Wong v. Astrue

Filing 27

ORDER granting in part and denying in part 21 Motion to Reverse the Decision of the Commissioner, denying 24 Motion to Affirm the Decision of the Commissioner and adopting 25 Recommended Ruling. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on March 7, 2013. (Butler, Ayanna)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARY WONG,
Plaintiff,

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v.
MICHAEL J. ASTRUE, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant.

CIVIL ACTION NO.
3:10-cv-1645 (VLB)
March 7, 2013

RULING ON MOTION TO REVERSE THE DECISION OF THE COMMISSIONER [Doc.
#21] AND ON THE COMMISSIONER’S MOTION TO AFFIRM [Doc. #24] AND
ADOPTING THE RECOMMENDED RULING [Doc. #25]
Before the Court is a recommended ruling issued by the Magistrate Judge
Thomas P. Smith (Judge Smith) on December 4, 2012. [Doc. 25]. Judge Smith
recommends that this Court remand this matter because the administrative
record is incomplete because the transcript of a hearing conducted by the
Administrative Law Judge (ALJ) on August 23, 2007. On December 18, 2012, the
Commissioner filed an objection to the recommended ruling. [Doc. 26]. The
Petitioner has not responded to the Commissioner’s opposition. For the reasons
stated below, the Court ADOPTS the recommendation and REMANDS the case to
the Commissioner for proceedings consistent with Judge Smith’s
recommendation.
The Commissioner objects to the recommendation to remand this case,
arguing that the plaintiff does not establish how she was prejudiced by the
omission of the transcript. In her motion to reverse the ruling of the
Commissioner, the Plaintiff argued that by failing to include the transcript of the

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August 23, 2007 hearing, the Commissioner violated his duty to develop the
record [Doc. 21-1, at 14].
The Commissioner argues that to remand on this basis, the Plaintiff must
demonstrate actual prejudice, citing Lena v. Astrue, No 3:10-cv-893 (SRU), 2012
WL 171305, at *9 (D.Conn. Jan 20, 2012), citing Mcleod v. Astrue, 640 F.3d 881,
888 (9th Cir. 2011) (interpreting Shinseki v. Sanders, 556 U.S. 396 (2009), to
require the party alleging error to demonstrate prejudice); see also Pratts v.
Chater, 94 F.3d 34, 37-38 (2d Cir. 1996) (explaining that when an unsuccessful
claimant files a civil action on the ground of inadequate development of the
record, the issue is whether the missing evidence is significant). The
Commissioner argues that Judge Smith’s decision does not cite to a level of
actual prejudice that this Court should find sufficient to warrant remand. The
Commissioner further challenges Judge Smith’s reasoning based on the fact that
he only references one small piece of testimony from the August 23, 2007 hearing
to conclude that it is impossible to determine if substantial evidence supports the
ALJ’s credibility finding as a whole [Doc. 25, at 5-6]. Noting that Judge Smith’s
point is well taken, the Commissioner respectfully disagrees with his inference,
citing the fact that the ALJ has provided multiple reasons for her credibility
finding, none of which are grounded in anything offered on August 23, 2007 (Tr.
16-18). Thus, she argues, even if the Court accepts that the missing transcript
makes it impossible to review some of the ALJ’s credibility finding – this should
still not be enough to disturb the ALJ’s final decision and require remand for a
new hearing and new decision. In support of this proposition, the Commissioner

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cites Jones v. Astrue, No 3:10-cv-476 (CFD), 2011 WL 322821, at *8 (D.Conn. Jan
28, 2011) (nothing that an ALJ’s credibility finding should stand even if he makes
some errors in that analysis, so long as the errors do not significantly detract
from the ALJ’s overall credibility analysis).
In the objection, the Commissioner does not dismiss Judge Smith’s
underlying concern. Rather, the Commissioner simply disagrees that the missing
transcript is as relevant as Judge Smith does. Indeed, the ALJ conducted a full
administrative hearing on September 13, 2007 (Tr. 21-70), which clearly served as
the basis for the decision (Tr. 8-20). In sum, the impact of the missing transcript
in this case truly is minimal.
This Court finds the Commissioner’s arguments unpersuasive. It
presumes facts not before this Court and asks this Court to trust that the
undisclosed transcript would not inform the Court. That is simply not a decision
which the Commissioner is allowed to make. The Commissioner is required to
file the record with the Court and the Court is required to review the record. 42
U.S.C. §405(g). In fact, while the Commissioner cites, acknowledging the
applicability of, Shinsek v. Sanders, supra wherein the Supreme Court reiterated
its previous caution:
We have previously warned against courts' determining whether an
error is harmless through the use of mandatory presumptions and
rigid rules rather than case-specific application of judgment, based
upon examination of the record.
Shinseki at 307 (citing Kotteakos v. United States, 328 U.S. 750, 760 (1946)). The
Court cannot determine whether the error, in this case, the failure to file the entire
administrative record, significantly detracts from the ALJ’s overall decision,

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including its credibility analysis. The Court cannot specifically apply its
judgment, based upon examination of the record which has been withheld.
The argument that Judge Smith’s reference to the missing transcript begs
the question and simply illustrates the fact that the Commissioner acknowledges
that there is some relevant evidence contained the withheld record. This
supports the need for rather than the superflousness of the withheld record.
Neither Judge Smith nor this Court could explicate the extent of relevant
evidence which may exist in a transcript which the Commissioner inexplicably
failed to file with this Court as required.
The Court is aware that the Commissioner’s caseload has increased
dramatically as have the Courts’; however, our mutual demands do not obviate
the need to create and provide a complete record for the Court’s consideration in
discharging its duty.
The Court ADOPTS the recommended ruling and REMANDS this case for
proceedings as recommended.
IT IS SO ORDERED.
__________/s/_____________
Vanessa L. Bryant
United States District Judge

Dated at Hartford Connecticut: March 7, 2013.

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