Goodspeed v. Colvin
Filing
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DECISION AND ORDER granting # 11 Plaintiff's motion for judgment on the pleadings; and denying # 13 Defendant's motion for judgment on the pleadings. The Commissioner's determination is vacated, and this matter is remanded to the Commissioner for further administrative proceedings. Signed by Chief Judge Glenn T. Suddaby on 3/22/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
RACHEL GOODSPEED o/b/o D.L.G.,
Plaintiff,
v.
Case No. 1:14-CV-893 (GTS)
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
________________________________________
APPEARANCES:
OF COUNSEL:
LEGAL AID SOCIETY OF
NORTHEASTERN NEW YORK
Counsel for Plaintiff
112 Spring Street, Suite 109
Saratoga Springs, NY 12866
MARY MARTHA WITHINGTON, ESQ.
SOCIAL SECURITY ADMINISTRATION
OFFICE OF GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278
DAVID B. MYERS, ESQ.
JEREMY A. LINDEN, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Rachel Goodspeed
(“Plaintiff”) on behalf of her child, D.L.G., against Acting Commissioner of Social Security,
Carolyn W. Colvin (“Defendant” or “the Commissioner”) seeking Supplemental Security
Income (“SSI”) pursuant to 42 U.S.C. § 1383(c), are the parties’ cross-motions for judgment on
the pleadings. (Dkt. Nos. 11, 13.) For the reasons set forth below, Plaintiff’s motion is granted
and Defendant’s cross-motion is denied.
I.
RELEVANT BACKGROUND
A.
Factual Background
D.L.G. was born on February 5, 1999. At the time of the hearing, D.L.G. was in eighth
grade. D.L.G.’s alleged impairments are attention deficit disorder, bipolar disorder, oppositional
defiant disorder, and post-traumatic stress disorder.
B.
Relevant Procedural History
On November 28, 2011, Plaintiff applied for SSI on D.L.G.’s behalf. Plaintiff’s
application was initially denied, after which she timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On February 12, 2013, Plaintiff and D.L.G. appeared
before ALJ Robert Wright. (T. 40-56.) On March 15, 2013, the ALJ issued a written decision
finding D.L.G. not disabled under the Social Security Act. (T. 22-34.) On May 15, 2014, the
Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the final
decision of the Commissioner. (T. 1-3.) Thereafter, Plaintiff timely sought judicial review in
this Court.
C.
The ALJ’s Decision
Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (T. 25-34.) First, the ALJ found that D.L.G. was an “adolescent” pursuant
to 20 C.F.R. § 416.926a(g)(2) on November 28, 2011 (the date the application for benefits was
filed) and on March 15, 2013 (the date the ALJ’s decision was issued), having been born on
February 5, 1999. (T. 25.) Second, the ALJ found that D.L.G. had not engaged in substantial
gainful activity since the date the application for benefits was filed. (Id.) Third, the ALJ found
that D.L.G. suffers from attention deficit disorder, bipolar disorder, oppositional defiant disorder,
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and post-traumatic stress disorder, which are severe impairments pursuant to 20 C.F.R. §
416.924(c). (Id.) Fourth, the ALJ found that D.L.G. does not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix I (the “Listings”). (Id.) Fifth, the ALJ found that D.L.G.
does not have an impairment or combination of impairments that functionally equals an
impairment set forth in the Listings. (T. 25-34.) Sixth, and finally, the ALJ found that D.L.G.
has not been disabled, as defined by the Social Security Act, since November 11, 2011, the date
the application was filed. (T. 34.)
II.
THE PARTIES’ BRIEFINGS ON THEIR CROSS-MOTIONS
A.
Plaintiff’s Arguments
Generally, Plaintiff makes four arguments in support of her motion for judgment on the
pleadings. First, Plaintiff argues that the ALJ erred in finding that D.L.G.’s impairments do not
meet or equal the Listings. (Dkt. No. 11 at 16 [Pl.’s Mem. of Law].) Second, Plaintiff argues
that the ALJ erred in finding that D.L.G. did not have marked limitations in the areas of
attending to and completing tasks, interacting and relating with others, and caring for himself.
(Id. at 19.) Third, Plaintiff argues that the Appeals Council erred in failing to consider new and
material evidence that Plaintiff submitted. (Id. at 20.) Fourth, and finally, Plaintiff argues
generally that the ALJ’s decision is not supported by substantial evidence. (Id. at 22.)
B.
Defendant’s Arguments
Defendant makes three arguments in support of her cross-motion for judgment on the
pleadings. First, Defendant argues that substantial evidence supports the ALJ’s finding that
D.L.G.’s impairments did not meet or equal a listing. (Dkt. No. 13 at 5 [Def.’s Mem. of Law].)
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Second, Defendant argues that the ALJ correctly found that D.L.G.’s impairments did not
functionally equal a listing. (Id. at 8.) Third, and finally, Defendant argues that the new
evidence submitted to the Appeals Council does not warrant remand. (Id. at 12.)
III.
RELEVANT LEGAL STANDARDS
A court reviewing a denial of disability benefits may not determine de novo whether
an individual is disabled. 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y of Health & Human
Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner’s determination will be
reversed only if the correct legal standards were not applied, or if there determination was not
supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)
(“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles,
application of the substantial evidence standard to uphold a finding of no disability creates an
unacceptable risk that a claimant will be deprived of the right to have her disability
determination made according to the correct legal principles.”); Grey v. Heckler, 721 F.2d 41, 46
(2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and has
been defined as “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Where evidence is
deemed susceptible to more than one rational interpretation, the Commissioner’s conclusion
must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both sides,
because an analysis of the substantiality of the evidence must also include that which detracts
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from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be sustained
“even where substantial evidence may support the plaintiff’s position and despite that the court’s
independent analysis of the evidence may differ from the [Commissioner’s].” Rosado v.
Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the
Commissioner’s determination considerable deference, and may not substitute “its own
judgment for that of the [Commissioner], even if it might justifiably have reached a different
result upon a de novo review.” Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041
(2d Cir. 1984).
An individual under the age of eighteen (18) is disabled, and thus eligible for Social
Security Income benefits, if he or she has a medically determinable physical or mental
impairment, which results in marked and severe functional limitations, and which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). However, that definitional provision
excludes from coverage any “individual under the age of [eighteen] who engages in substantial
gainful activity . . .” 42 U.S.C. § 1382c(a)(3)(C)(ii).
By regulation, the agency has prescribed a three-step evaluative process to be employed
in determining whether a child can meet the statutory definition of disability. 20 C.F.R. §
416.924; Kittles v. Barnhart, 245 F. Supp. 2d 479, 487-88 (E.D.N.Y. 2003); Ramos v. Barnhart,
02-CV-3127, 2003 WL 21032012, at *7 (S.D.N.Y. May 6, 2003).
The first step of the test, which bears some similarity to the familiar five-step analysis
employed in adult disability cases, requires a determination of whether the child has engaged in
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substantial gainful activity. 20 C.F.R. § 416.924(b); Kittles, 245 F. Supp. 2d at 488. If so, then
both statutorily and by regulation the child is ineligible for SSI benefits. 42 U.S.C. §
1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b).
If the claimant has not engaged in substantial gainful activity, the second step of the test
next requires examination of whether the child suffers from one or more medically determinable
impairments that, either singly or in combination, are properly regarded as severe, in that they
cause more than a minimal functional limitation. 20 C.F.R. § 416.924(c); Kittles, 245 F. Supp.
2d at 488; Ramos, 2003 WL 21032012, at *7. In essence, “a child is [disabled under the Social
Security Act] if his impairment is as severe as one that would prevent an adult from working.”
Zebley v. Sullivan, 493 U.S. 521, 529 (1990).
If the existence of a severe impairment is discerned, the agency must then determine, at
the third step, whether the severe impairment meets or equals a presumptively disabling
condition identified in the listing of impairments set forth under 20 C.F.R. Pt. 404, Subpt. P.,
App. 1 (the “Listings”). 20 C.F.R. § 416.924(c). Equivalence to a listing can be either medical
or functional. 20 C.F.R. § 416.924(d); Kittles, 245 F. Supp. 2d at 488; Ramos, 2003 WL
21032012, at *7. If an impairment is found to meet, or qualify as medically or functionally
equivalent to, a listed disability and the twelve-month durational requirement is satisfied, the
claimant will be deemed disabled. 20 C.F.R. § 416.924(d)(1); Ramos, 2003 WL 21032012, at
*8.
Analysis of functionality is informed by consideration of how a claimant functions in six
main areas referred to as “domains.” 20 C.F.R. § 416.926a(b)(1); Ramos, 2003 WL 21032012,
at *8. The domains are described as “broad areas of functioning intended to capture all of what a
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child can or cannot do.” 20 C.F.R. § 416.926a(b)(1). Those domains include the following: (i)
acquiring and using information; (ii) attending and completing tasks; (iii) interacting and relating
with others; (iv) moving about and manipulating objects; (v) caring for oneself; and (vi) health
and physical well-being. 20 C.F.R. § 416.926a(b)(1).
Functional equivalence is established in the event of a finding of an “extreme” limitation,
meaning “more than marked,” in a single domain. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL
21032012, at *8. An “extreme limitation” is an impairment that “interferes very seriously with
[the claimant’s] ability to independently initiate, sustain, or complete activities.” 20 C.F.R. §
416.926a(e)(3)(i).
Alternatively, a finding of disability is warranted if a “marked” limitation is found in any
two of the listed domains. 20 C.F.R. § 416.926a(a); Ramos, 2003 WL 21032012, at *8. A
“marked limitation” exists when the impairment “interferes seriously with [the claimant’s]
ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(2)(i).
“A marked limitation may arise when several activities or functions are impaired, or even when
only one is impaired, as long as the degree of limitation is such as to interfere seriously with the
ability to function (based upon age-appropriate expectations) independently, appropriately,
effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 112.00(C).
IV.
ANALYSIS
A.
Improper Selective Consideration of Evidence
As indicated above in Part II.A. of this Decision and Order, generally Plaintiff argues that
the ALJ’s findings pertaining to the Listings and D.L.G.’s limitations are not supported by
substantial evidence. (Dkt. No. 11 at 16-20 [Pl.’s Mem. of Law].) However, the Court is unable
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to determine whether the ALJ’s decision is supported by substantial evidence, because the Court
must first find that the proper legal standard was applied; and in this case, the Court finds that it
was not.
“‘Where there are gaps in the administrative record or the ALJ has applied an improper
legal standard, we have, on numerous occasions, remanded to the [Commissioner] for further
development of the evidence.’” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999) (quoting
Pratts v. Chater, 94 F.3d 34, 39 [2d Cir. 1996]). This is a case where a remand to the
Commissioner for factual determinations and application of the correct legal standards is
required. See Pratts, 94 F.3d at 39.
It is axiomatic that a full and fair hearing in accordance with beneficent purposes of the
Social Security Act requires consideration of all relevant evidence. See Echevarria v. Sec’y of
Health & Human Servs., 685 F.2d 751, 755 (1982) (holding that a reviewing court must
determine whether the administrative law judge adequately protected the claimant’s rights by
ensuring that all of the relevant facts were sufficiently developed and considered). Thus, while
administrative law judges are entitled to resolve conflicts in the evidentiary record, they cannot
pick and choose only evidence that supports their particular conclusions. See Smith v. Bowen,
687 F. Supp. 902, 904 (S.D.N.Y. 1988) (citing Fiorello v. Heckler, 725 F.2d 174, 175-76 [2d
Cir. 1983]). In other words, an administrative law judge may not “cherry-pick” evidence that
supports his or her opinion while ignoring evidence that does not. Scott v. Astrue, 647 F.3d 734,
740 (7th Cir. 2011). An ALJ’s “failure to acknowledge relevant evidence or to explain its
implicit rejection is plain error.” Ceballos v. Bowen, 649 F. Supp. 693, 702 (S.D.N.Y. 1986)
(citing Valente v. Sec’y of Health and Human Servs., 733 F.2d 1037, 1045 [2d Cir. 1984]). The
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Court finds that the ALJ selectively considered evidence that supported his conclusion in his
analysis.
For example, the ALJ selectively considered evidence to support a finding that D.L.G.
did not have a marked limitation in his interaction with others. The ALJ found that D.L.G. is
“able to adequately . . . interact with peers and adults.” (T. 26.) He emphasized that D.L.G.
“was also described [in an Individualized Education Plan or “IEP” report] as ‘a likeable and
engaging young student who enjoys relationships and ultimately wishes to please adults.’” (T.
27.) He also cited the IEP report in support of his finding that “he has no serious difficulty
interacting with others, handling frustration, and coping.” (T. 28.)
However, the ALJ’s finding ignores nearby portions of the IEP report. One of the above
quotations from the report is contained in a portion entitled “STUDENT STRENGTHS.” (T.
413.) The paragraph immediately preceding the quotation reads as follows:
[D.L.G.’s] relationships are quite strained at this time as a result of his
mood dysregulation and lability. He becomes remorseful after he goes
through an [sic] verbally aggressive episode. Although he has not become
physically aggressive to others [he] has postured towards staff and other
peers before backing down and removing himself from the situation. His
feelings of self worth fluctuate as it relates [sic] to his behaviors and
choices.
(Id.) The paragraph immediately following the quotation states that D.L.G. “needs social skills
training to increase his knowledge and use of coping skills for times when he is frustrated or
angry. He needs to learn to manage his mood, behavior, and impulsivity in a more structured
program with built in support.” (Id.) In determining D.L.G.’s functional limitations, the ALJ
appears to cite only D.L.G.’s strengths, and ignore his weaknesses.
This example is not an isolated one. The ALJ also cites a second IEP report, which
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similarly states that D.L.G. is “a likeable boy who does want to please others and follow the
rules.” (T. 31.) Again, however, the ALJ disregards related portions that do not support his
conclusions. The paragraph immediately preceding the quoted portion states as follows:
[D.L.G.] has had difficulty in his social interactions. Although he is a
likeable boy who does try to please. He avoids activities that require
cognitive effort and avoids any demands that are made of him that he does
not want to do. He can be very manipulative to get his way and has
become increasingly provocative and threatening as a way to avoid
interactions or work and be sent home. His mood is labile and he has a
high degree of anxiety that has recently become more prevalent with panic
symptoms.
(T. 467.) Again, the ALJ acknowledges only the portion of the IEP report that supports his
conclusion.
Furthermore, the ALJ emphasizes repeatedly in his decision that D.L.G.’s behavioral
problems result from issues he faces at home, and seems to imply that D.L.G. does not have
similar behavioral problems at school. (T. 22-34.) However, the ALJ fails to note D.L.G.’s
disciplinary records. Those records span multiple pages, and illustrate twenty-one (21) incidents
in which D.L.G. was the offender. (T. 189-95.) The incidents include insubordination,
disrespectful behavior, and fighting. (Id.) For example, on May 14, 2012, D.L.G. punched
another student in the face, told a teacher that he did it on purpose, and laughed. (T. 189.) He
also told the teacher that he wanted to be suspended, and he was in fact suspended for two days.
(Id.) On April 20, 2012, he called a teacher fat and threatened to break the windows in the
school. (Id.) The ALJ does not mention any of D.L.G.’s behavioral incidents, but instead states
that D.L.G. “has no serious difficulty interacting with others.” (T. 28.)
It is apparent from the record that the ALJ has selectively considered evidence, noting
only the evidence that supports his conclusion, and failing to acknowledge or address other
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evidence. For that reason, it would be improper for the Court to determine whether substantial
evidence supports the ALJ’s decision, and the case must be remanded. See Pratts, 94 F.3d at 39.
B.
Consideration of New Evidence on Remand
Plaintiff also argues that the Appeals Council improperly disregarded new and material
evidence related to the period of or before the ALJ’s decision. (Dkt. No. 11 at 20-22 [Pl.’s Mem.
of Law].) As Defendant correctly notes, however, a previously omitted portion of the
administrative record contains a letter from the Appeals Council, which acknowledges receipt
and review of the evidence. (T. 648.) The Appeals Council’s letter notes that it reviewed the
documents, and decided that they did not merit a change in its prior decision. Therefore, the
documents in question have already been made part of the administrative record, and Plaintiff’s
motion is moot insofar as it attributes error to the Appeals Council’s alleged failure to consider
the evidence.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
GRANTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
DENIED; and it is further
ORDERED that the Commissioner’s determination is VACATED; and it is further
ORDERED that the matter is REMANDED to the Commissioner for further
administrative proceedings.
Dated: March 22, 2016
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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