PAGAN v. COMMISSIONER OF SOCIAL SECURITY
Filing
15
OPINION. Signed by Judge Kevin McNulty on 1/18/2018. (JB, )
UNITED SPATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SOLMA I. PAGAN,
Plaintiff,
Civ. No. 17-769-KM
V.
OPINION
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
KEVIN MCNULTY. U.S.D.J.:
Ms. Solma Pagan brings this action pursuant to 42 U.S.C.
§
405(g),
1383(c)(3) to review a final decision of the Commissioner of Social Security
(“Commissioner”) denying her claims to Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C.
Supplemental Security Income (“551”), 42 U.S.C.
§
§
401—34, and
1381. For the reasons set
forth below, the decision of the Administrative Law Judge (“Al_i”) is
REMANDED.
I.
BACKGROUND
Ms. Pagan seeks to reverse a finding that she did not meet the Social
Security Act’s definition of disability from October 26, 2012 to September 25,
2015. (1?. 55; P1. Br. 1)) Ms. Pagan applied for DIB and 551 on March 11, 2013.
(1?. 47). In both applications, she alleged disability beginning October 26,
Citations to the record are abbreviated as follows:
= Administrative Record (ECF no. 7)
“P1. Br.” = Memorandum of Law on Behalf of the Plaintiff (ECF no. 12)
“DeL Br.” = Defendant’s Brief Pursuant to Local Civil Rule 9.1 (ECF no. 13)
“P1. Reply” = Reply Brief on Behalf of the Plaintiff (ECF no. 14)
1
2012.2 (R. 47). These claims were denied initially on July 30, 2013, and upon
reconsideration on October 30, 2013. (R. 47, 192-205). On November 22, 2013,
Ms. Pagan filed a written request for a hearing. (R. 47, 206-08). On April 29,
2015, Ms. Pagan appeared and testified at a hearing before AW Richard West.
(R. 47, 72-88). Ms. Pagan was represented at the hearing by An Nat. (R. 72-88).
The AW then submitted written interrogatories to Vocational Expert
(“yE”) Rocco J. Meola. (R. 38 1-88). The AW forwarded the VE’s responses to
Ms. Pagan’s then-attorney. (R. 390-99). Ms. Pagan requested a supplemental
hearing about those interrogatories. (R. 401). A notice was issued for a
supplemental hearing on September 4, 2015 at 3:00pm. (R. 253-55). According
to Ms. Pagan, she received a phone call on September 3, 2015 from her
representative, stating that the hearing might be rescheduled for 11:30am; she
would receive a telephone call if the time changed. (R. 39). At 11:15am on
September 4, 2015—La, the day of the hearing—Ms. Pagan allegedly received a
phone call from her attorney, who asked if she was going to attend the hearing
at 11:30am. (R. 39). By that time, Ms. Pagan was unable to attend the hearing
because it would take her at least thirty minutes to drive to the hearing office.
(R. 39). Ms. Pagan’s attorney then allegedly told her that her appearance was
not necessary. (R. 39). The supplemental hearing was held on September 4,
2015 at 10:38am, without Ms. Pagan. (R. 47, 39-40, 74-87). VE Meola, Ms.
Pagan’s attorney Timothy Lodge, and AW Richard West attended. (R. 47).
On September 25, 2015, the AW issued a decision which found her “not
disabled” for purposes of the Social Security Act. (1?. 47-55). Ms. Pagan sought
review from the Appeals Council. (R. 1-4). At this time her attorneys terminated
their relationship with her. (R. 37-38). Ms. Pagan then contracted with different
attorneys. (R. 34; P1. Br. 3-4). Additional evidence was submitted to the Appeals
Council, (R. 1090-1154), which was not before the AW. (P1. Br. 4). The Appeals
Council found that there were no grounds for further review. (R. 1-4). Ms.
Ms. Pagan reports that she was previously denied disability benefits on October
25, 2012. (P1. Br. 17). This is why she alleges disability starting on October 26, 2012.
2
2
Pagan then appealed to this Court, challenging the ALPs determination that
she was not disabled from October 26, 2012 to September 25, 2015. (P1. Br. 14).
II.
DISCUSSION
To qualify for DIB or SSI, a claimant must meet income and resource
limitations and show that she is unable to engage in substantial gainful activity
by reason of any medically determinable physical or mental impairment that
can be expected to result in death or that has lasted (or can be expected to last)
for a continuous period of not less than twelve months. 42 U.S.C.
§
423(d)(l)(A), 1382, 1382c(a)(3)(A),(B); 20 C.F.R.
§
416.905(a); see lug v.
Comm’r Soc. Sec., 570 F. App’x 262, 264 (3d Cir. 2014); Diaz v. Comm’r of Soc.
Sec., 577 F.3d 500, 503 (3d Cir. 2009).
A. The Five-Step Process and This Court’s Standard of Review
Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R.
§
404.1520, 4 16.920.
This Court’s review necessarily incorporates a determination of whether the
A12 properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:
Step One: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CPA?.
§
404.1520(b), 416.920(b). If not, move to step two.
Step Two: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id.
§
404.1520(c), 416.920(c). If the
claimant has a severe impairment, move to step three.
Step Three: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20 C.P,R. Pt.
404, subpt. P, app. 1, Pt. A. (Those Part A criteria are purposely set at a high
level to identify clear cases of disability without further analysis.) If so, the
3
claimant is automatically eligible to receive benefits; if not, move to step four.
Id.
§
404.1520(d), 416.920(d).
Step Four: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform past
relevant work. Id.
§
404. 1520(e)—(fl, 416.920(e)—(fl. If not, move to step five.
Step Five: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering her age, education, work
experience, and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 C.F.R.
§
404.1520(g), 416.920(g); see
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits
will be denied; if not, they will be awarded.
As to all legal issues, this Court conducts a plenary review. See
Schaudeck
i.’.
Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the ALl’s findings, as long as they are
supported by substantial evidence. Jones u. Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.
§
405(g)). Where facts are disputed, this Court will
“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes u. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
omitted).
[I]n evaluating whether substantial evidence supports the ALl’s
findings
leniency should be shown in establishing the claimant’s
the Secretary’s responsibility to rebut it should
disability, and
be strictly construed. Due regard for the beneficent purposes of the
legislation requires that a more tolerant standard be used in this
administrative proceeding than is applicable in a typical suit in a
court of record where the adversary system prevails.
...
...
4
Reefer v. Barnhad, 326 F.Sd 376, 379 (3d Cir. 2003) (internal quotation marks
and citations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.
§
405(g)); Zirnsak, 777 F.3d at 610-11 (“[W]e are
mindful that we must not substitute our own judgment for that of the fact
finder.”).
This Court may, under 42 U.S.C.
§
405(g), affirm, modify, or reverse the
Commissioner’s decision, or it may remand the matter to the Commissioner for
a rehearing. Podedworny
i’.
Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bodes v.
Comm’r of Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007).
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five-step inquiry. See Podedwomy, 745 F.2d at 22 1-22. Remand is also proper
if the AU’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradictory findings. See Burnett v. Comm’rof Soc.
Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the AJ2’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adorno
i.’.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
B. The AU’s Decision
AU Richard West followed the five-step process in determining that Ms.
Pagan was not disabled from October 26, 2012 to September 25, 2015. The
AU’s findings may be summarized as follows:
Step One: At step one, the AU found that Ms. Pagan had not engaged in
substantial gainful activity since October 26, 2012, the alleged start date of her
disability. (R. 49).
Step Two: At step two, the AU determined that Ms. Pagan had the
following severe impairments: depression, degenerative disc disease, diabetes
mellitus, and hypertension. (1?. 49).
Step Three: At step three, the AU found that Ms. Pagan did not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R, Pt. 404, subpt. P., app. 1.
(R. 50-52).
Step Four: At step four, “[a]fter careful consideration of the entire
record,” the AU found that Ms. Pagan had the following RFC:
[T]he claimant has the residual functional capacity to perform less
than a full range of light work as defined in 20 CFR 404.1567(b)
and 4 16.967(b). The claimant can lift and/or carry 20 pounds
occasionally, 10 pounds frequently, walk and/or stand 6 hours in
an 8-hour workday and sit 6 hours in an 8-hour workday. She
cannot climb ladders, ropes, or scaffolds, or crawl; she cannot
work around unprotected heights or machinery with moving parts;
she is limited to work that can be learned in one month or less and
that involves simple instructions; she is limited to work where the
routine does not change throughout the day; she can have
occasional interaction with supervisors and co-workers, and only
incidental interaction with the general public; and she can work in
proximity of coworkers but not together with them.
(R. 52). The AU also determined that Ms. Pagan was unable to perform her
past relevant work as a babysitter (Dictionary of Occupational Titles (“DOT’)#
301.677-010). (R. 54). The demands of that job exceed her RFC. (R. 54).
Step Five: At step five, the AU considered Ms. Pagan’s age, education,
work experience, and RFC, as well as the Medical-Vocational Guidelines. (R.
54). The Medical-Vocational Guidelines are tables that set forth presumptions
of whether significant numbers of jobs exist in the national economy for a
claimant. 20 C.F.R. Pt. 404, subpt. P, app. 2. These presumptions vary based
on a claimant’s age, education, work experience, and work capability. Id. The
AU determined that Ms. Pagan had been able to perform jobs existing in
significant numbers in the national economy since October 26, 2012. (1?. 5455). Relying on the opinion of the VE, the AU identified several representative
jobs that Ms. Pagan could perform despite her limitations: scale operator
(DOT# 555.687-010), microfilm mounter (DOT# 208.685-022), and sealing
6
machine operator (DOT# 690.685-154). (R. 54-55). According to the yE, there
are over 170,000 such jobs nationally. (54-55).
Therefore, the ALT ultimately determined that Ms. Pagan was “not
disabled” for purposes of the Social Security Act. (R. 55).
C. Analysis of Ms. Pagan’s Appeal
Ms. Pagan challenges ALT West’s determination that she was not
disabled from October 26, 2012 to September 25, 2015. First, Ms. Pagan
claims that the matter should be remanded to consider new and material
evidence. (P1. Br. 13-16). Second, she argues that the ALT should have
considered the evidence evaluated by a different ALT in a previous disability
application that resulted in a denial on October 25, 2012. (P1. Br. 17).
Third, she alleges that the AU did not afford her appropriate notice of
her September 4, 2015 supplemental hearing. She claims that this violates her
due process rights to notice and an opportunity to be heard. See Matthews u.
Eldridge, 424 U.S. 319, 348-49 (1976). Fourth, Ms. Pagan asserts that the ALT
committed errors at step four: She alleges that the ALT did not adequately
consider Ms. Pagan’s Function Report or the Third Party Function Report
completed by her daughter; properly account for her psychiatric challenges
(particularly in light of Dr. Paul Fulford and Dr. Steven Yalkowsky’s
assessments, which she alleges show a “significant deterioration” in her mental
status); or appropriately evaluate her ability to stand throughout the day. (P1.
Br. 17-20). Ms. Pagan argues that the ALT should have limited her to
“sedentary” levels of work.
1.
New and Material Evidence
Ms. Pagan argues that the matter should be remanded to consider new
and material evidence. She refers to treatment records, (R. 1090-1155), that
she submitted to the Appeals Council, but were not before the ALT and were
not considered in his determination. (P1. Br. 13).
7
Under 42 U.S.C.
§
405(g), the court can remand a case to the
commissioner to consider new evidence under limited circumstances:
[The Court] may at any time order additional evidence to be taken
before the Commissioner of Social Security, but only upon 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.
Id. (sixth full sentence). See Matthews v. Apfel, 239 F.3d 589, 592-93 (3d Cir.
2001); Szubak z,’. Sec’y of Health & Human Sen’s., 745 F.2d 831, 833 (3d Cir.
1984). To justify a so-called “sentence six” remand, the evidence (1) must be
“new,” (ii) “material” (i.e., there must be a reasonable possibility that the
evidence would have changed the outcome of the Commissioner’s decision,
Szubak, 745 F.2d at 833); and (ill) there must be “good cause” for the failure to
incorporate the evidence in the prior hearing. Matthews, 239 F.3d at 592-93.
The evidence proffered by Ms. Pagan meets the criteria for a sentence six
remand:
(i) First, the evidence is “new.” These records were filed to the Social
Security Appeals Council after the AW’s decision and the AW did not review or
consider them. See Matthews, 239 F.3d at 593.
(H) Second, the evidence is material because there is a reasonable
possibility that its introduction would have changed the AM’s decision. The
new evidence shows treatment from several months of physical therapy and
includes notes from treating physicians. Under the “treating physician
doctrine,” courts “must give greater weight to the findings of a treating
physician than to the findings of a physician who has examined the claimant
only once or not at all.” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993);
20 C.F.R.
§
404. 1527(c)(2). A treating physician’s opinion is therefore accorded
“controlling weight” if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the claimant’s] case record.” Fargnoli
i,’.
Massanari, 247
F.3d 34, 43 (3d Cir. 2001); see Morales a Apfel, 225 F.3d 310, 317 (3d Cir.
8
2000); (“A cardinal principle guiding disability eligibility determinations is that
the AM accord treating physicians’ reports great weight, especially when their
opinions reflect expert judgment based on a continuing observation of the
patient’s condition over a prolonged period of time.” (internal quotations
omitted)); see also 20 C.P.R.
§
404.1527(c)(2). Thus, an AM may reject a
treating physician’s opinion “only on the basis of contradictory medical
evidence.” Morales, 225 F.3d at 318 (internal quotation marks omitted).
The additional medical evidence from Ms. Pagan may have altered the
AM’s decision, especially since AWs must counter the opinion of a treating
physician with contradictory medical evidence. Dr. Felix Almentero saw Ms.
Pagan on several occasions. He reported many times that “Daily activity
worsen[sJ her condition.” (1?. 1110, 1114, 1118, 1122, 1128, 1136, 1140,
1150). He describes her work status as “Unable to do any work.” (R. 1111,
1115, 1119, 1123, 1127, 1141, 1151). HealsoopinedthatMs. Paganislimited
to lifting up to 10 pounds occasionally. (R. 1128, 1141, 1151). This directly
conflicts with the AM’s RFC determination, which provides that she “can lift
and/or carry 20 pounds occasionally [and] 10 pounds frequently.” (1?. 52).
Other doctors, such as Dr. Shailendra Hajela, agreed that “Daily activity
worsen[s] her condition,” she is “[a]ble to walk short distances,” and is “[a]ble to
lift up to 10 pounds occasionally.” (N. 1093-94). Several medical reports,
including ones from Dr. Almentero, report that she experiences significant back
pain. (N. 1110, 1114, 1118, 1122, 1128, 1136).
1 am not dictating or suggesting the outcome of the claim on remand. I
am stating that there is a reasonable possibility that evidence from treating
physicians, based on a continuing observation of Ms. Pagan’s condition over a
period of time, might have changed the outcome. Thus, the new evidence is
“material” for the purpose of 45 U.S.C.
§
405(g); see Szubak, 745 F.2d at 833.
9
(lii) Third, Ms. Pagan has stated “good cause” for not submitting this
evidence with her original application.3 A finding of “good cause” requires
“some justification for the failure to acquire and present such evidence to the
Secretary.” Szubak, 745 F.2d at 834 (citing Brown v. Schweiker, 557 F. Supp.
190, 192 (M.D. Fla. 1983)). Ms. Pagan has provided such a justification. The
additional evidence includes treatment notes from after the date of the ALl
hearing (April 29, 2015) but before the date of the supplemental hearing
(September 4, 2015). Ms. Pagan states that she would have been able to
present these records to the ALl had she been present at the supplemental
hearing. (P1. Br. 16). At the hearing, the ALl asked the attorney if there was
anything else he would like to contribute to the record. (R. 68). The attorney
noted Ms. Pagan’s low GAF score from Dr. Yalkowsky in July 2013, but did not
submit any other evidence. (R. 69-70).
There are several facts that suggest Ms. Pagan had good cause for not
presenting this information to the ALl. According to Ms. Pagan, she did not get
the opportunity to present this evidence at the supplemental hearing because
the ALl changed the time of the hearing without adequate notice. These facts
were discussed in Section I, supra. It is unclear whether the alleged lack of
notice was the fault of the ALl or Ms. Pagan’s attorney, but it is clear that the
attorney did not bring this important, additional evidence to the ALT’s
attention. (R. 68-69).
Ms. Pagan can reasonably state that she was not able to submit new
evidence at the supplemental hearing because she was not in attendance—and
that her absence was not purposeful or culpable. It does not appear that Ms.
Pagan is acting in bad faith. As in Szubak, there is no evidence that Ms. Pagan
was trying to conceal this new evidence. Id.; see also Hamm v. Astnze, No. 8-
The SSA does not argue the issue of “good cause.” (Def. Br. 10-12); see (P1.
Reply 2). Still, the claimant has the burden to demonstrate good cause for not having
incorporated the new evidence into the administrative record. Szubak, 745 F.2d at
833; Brown v. Schweiker, 557 F. Supp. 190, 192 (M.D. Fla. 1983).
3
10
5010, 2009 WL 2222799, at *8 (D.N.J. July 22, 2009). Ms. Pagan is now
represented by new counsel, who entered the case after the AU’s decision. See
Szubak, 745 F.2d at 834. This counsel has proffered the new medical evidence,
which post-dated the original AI3 hearing; it does not appear that Ms. Pagan
or her prior counsel withheld this evidence from the record on purpose.
True, the “good cause” requirement is designed to “encourage disability
claimants to present to the AIJ all relevant evidence concerning the claimant’s
impairments.” Matthews, 239 F.3d at 595. Othenvise, claimants “might be
tempted to withhold medical reports, or refrain from introducing all relevant
evidence, with the idea of obtaining another bite of the apple if the Secretary
decides that the claimant is not disabled.” Szuhak, 745 F.2d at 834 (internal
quotation marks omitted). Given the particular facts of this case, however, a
remand here “presents little danger of encouraging claimants to seek afteracquired evidence, and then to use such evidence as an unsanctioned
‘backdoor’ means of appeal.” Szubak, 745 F.2d at 834.
The evidence is new, it is material, and there is a reasonable explanation
for Pagan’s failure to introduce it earlier. I will therefore remand this case for
further consideration.
2.
Other Arguments for Remand
The new material evidence warrants a remand. There is thus no need to
consider Ms. Pagan’s other arguments, which include issues of due process
and whether the AU’s determinations were supposed by substantial evidence.
III.
CONCLUSION
For the foregoing reasons, I will remand to the agency for further
evaluation of Ms. Pagan’s case. I express no opinion on what the decision
should be on remand. An appropriate order accompanies this opinion.
Dated: January 18, 2018
KEVIN MCNULTY
United States District
11
udge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?