PERDOMO v. COMMISSIONER OF SOCIAL SECURITY
Filing
25
OPINION. Signed by Judge Kevin McNulty on 4/5/2019. (sm)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JACQUELINE PERDOMO on behalf of
X.M., a minor,
Plaintiff,
Civ. No. 17-5003
V.
OPINION
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
KEVIN MCNULTY, U.S.D.J.:
Jacqueline Perdomo brings this action on behalf of X.M., a minor,
pursuant to 45 U.S.C.
§
405(g) to review a final decision of the Commissioner of
Social Security (“Commissioner”) denying her claim for child’s Supplemental
Security Income (“SSI”) under the Social Security Act (“SSA”).
For the reasons set forth below, I remand this action to the Appeals
Council to consider new evidence.
I.
BACKGROUND’
Ms. Perdomo seeks to reverse a decision that her child, X.M., was not
disabled and not entitled to child’s SSI. Ms. Perdomo originally applied for SSI
The Administrative Record (DE 6, and hereinafter “R.”), is voluminous and
spread across eight attachments. The pages may be found in the following order.
1?. 1—66
=
[DE 8-2]
R. 67—87
=
[DE 8-3]
R. 88—170
=
[DE 8-4]
R. 170—175
=
[DE 8-5]
R. 19 1—354
=
[DE 8-6]
R. 355—360
=
[DE 8-7]
R. 361—411
=
[DE 8-8]
R. 412—470
=
[DE 8-9]
R. 471-477
=
[DE 8-101
1
on behalf of X.M. in May 2012, with a protective filing date of April 30, 2012,
when X.M. was five years old. (R. 170-75, 216). The claim was denied initially
and upon reconsideration on July 9, 2014. (R. 88-90, 94-96).
A hearing was held before an AW on February 7, 2014. (R. 43-66, 10007). Ms. Perdomo and X.M. testified. (Id.). On July 11, 2014 the ALl rendered a
decision denying benefits. (R. 16-37) On December 9, 2015, the Appeals
Council denied Ms. Perdomo’s request for review of the AU’s decision. (R. 1-4).
Ms. Perdomo then appealed to federal court, where the case was assigned to
me. (1?. 439-43; see 16-cv-644 (KM)). On July 21, 2016,1 issued a consent
order remanding the case back to the Appeals Council to vacate its prior denial
of Ms. Perdomo’s request for review, allow Ms. Perdomo’s representative review
the administrative record and submit a brief, and, finally, process the request
for review. (R. 442; see Consent Order, DE 9, 16-cv-655 (KM)). After taking
those three steps, January 9, 2017, the Appeals Council denied Ms. Perdomo’s
request for review, (R. 419-25), rendering it the final decision of the
Commissioner.
Ms. Perdomo appealed to this Court, asserting that the Commissioner
erred in denying benefits or in the alternative that the case should be
remanded for the consideration of additional evidence. (See DE 1; P1. Br.).
I focus here on Ms. Perdomo’s claim that the Commissioner erred in
declining to supplement the record to include new school IEP records, and that
this case should be remanded so that those records can be considered. (P1. Br.
p. 30). Because I agree with that argument, I do not reach her other three
claims of error, which could be mooted on remand.2
Further citations are abbreviated as follows:
“P1. Br.”
Brief of Plaintiff Perdomo (DE 18)
=
“SSA Br.”
=
“P1. Reply”
Administration’s responding brief (DE 19)
=
Plaintiff Perdomo’s brief in reply (DE 21)
Ms. Perdomo asserts in addition that the Commissioner erroneously (1) failed to
properly credit medical findings and opinions, (2) found that X.M. did not meet Listing
2
2
H.
DISCUSSION
I consider Ms. Perdomo’s argument that the Court should order a “new
evidence” remand of the case pursuant to either “Sentence Pour” or “Sentence
Sbc.” (P1. Br. pp. 26—28).
112.11; and (3) failed to properly evaluate X.M.’s educational and psychological
evidence. (DE 18)
The reference is to the fourth and sixth sentences of section 405(g), highlighted
in the quotation:
3
(g) Judicial review
Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the
amount in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of notice of
such decision or within such further time as the Commissioner of Social
Security may allow. Such action shall be brought in the district court of
the United States for the judicial district in which the plaintiff resides, or
has his principal place of business, or, if he does not reside or have his
principal place of business within any such judicial district, in the
United States District Court for the District of Columbia. As part of the
Commissioner’s answer the Commissioner of Social Security shall file a
certified copy of the transcript of the record including the evidence upon
which the findings and decision complained of are based. The court
shall have power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of
the Commissioner of Social Security, with or without remanding the
cause for a rehearing. The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be
conclusive, and where a claim has been denied by the Commissioner of
Social Security or a decision is rendered under subsection (b) of this
section which is adverse to an individual who was a party to the hearing
before the Commissioner of Social Security, because of failure of the
claimant or such individual to submit proof in conformity with any
regulation prescribed under subsection (a) of this section, the court shall
review only the question of conformity with such regulations and the
validity of such regulations. The court may, on motion of the
Commissioner of Social Security made for good cause shown before
the Commissioner files the Commissioner’s answer, remand the case
to the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it 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; and
the Commissioner of Social Security shall, after the case is
remanded, and after hearing such additional evidence U so ordered,
3
The new evidence to which Ms. Perdomo refers consists of the December
18, 2015 school records from Newark Board of Education, Robert Clemente
School (hereinafter, the “December 18, 2015 1EV’ or the “2015 1EV). (DE 18
pp. 27—28; DE 21 Pp. 4—5). The SSA Appeals Council declined to supplement
the record to permit consideration of the information in the 2015 JEP. The
basis for its decision was the date of the records (Dec. 18, 2015), which fell
after the relevant period of alleged disability. (See R. 420 (“We also looked at
the records from your [IEP], dated December 18, 2015
.
.
.
the Administrative
Law Judge decided your case through July 11, 2014. This new information is
about a later time. Therefore, it does not affect the decision about whether you
were disabled beginning on or before July 11, 2014.”).
I note that the Appeals Council continued, “If you want us to consider
whether you were disabled after July 11, 2014, you need to apply again.” (Id.).
It appears that Ms. Perdomo did apply again in 2016, and that this time the
application for DIB was approved.5
modify or affinn the Commissioner’s findings of fact or the
Commissioner’s decision, or both, and shall file with the court any
such additional and modified findings of fact and decision, and, in
any case in which the Commissioner has not made a decision fully
favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner’s action in modifying or
affirming was based. Such additional or modified findings of fact and
decision shall be reviewable only to the extent provided for review of the
original findings of fact and decision. The judgment of the court shall be
final except that it shall be subject to review in the same manner as a
judgment in other civil actions. Any action instituted in accordance with
this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in
such office.
42 U.S.C.
§ 405(g) (emphasis added).
Plaintiffs erroneously refer to the record as the “December 18, 2016 records.”
DE 18 P. 26 (citing to R. 451—467, which is dated December 18, 2015).
Both parties refer to Ms. Perdomo’s alleged second SSI application on behalf of
X.M. in May 2016, which was, apparently, granted in November 2016. (DE 18 p. 5; DE
19 p. 3). Neither party provides that decision as an exhibit or identifies it in the record.
(Id.). Even so, I note that, in the documents related to the administrative process in
this case, a December 1, 2016 Report of Contact by the Newark, New Jersey Social
Security office notes that the “Federal Court Imeaning me] remanded Ithis] case to
4
4
As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sea, 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the AW’s findings, as long as they are
supported by substantial evidence. Jones v. Bamhad, 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 v. 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).
The court has two options when deciding whether to remand a
Commissioner’s decision. When the Appeals Council has denied review, the
court may apply “Sentence Four” review to “affirm, modify, or reverse the
Commissioner’s decision, with or without a remand based on the record that
was made before the ALL” Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir.
2001); see also 42 U.S.C.
§
405(g). However, Sentence Four review is
inappropriate when, as here, the claimant asks the court to review the Appeals
Council’s decision to not consider evidence that also was not before the AM.
Matthews, 239 F.3d at 594. That being said, the Court may remand the Case to
the Commissioner under “Sentence Six” review if the claimant seeks to rely on
“new and material” evidence that was “not before the AM,” and “if there was
Appeals Council. DC applied again and was approved. Please make decision on prior
federal court case remanded to appeals council in 08/2016. Retroactive payments are
possible on this record.” (R. 426) (emphasis added). As I have stated before, a later
[disabiityj finding does not require that the earlier one be vacated, any more than the
earlier finding of non-disability should have precluded the later application. Medical
conditions change. Soto t.’. Comm’r of Soc. Sec., No. 17-cv-89, 2018 WL 355138, at *7
(D.N.J. Jan. 10, 2018) (McNulty, J.).
5
good cause why it was not previously presented to the ALT.” Id.; see also 42
U.S.C.
§ 405(g).
The Third Circuit has fleshed out the requirements for Sentence Six
review as follows:
[T}o support a “new evidence” remand, the evidence must first be
“new” and not merely cumulative of what is already in the record.
Second, the evidence must be “material;” it must be relevant and
probative. Beyond that, the materiality standard requires that
there be a reasonable possibility that the new evidence would have
changed the outcome of the Secretarys determination. An implicit
materiality requirement is that the new evidence relate to the time
period for which benefits were denied, and that it not concern
evidence of a later-acquired disability or of the subsequent
deterioration of the previously non-disabling condition. Finally the
claimant must demonstrate good cause for not having incorporated
the new evidence into the administrative record.
Szubak v. Secy of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984)
(internal citations omitted).
Here, Ms. Perdomo asserts that the 2015 IEP presents new and material
evidence and that she had good cause not to present it to the ALT at the
hearing. (DE 18 p. 27). In response, defendants argue that the 2015 IEP is not
material. (DE 19 pp. 24—25). I disagree; for the reasons set forth below, Ms.
Perdomo has made an adequate showing to support a new evidence remand
under Sentence Six review.
First, I consider if the evidence is “new.” The December 2015 IEP offered
is certainly new in the sense that it was compiled after the July 2014 hearing.
Further, the IEP report is not merely “cumulative” of evidence in the record; it
is in fact, an update on X.M.’s progress and functioning.
Second, I consider if the evidence is “material.” The Appeals Council
rejected it based on the date: December 18, 2015, which is outside the period
of alleged disability. Of course, to be material, evidence must relate to the time
period for which benefits were denied. Szubak, 745 F.2d at 833. The December
2015 JEP, however, was not confined to X.M.’s status as of that date; it
6
incorporates material dating from the preceding three years. It was therefore
material and relevant, and should have been considered.
This is what I mean. In New Jersey, by default, a child’s IEP is conducted
every three years. N.J. Stat. Ann.
§ 6A: 14-3.8(a). Thus, by design, each new IEP
reviews the child’s performance and progress since the child’s last TEP, which
often will have been formulated some three years prior. Here, on February 7,
2014, at the time of the hearing, the only TEP before the AU was dated July 1,
2013. (R. 317). The information within that IEP, then, necessarily cut off as of
that date, and perhaps months before.6 Later, after the hearing, X.M.’s school
district compiled the December 18, 2015 IEP. By design, that 2015 IEP
included information regarding X.M.’s academic achievement and performance
since his last IEP. (R. 451—467). Thus, the 2015 IEP included information on
X.M.’s functioning between the July 2013 TEP and the February 2014 hearing. I
am satisfied that the IEP relates to the period for which benefits were denied.
Next, I determine that the information contained in the 2015 IEP was
relevant and probative to the AU’s decision. It includes a wide variety of
assessments, such as teacher input, a progress review, and several
evaluations. (R. 318, 452). In fact, 20 C.F.R.
§ 4l6.924a(b)(7) specifically
prescribes that the AU will consider school evidence and special education
assessments to determine whether a child has a disability. I cannot avoid a
remand, because I cannot find that there is no possibility that the December
2015 IEP would not have changed the outcome of the AU’s disability
determination.7
Finally, I consider whether Ms. Perdomo has presented good cause for
not incorporating the evidence into the administrative record. Here, the
analysis is simple—because the IEP did not exist at the time of the hearing, it
Generally citing to the 2013 IEP, Ms. Perdomo asserts that the IEP was
completed March 6, 2013, (See DE 18 p. 27); however, the IEP is officially dated July
1, 2013, and I will go by that date. (R. 317).
6
Indeed, some of the IEP’s information may have influenced a later AU to grant
Ms. Perdomo’s second application for SSI benefits.
7
7
would have been impossible for Ms. Perdomo to place it into the administrative
record.
In sum, I determine that the December 2015 TEP records support a “new
evidence” remand under Sentence Six. For that reason, I do not consider the
rest of the parties’ arguments at this time.
NI.
CONCLUSION
For the reasons set forth above, Ms. Perdomo’s appeal is GRANTED only
to the extent that the matter is remanded to the Social Security Administration
for consideration of the 2015 TEP, pursuant to 42U.S.C.
§ 405(g), sentence 6.
On remand, the SSA is free to convene a new hearing, take additional evidence,
and make whatever ruling is appropriate on the basis of a full record.
United States District Ju
8
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