representative payee, recording all Plaintiff’s check stubs. (Id. 213.)
The ALJ also found that Plaintiff was informed that she was required to report any
work activity to SSA when she filed her application for disability insurance benefits, and that
the record did not reflect timely reporting of earnings. (Tr. 12). However, in light of
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Plaintiff’s demonstrated mental problems with memory and concentration, the argument
that she remembered a 1999 notice that she needed to report her earnings is questionable.
The memory problems could also account for the inconsistencies between Plaintiff’s
statements, as found by the ALJ. This must be adequately taken into account on remand.
Another reason the ALJ gave to reject Plaintiff’s mental impairments as a basis to
find Plaintiff not without fault was his lay opinion that “[d]uring the hearing, the claimant had
no difficulties communicating or recalling details.” (Tr. 12.) However, Plaintiff could not
remember the details of her past employment or the amount she was paid per hour. (Id.
210.) More importantly, the ALJ’s impressions from an extremely short conversation with
the Plaintiff at the hearing cannot override the findings regarding Plaintiff’s mental
impairments, including memory problems, based on the medical evidence.
The Wimbish case also provide guidance on this issue. It distinguished between
testing based on memory problems which was “more perfunctory in nature” based on a
conversational meeting with the plaintiff versus a neuropsychologist’s report based on a
clinical interview of plaintiff and the performance of an extensive series of tests. Id., 1990
WL 180704, at *6. The court found that the neuropsychologist’s “report was specifically
geared toward determining whether plaintiff suffered from long-term memory loss and
recurring memory lapses sufficient to impair her ability to remember a reporting
requirement”, and that this “was the only medical evidence in the record truly probative of
the aspects of plaintiff’s disability relevant to the issue of fault.” Id. Similarly, here, the only
medical evidence in the record probative to Plaintiff’s mental impairments was the evidence
in the record when Plaintiff was found to be disabled. The ALJ cannot substitute his own
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lay judgment for that of the medical evidence. Langley v. Barnhart, 373 F.3d 1116, 1121
(10th Cir. 2004).
If for some reason on remand, the ALJ does not believe he has sufficient medical
evidence on this issue, he should order a consultative examination. Hawkins v. Chater,
113 F. 3d 1162, 1169 (10th Cir. 1997) ([t]he ALJ should order a consultative exam when
evidence in the record establishes the reasonable possibility of the existence of a disability
and the result of the consultative exam could reasonably be expected to be of material
assistance in resolving the issue of [disability].). Again, he cannot merely rely on his own
lay opinion.
I also find that the ALJ failed to properly consider whether Plaintiff was without fault
in accepting the overpayments in reliance upon erroneous information from employees of
the SSA. 20 C.F.R. § 404.510a states in that regard that “[w]here an individual or other
person on behalf of an individual accepts such overpayment because of reliance on
erroneous information from an official source within the Social Security Administration
.
. ., such individual, in accepting such overpayment, will be deemed to be without fault.” Id.
In this case, both Plaintiff and her daughter testified that they believed they were in
compliance based on conversations with officials within the SSA, and that SSA kept
changing the rules on them. (Tr. 208-09, 212-14.) Further, as noted earlier, there is
evidence in the record that Plaintiff had told an SSA employee that she thought the agency
was keeping the portion of benefit payments that exceeded the level of SGA. (Id. 68.)
To demonstrate that the Plaintiff relied on erroneous information, she does not have
to demonstrate that a specific named employee gave her false information, as argued by
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the Commissioner.
Instead, when the issue is raised about reliance on erroneous
information from SSA personnel (or that the claimant was misinformed), the ALJ must
consider and address 20 C.F.R. § 404.510a and determine whether the claimant’s
argument about reliance on erroneous information is entitled to credence. See Ming v.
Astrue, No., 2009 WL 2495947, at *5-6 (E.D.N.Y. Aug. 13, 2009). Thus, as addressed in
Ming and equally applicable to this case, “[t]he ALJ should have considered plaintiff’s claim
that she was misinformed and developed the record in an effort to illuminate the details of
her claim.” Id. The ALJ’s failure to consider and develop the record regarding this issue
requires that the case be remanded for further fact finding.“ Id. That is because if the
claimant “relied on erroneous information provided by SSA employees, she was not at fault
for continuing to accept overpayments.” Id. (citing Valente, 733 F.2d at 1044-45); see also
Litvin, 2011 WL 4834138, at *8-10 (finding that a remand was appropriate for further fact
finding where the ALJ and Appeals Council never addressed the plaintiff’s assertion that
he called SSA each month and relied upon their statements that he was entitled to the
payments he was receiving).
The ALJ also failed to specifically address the credibility of Plaintiff and her daughter,
particularly as to the issue of whether Plaintiff accepted the overpayment in reliance upon
erroneous information from the SSA. See 20 C.F.R. § 404.510(a). Courts have found that
credibility findings are “critical to the ‘without fault’ determination.” See, e.g., Albalos v.
Sullivan, 907 F.2d 871, 873 (9th Cir. 1990). Given the context of this case and the issues
raised by Plaintiff, credibility is a crucial factor in this case in determining whether she was
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without fault. Accordingly, the ALJ should have made explicit findings as to credibility. Id.;
see also Valente, 733 F.2d at 1045.
Based on the foregoing errors, the Commissioner’s assertion that the fifteen minute
hearing and the two-page findings and conclusion adequately addressed the issues is
without merit.
I also find instructive the case of Lieberman v. Shalala, 878 F. Supp. 678 (S.D.N.Y.
1995). There, in denying a disability insurance benefits recipient's request for waiver of
recovery of overpayment of benefits, the ALJ failed to enumerate factors from agency rules
for determining when the recipient was without fault, failed to consider whether the recipient
relied on erroneous information from official source, and failed to make an explicit finding
for the record regarding the recipient's credibility, as required to determine whether the
recipient was without fault in receipt of overpayment, and so entitled to waiver. Id. at 681.
While the ALJ cited the pertinent circumstances he was supposed to consider in his
decision, including the individual's age, intelligence, education, and physical and mental
condition, he “failed to indicate how, or even whether, he applied them to the facts of this
case.” Id. The court further stated:
At the hearing, for example, the ALJ failed to inquire about Lieberman's level
of education or investigate her relative intelligence. Moreover, Lieberman
testified that she took a multitude of medications, including synthroid for her
thyroid condition and lithium for her manic depressive behavior. Despite that
testimony, the ALJ did not explore her physical or mental condition any
further. Finally, Lieberman testified that she believed that she was entitled to
continued benefits. . . .On remand, the Secretary must consider these factors
as required by the applicable regulation.
Id.
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Similarly, the ALJ in this case did not inquire into Plaintiff’s level of education or
investigate her intelligence, and did not explore Plaintiff’s mental condition in any detail
despite the record evidence about her impaired condition other than a perfunctory question
about whether Plaintiff was receiving psychological treatment. The ALJ also failed to
address or develop in the record Plaintiff’s assertion that she relied on erroneous
information from an official source, and failed to make explicit findings regarding Plaintiff’s
and her daughter’s credibility, as discussed previously. I find this is particularly egregious
as Plaintiff “appeared without counsel, and the ALJ thus had a duty ‘to scrupulously and
conscientiously probe into, inquire of, and explore for all the relevant facts.’” Valente, 733
F.2d at 1043 (quotations and internal quotation marks omitted).
Finally, I also find that the ALJ erred in failing to consider and develop the record
regarding Plaintiff’s argument that her work at Phillipou Enterprises should not have
counted against her as SGA because she worked fewer hours and had fewer or easier
duties than other employees. Plaintiff made this assertion in the Work Activity Report sent
to the SSA in August 2005 (Tr. 160), and it was thus clearly a part of the record before the
ALJ that he was required to develop. Valente, 733 F.2d at 1043. 20 C.F.R. § 404.1573(b)
states, “If you are unable, because of your impairments, to do ordinary or simple tasks
satisfactorily without more supervision or assistance than is usually given other people
doing similar work, this may show that you are not working at the substantial gainful activity
level.” Id. It also states that if the work is done under special conditions that take into
account the employee’s impairment, the SSA may find that it shows that the claimant does
not have the ability to do substantial gainful activity. Id., § 404.1573(c). The ALJ’s failure
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to conduct any fact finding on this issue or address the issue in his decision was legal error
that must be addressed on remand.
III.
CONCLUSION
Based upon the foregoing, I find the ALJ’s decision is not supported by substantial
evidence and that the ALJ committed legal error in his decision by not examining all the
pertinent circumstances, as described above. A remand “is appropriate to consider
relevant, probative, and available evidence that was not explicitly weighed by” the
Commissioner. See Dorman v. Harris, 633 F.2d 1035, 1040 (2d Cir. 1980). It is therefore
ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding pursuant to sentence four in 42 U.S.C. § 405(g).
Dated March 28, 2012
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge
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