PERDOMO v. COMMISSIONER OF SOCIAL SECURITY

Filing 30

OPINION. Signed by Judge Kevin McNulty on 7/7/2020. (ams, )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JACQUELINE PERDOMO o/b/o X.M.
Plaintiff,

Civ. No. 17-cv-5003 (KM)
OPINION

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
KEVIN MCNULTY, U.S.D.J.:

This matter comes before the court upon of the motion of Defendant, the
Acting Commissioner of Social Security (the “Commissioner”), for
reconsideration (DE 27) of this Court’s April 5, 2019 Opinion and Order. That
Opinion and Order directed a “Sentence 6” remand for consideration of
supplemental evidence in connection with the Commissioner’s decision denying
Supplemental Security Income (“SSI”) for Plaintiff, Ms. Perdomo, on behalf of
minor, X.M. (See DE 25, 26.) For the reasons stated herein, the motion for
reconsideration will be granted.
I.

BACKGROUND
Because I write for the parties, I assume familiarity with the background

of this matter, but will repeat certain facts pertinent to this motion. Ms.
Perdomo sought to reverse a 2014 Social Security Administration (“SSA”)
administrative law judge (“ALJ”) decision that her child, X.M., was not disabled
and thus not entitled to child’s SSI for the time period between April 30, 2012

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and July 11, 2014, when X.M. was 5-7 years old. (DE 27 at 2.) 1 Ms. Perdomo
appealed the final decision of the Commissioner to this Court, arguing that the
Commissioner erred in denying SSI benefits and that the case should be
remanded to the SSA for consideration of additional evidence that was not part
of the record at the time of the 2014 ALJ decision.
In her appeal to the SSA Appeals Council, Ms. Perdomo argued that the
SSA should consider a record from the Newark Board of Education, Robert
Clemente School (the “2015 Individual Education Plan” or “2015 IEP”). The ALJ
did consider an earlier IEP, dated July 1, 2013 (the “2013 IEP”). The 2015 IEP,
however, was not a part of the record before the ALJ in July 2014, for the
obvious reason that it did not yet exist. The Appeals Council declined to
consider the 2015 IEP because the date of the record, December 18, 2015, fell
outside of the claimed period of disability, which ended July 11, 2014. On
appeal to this Court, Ms. Perdomo argued for a “Sentence Four” reversal or
remand of the Secretary’s decision, and also argued that the 2015 IEP was
“new evidence” requiring a “Sentence Six” remand for consideration. See 42
U.S.C. § 405(g). 2

X.M. was later found to be disabled and was awarded benefits for a later period.
The dispute here, then, is over historical rather than ongoing benefits.
1

2

“Sentence Four” of section 405(g) states:
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.
“Sentence Six” of section 405(g) states:
. . . . 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
2

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I agreed with Ms. Perdomo that the exclusion of the 2015 IEP based on
its date was erroneous, because it could contain information that related back
to the claimed period of disability. I also found that the 2015 IEP met the
standards for “new evidence” under Sentence Six of 42 U.S.C. § 405(g).
Specifically, I found that the 2015 IEP was “new” because it was not “merely
‘cumulative’ of evidence in the record,” and that it was “material” because
there would necessarily be information in the 2015 IEP pertaining to X.M.’s
academic achievement and performance during the claimed period of disability,
such as academic assessments, teacher inputs, a progress review, and several
evaluations. (DE 25 at 7.) I also determined that I could not “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 ALJ’s disability determination.”
(Id.) Finally, I found that there was good cause for not incorporating the 2015
IEP into the administrative record—the IEP did not exist at the time of the 2014
hearing. (Id.) As a result, I granted Ms. Perdomo’s appeal and remanded the
matter to the SSA to consider the 2015 IEP as part of its assessment. I
specifically stated that “[o]n 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.”

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 if so ordered,
modify or affirm 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. . .
.
42 U.S.C. § 405(g)
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The Commissioner now moves this court to reconsider my decision to
remand the matter for consideration of the 2015 IEP, arguing that the prior
Opinion contains
(a) a legal error because the state regulation that I relied on “does not
contemplate a historical review of a child’s academic performance for the entire
period between IEPs.” (See DE 27 at 3); and
(b) a factual error because the 2015 IEP is not, or does not contain, “new
evidence.”
I will refer to these as “issue (a)” and “issue (b).” I continue to disagree
with the Commissioner as to issue (a), which was the basis for my prior
decision. I will grant reconsideration, however, based on the Commissioner’s
factual presentation, which was previously lacking, as to issue (b).
II.

DISCUSSION
A. Standard of Review
The standards governing a motion for reconsideration are well settled.

Reconsideration is an extraordinary remedy that is to be granted “very
sparingly.” L. Civ. R. 7.1(i) cmt. 6(d); Friedman v. Bank of Am., N.A., 2012 WL
3146875, at *2 (D.N.J. Aug. 1, 2012). Generally, reconsideration is granted in
three scenarios: (1) when there has been an intervening change in the law; (2)
when new evidence has become available; or (3) when necessary to correct a
clear error of law or to prevent manifest injustice. See North River Ins. Co. v.
CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Local Civil Rule
7.1(i) requires a movant to specifically identify “the matter or controlling
decisions which the party believes the Judge or Magistrate Judge has
overlooked.” Id. Evidence or arguments that were available at the time of the
original decision will not support a motion for reconsideration. Damiano v. Sony
Music Entm’t, Inc., 975 F. Supp. 623, 636 (D.N.J. 1997); see also North River
Ins. Co., 52 F.3d at 1218; Bapu Corp. v. Choice Hotels Int’l, Inc., 2010 WL
4

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5418972, at *4 (D.N.J. Dec. 23, 2010) (citing P. Schoenfeld Asset Mgmt. LLC v.
Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001)).
All of that said, this Court will not cling to a ruling if it is convinced that
it was erroneous. For the reasons expressed herein, strict application of the
reconsideration standard would not be a provident exercise of the Court’s
discretion. Most likely it would lead to a futile remand, more delay in an
already-aged case, and a second, overlapping appeal. Because I have a
sufficient basis to decide the issue now, I will do so.
B. Whether N.J. Admin. Code § 6A:14-3.8 contemplates a
historical review of a child’s academic performance
The Commissioner first argues that I committed legal error, i.e., that
under relevant state law, the 2015 IEP could not relate back to the claimed
period of disability (April 30, 2012 to July 11, 2014). 3 In support, the
Commissioner cites the state regulation which covers the reevaluation of a
student within three years of a previous classification “to determine whether
the student continues to have a disability,” N.J. Admin. Code § 6A:14-3.8,
which she says “does not contemplate a historical review of a child’s academic
performance for the entire period between IEPs.” (DE 27 at 3.) The regulation,

3

The relevant portion of my Opinion states as follows:
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 IEP, which often
will have been formulated some three years prior. Here, on February 7,
2014, at the time of the hearing, the only IEP before the ALJ was dated
July 1, 2013. (R. 317). The information within that IEP, then, necessarily
cut off as of that date, and perhaps months before. 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.
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in the Commissioner’s view, requires the IEP team to review “current classroom
based assessments and observations” and that reevaluation requires only a
determination of “[t]he present levels of academic achievement and functional
performance” in order to determine the student’s current needs. N.J. Admin.
Code § 6A:14-3.8 (emphasis added).
That is true as far as it goes; the IEP team is tasked with assessing the
student’s current needs, not making a historical study of what the student’s
needs may have been at every point in the past. But it is not the school
authorities’ ultimate ruling that was the basis for my order of remand. It was
the historical information contained in the 2015 IEP report. Such information, I
found, could and likely did relate to the student’s status and progress during
the period preceding the 2015 IEP—a period which substantially overlapped
the period of claimed disability. That is the supplemental evidence that I
believed the SSA, as an original matter, should consider. It might or might not
change the ALJ’s mind, but it is potentially relevant. Consideration of it is not,
as the Commissioner would have it, ruled out as a matter of law.
The Commissioner’s reading of State law focuses solely on the
assessment of the student’s current condition. (DE 27 at 3.) In coming to its
conclusions about the student’s current condition, however, the IEP team may
use and incorporate historical data from the years intervening since the last
IEP. The applicable regulation specifically states as follows:
1. The IEP team shall review existing evaluation data on the
student, including:
i. Evaluations and information provided by the parents;
ii. Current classroom based assessments and
observations; and
iii. Observations by teachers and related services
providers;
N.J. Admin. Code § 6A:14-3.8 (emphasis added). The quoted regulation is a
non-exhaustive list of the kinds of information an IEP team may consider when
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reevaluating a student. The data, of course, must be currently “existing,” but
the data may concern matters that occurred in the past.
Nothing in the regulation precludes the IEP team from using assessments or
other information dating from prior years, even if they are contained in a
document dating from after the claimed period of disability. True, that
information is used to make a current IEP assessment, as of 2015—but the
information itself may date from earlier. And if so, as I held earlier, the
information may be relevant to the SSA’s assessment of the claimant’s
condition during the claimed period of disability.
I therefore disagree that my prior ruling was based on a legal error
regarding the IEP regulations. And I adhere to my ruling that the Appeals
Council’s basis for rejecting the IEP report—that it dated from December 2015,
outside the claimed period of disability—was incorrect. It is the date of the
information within the report, not the date of the report itself, that is critical.
See, e.g., 20 C.F.R. § 416.1470(a)(5) (Appeals Council to consider new, material
evidence that “relates to the period on or before the date of the hearing
decision”) (emphasis added).
The Commissioner expresses a concern that unless I generically rule out
consideration of post-hearing IEPs, we may see an avalanche of automatic
remands in child disability cases. I find that concern overblown.
First, I am not opening the door to acceptance of new evidence at the
district court stage; rather, I am reviewing the Appeals Council’s refusal to
consider additional information that was in fact presented to it. The remand
here was based on what I perceived to be a procedural error—the Appeals
Council’s refusal to consider the IEP simply because it bore a date of 2015—
that prevented potentially relevant information from being considered. 4

One aspect of the prior opinion requires further comment, however. This was
not a Sentence 6 remand in the sense that the court has received new information that
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4

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Second, any claimant will have to demonstrate that such information
was indeed new and material. Often it will fall between those two stools—i.e., it
will relate to a period after the claimed period of disability, or it will duplicate
contemporaneous evidence already in the record.
As to issue (a), then, reconsideration is denied. The 2015 IEP may and
should be reviewed.
C. Whether the 2015 IEP contains “new” and “material”
information
More substantial is issue (b)—the Commissioner’s argument that even if
consideration of a post-hearing IEP is not legally barred, the information within
this 2015 IEP is not in fact “new” or “material.” The Commissioner did not fully
explore this argument previously, preferring to rely on the categorical argument
that consideration of an IEP dating from 2015 was barred as a matter of law.
For that lack of factual specificity the Plaintiff must bear part of the blame as
well. 5

the agency should consider. It is perhaps better viewed as an ordinary Sentence 4
remand based on a procedural error that impaired the consideration of relevant
evidence that had in fact been placed before the agency, albeit at the Appeals Council
stage. The distinction is immaterial at this point, given my ruling in the following
section.
Plaintiff’s moving brief cited the Appeals Council’s legal and procedural error in
excluding the 2015 IEP merely because it post-dated the claimed period of disability.
(Pl. Brf. 26, DE 18 (citing 20 C.F.R. § 416.1470(a)(5) (Appeals Council to consider new,
material evidence that “relates to the period on or before the date of the hearing
decision”) (emphasis added)). Plaintiff’s brief was not very specific about what
information in the IEP allegedly “relates to the [relevant] period” and is not cumulative.
5

The SSA’s responding brief confined itself to the same legal issue, based on the
2015 date of the IEP. (SSA Brf. 24, DE 19 (“V. Evidence from December 2015, Nearly
18 Months after the ALJ’s Decision, Is Not Material Evidence that Could Form a Basis
for Sentence Six Remand.”)) The SSA brief, like that of Plaintiff, failed to parse the
particular information in the IEP for its relevance to the period of disability.
Plaintiff’s Reply followed suit, in that it failed to analyze the specific information
within the IEP for novelty and materiality. (Pl. Reply 4, DE 21.)
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Now, the Commissioner argues that the historical assessments within
the 2015 IEP were either too early to be “new,” or too late to be “material.” That
is, the Commissioner cites the assessments one-by-one, and argues that were
either
(a) already contained in the 2013 IEP or other evidence that was before
the ALJ and taken into account in the 2014 decision (See DE 27 at 4;
see also Tr. 302, 318, and 452); or
(b) concerned matters dating from November and December of 2015, and
did not address X.M.’s functioning before July 11, 2014. (See id.)
Specifically, the Commissioner points to the following historical
assessments in the 2015 IEP:
•

Speech/Language Evaluation by Sandra Velez dated February 6,
2013;

•

Psychological Assessment/Evaluation by Frank Nascimento dated
January 30, 2013;

•

Social/Emotional Assessment by Jamil Huff dated December 18,
2012;

•

Educational Assessment by Denise Gordon dated February 19,
2013;

•

Teacher Input by Stephanie Abrantes dated December 17, 2015;
and

•

Report Card Review by the “CST” dated November 24, 2015.

(See Tr. at 452.)
The first four items, assessments by Ms. Velez, Mr. Nascimento, Mr.
Huff, and Ms. Gordon, are “material” in the sense that they relate to the period
before July 11, 2014—but they are not “new.” These assessments were
included in the 2013 IEP, which was before the ALJ when the ALJ denied SSI
benefits. (See Tr. at 23–24 (references to Mr. Huff and Mr. Nascimento’s
assessments and Exhibit 14E which is the 2013 IEP in the ALJ Opinion), 302,
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318, 278–87, 288–93, and 294–98.) The latter two items, current assessments
as of November and December 2015, are “new”—but they are not “material.”
They do not relate to the time period before July 2014. (See DE 27 at 5.)
I therefore agree with the Commissioner’s analysis. Assuming that the
SSA could permissibly have considered the 2015 IEP, it would not have found
there was any evidence that was both “new” and “material.”
Plaintiff’s response to the motion for reconsideration is largely irrelevant.
She cites medical records from Drs. Okoh, Yalkowsky, and Gomez-Rivera,
which, she says are “consistent” with X.M.’s 2015 IEP, supporting a diagnosis
of ADHD, as well as certain behavioral problems and learning disabilities. (See
DE 28 at 3–4.) These records both date from and relate to the period before
July 11, 2014, 6 and are therefore material. They are not, however, “new,”
because the ALJ specifically considered those records in the 2014 decision.
(See Tr. at 19, 23, 24 (Dr. Gomez-Rivera’s assessments); see also Tr. at 22 (Drs.
Yalkowsky and Okoh’s assessments); Tr. at 41–42 (Exhibit List from 2014 ALJ
decision).)
Plaintiff also refers to various school records that again are said to
confirm X.M.’s various disabilities as noted in the 2015 IEP. (See DE 28 at 5;
see also Tr. at 191–98 (Teacher Questionnaire dated May 3, 2012 from
LaTonya Douglas), 278–99 (2013 IEP), 364–65 (School
Correspondence/Teacher’s Rating Scale dated May 17, 2012 from Roberto Del
Rios), 451–67 (the 2015 IEP).) These documents, however, were either
considered as part of the ALJ’s 2014 decision, or refer to the 2015 IEP itself.
(See Tr. at 19–20 (references to Mr. Del Rios’s Teacher’s Rating Scale and Ms.

Plaintiff asserts in her response that one of Dr. Okoh’s assessments was dated as of
March 14, 2014, (see DE 28 at 3), however that is the date that the record was
printed. The correct date of this medical record refers to assessments made between
September 17, 2012 to June 4, 2013, which was included as one of the medical
records considered in the ALJ’s 2014 decision.
6

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Douglas’s Teacher Questionnaire in 2014 ALJ decision) see also Tr. at 23–24
(references to the 2013 IEP).) They do not advance Plaintiff’s argument for
reconsideration.
As a result, I find that Plaintiff has not pointed to any new and material
evidence within the 2015 IEP that would warrant a remand to the ALJ.
III.

CONCLUSION

The Commissioner’s motion for reconsideration is therefore GRANTED
and my prior order that the matter be remanded is REVERSED. To be clear,
the motion is denied insofar as it relies on issue (a), i.e., the categorical
inadmissibility of a post-hearing IEP. It is granted, however, insofar as it relies
on issue (b), in that the Court’s analysis of the particular information within
that 2015 IEP yields the conclusion that it is not new and material.
The Court’s prior Order and Opinion, now reversed on reconsideration,
remanded for consideration of the 2015 IEP without reaching the Plaintiff’s
substantive grounds for appeal. I will shortly enter a separate Opinion and
Order dealing with those substantive grounds.
An Order will be entered in accordance with this Opinion.
Dated: July 7, 2020
/s/ Kevin McNulty
____________________________
Hon. Kevin McNulty
United States District Judge

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