Marino v. Commissioner of Social Security

Filing 39

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for proceedings consistent with the Memorandum-Decision and Order. Signed by Senior Judge Gary L. Sharpe on 2/5/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LEO A. MARINO,
Plaintiff,

8:14-cv-1033
(GLS)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Leo A. Marino
Pro Se
Franklin Correctional Facility
P.O. Box 10
62 Bare Hill Road
Malone, NY 12953

FOR THE DEFENDANTS:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278

LAUREN E. MYERS
Special Assistant U.S. Attorney

Gary L. Sharpe
Senior District Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Pro se plaintiff Leo A. Marino challenges the Commissioner of Social
Security’s denial of Supplemental Security Income (SSI), seeking judicial
review under 42 U.S.C. § 1383(c)(3). (Compl., Dkt. No. 1.) After reviewing
the administrative record and carefully considering Marino’s arguments, the
Commissioner’s decision is reversed and remanded for further
administrative proceedings.
II. Background
On May 24, 2010, Marino filed an application for SSI under the Social
Security Act (“the Act”), alleging an onset date of October 24, 1994. (Tr.1
at 60, 343-46.) After his application was denied, (id. at 61-64), Marino
requested a hearing before an Administrative Law Judge (ALJ), (id. at 6567). Marino’s non-attorney representative, but not Marino, appeared for
the scheduled hearing, (id. at 32-41), and at a second scheduled hearing
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Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt.

No. 13.)

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Marino appeared pro se and requested an adjournment to find
representation, (id. at 42-48). Although the ALJ granted his adjournment,
Marino appeared pro se at the subsequent hearing before the ALJ on
August 23, 2013. (Id. at 49-59.) On September 20, 2013, the ALJ issued
an unfavorable decision finding Marino not disabled and denying the
requested benefits, (id. at 12-31), which became the Commissioner’s final
determination upon the Appeals Council’s denial of review, (id. at 1-7).
Marino commenced this action by filing his complaint on August 20,
2014 wherein he sought review of the Commissioner’s determination. (See
generally Compl.) The Commissioner filed an answer and a certified copy
of the administrative transcript. (Dkt. Nos. 12, 13.) Each party filed a brief,
Marino seeking a judgment on his pleading and the Commissioner
conceding that the court should remand to cure a procedural error. (Dkt.
Nos. 18, 25.) Marino filed a reply brief responding to the Commissioner’s
concession. (Dkt. No. 38.)
III. Contentions
Marino contends that the Commissioner’s decision is tainted by legal
error and is not supported by substantial evidence. (Dkt. No. 18 at 3-27.)
Specifically, Marino argues that the ALJ erred because he did not
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sufficiently develop the record, follow the treating physician rule, or support
his residual functional capacity (RFC) determination with substantial
evidence. (Id.) Additionally, Marino contends that he was denied
representation because the ALJ only afforded him three months to find
counsel. (Id. at 3-11.) The Commissioner supports reversal because
Marino did not have an opportunity to question the vocational expert (VE)
and recommends remand for further proceedings. (Dkt. No. 25 at 5-7.)
IV. Facts
The court adopts the undisputed factual recitations of the parties and
the ALJ. (Dkt. No. 18 at 1-2; Dkt. No. 25 at 1; Tr. at 17-25.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g)2 is well established and will not be repeated here. For
a full discussion of the standard and the five-step process by which the
Commissioner evaluates whether a claimant is disabled under the Act, the
court refers the parties to its previous decision in Christiana v. Comm’r of
Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-3 (N.D.N.Y.

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42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI

claims.

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Mar. 19, 2008).
VI. Discussion
A.

VE Testimony
The Commissioner concedes that the ALJ erred by failing to provide

Marino an opportunity to cross-examine the VE or object to his testimony.
(Dkt. No. 25 at 5.) Accordingly, the Commissioner advocates that the court
remand for further proceedings. (Id. at 5-7.) The Commissioner
emphasizes that remand rather than an award of disability benefits is the
proper relief because the record suggests that Marino is not disabled. (Id.)
Marino agrees that he was denied due process, but argues that
appropriate remedy is a payment of benefits. (Dkt. No. 38 at 23-24, 30.)
Alternatively, Marino seeks an order that “requir[es] the production of all
records and the opportunity to present his case.” (Id. at 30.)
At step five of the sequential analysis, the burden shifts to the
Commissioner to produce evidence that an alternative job exists which
Marino is capable of performing. See Balsamo v. Chater, 142 F.3d 75, 80
(2d Cir. 1998); Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638,
642 (2d Cir. 1983); see also 20 C.F.R. § 416.960(c). To that end, the
Commissioner must show a job existing in significant numbers in the
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national economy that Marino could perform based on his RFC, age,
education, and prior vocational experience. See 42 U.S.C. § 423(d)(2)(A);
20 C.F.R. § 416.960(c).
In making a step five ruling, an ALJ may rely on the
Medical–Vocational Guidelines found in 20 C.F.R. pt. 404, subpt. P, app. 2,
as long as the claimant's age, education, work experience, and RFC
coincide with the criteria of a rule contained in those Guidelines. See 20
C.F.R. § 404.1569; see also Calabrese v. Astrue, 358 F. App’x 274, 275
n.1 (2d Cir. 2009). However, when a claimant's nonexertional impairments
“significantly limit the range of work permitted by his exertional limitations,”
the Commissioner “must introduce the testimony of a [VE] (or other similar
evidence) that jobs exist in the economy which [the] claimant can obtain
and perform.” Bapp v. Bowen, 802 F.2d 601, 603, 605 (2d Cir. 1986)
(internal quotation marks and citation omitted).
“[D]isability benefits are statutorily created property interests
protected by the Fifth Amendment,” thus, procedural protections attach to
the hearings which determine a claimant’s eligibility. Brennan v. Colvin,
No. 13-cv-6338, 2015 WL 1402204, at *16 (S.D.N.Y. Mar. 25, 2015).
Specifically, under the Hearings, Appeals and Litigation Law Manual
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(HALLEX), an internal Social Security Administration procedural manual,
ALJs must “ask the claimant . . . whether [he] ha[s] any objections to the
VE testifying.” Soc. Sec. Admin., HALLEX I-2-6-74(B), Testimony of a
Vocational Expert, 2013 WL 751902. Additionally, “disability benefit[]
claimants have a right to cross-examine the author of an adverse report
and to present rebuttal evidence.” Brennan, 2015 WL 1402204, at *16
(citing Townley v. Heckler, 748 F.2d 109, 114 (2d Cir. 1984)).
Here, the ALJ heard VE testimony about the availability of work for
someone of Marino’s capability. (Tr. at 57-58.) However, the ALJ
dismissed Marino, who appeared at the hearing pro se,3 just after he
testified but before the VE was sworn-in as a witness. (Id. at 56-57.)
Specifically, the ALJ stated that “[w]e’re done at this point. If something
comes up in the records and I need to have another hearing, we’ll send
and let you know. Have a good day.” (Id. at 56.) Marino did not have the
opportunity to object to the VE’s testimony or to cross-examine him. Nor
did the ALJ inform Marino of his right to do so. For that reason, the ALJ
committed legal error. See Brennan, 2015 WL 1402204, at *16.

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Marino was incarcerated at the time of the hearing and was apparently transported
from Coxsackie Correctional Facility to attend the proceeding. (Tr. at 52-54.)

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Marino advocates that the appropriate remedy is an award of
benefits. (Dkt. No. 38 at 30.) The Second Circuit, however, has held that
a district court commits reversible error if it awards disability benefits on an
incomplete administrative record. See, e.g., Williams v. Apfel, 204 F.3d
48, 50 (2d Cir. 2000); Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999).
Rather, a court will only award benefits “when the record provides
persuasive proof of disability and a remand for further evidentiary
proceedings would serve no purpose.” Parker v. Harris, 626 F.2d 225, 235
(2d Cir. 1980). The record here does not compel a finding of disability
such that a further hearing would serve no purpose. In fact, the medical
evidence suggests the opposite. (See, e.g., Tr. at 1620-23, 1955-56.)
Additionally, Marino acknowledges that the record is undeveloped. (Dkt.
No. 38 at 21.) He contends that the some medical evidence has been
withheld by the government and the evidence that the ALJ relied upon did
not sufficiently compel a finding of no disability. (Id.) Accordingly, the
court reverses and remands for further administrative proceedings.
B.

Other Contentions
Because the court remands for the reasons stated above, it will only

briefly discuss Marino’s remaining contentions. First, Marino argues that
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he was denied his statutory right to counsel. (Dkt. No. 18 at 3-11). The
ALJ, however, satisfied his statutory burden by informing Marino of his right
to counsel, providing a list of free legal service organizations, and even
adjourning the proceeding for over three months so Marino could obtain
representation. See 42 U.S.C. § 1383(d)(2)(D); Lamay v. Comm’r of Soc.
Sec., 562 F.3d 503, 508 (2d Cir. 2009). However, when Marino appeared
at the subsequent hearing without counsel, he waived his right to
representation. See Gonzalez v. Barnhart, No. 02 Civ. 5813, 2003 WL
22383376, at *4 (S.D.N.Y. Oct. 16, 2003) (holding claimant waived right to
counsel after the ALJ granted a two-month adjournment and claimant
failed to obtain representation). Consequently, his contention is meritless.
Second, Marino contends that the ALJ violated his right to a fair
hearing by failing to consider certain medical and non-medical evidence.
(Dkt. No. 18 at 12.) Specifically, Marino argues that the ALJ did not review
a September 2013 MRI, 2012-2013 mental health progress notes from the
Coxsackie Correctional Facility, his New York State criminal history, and
2010-2011 biopsychosocial medical reports. (Id.; see Tr. at 1355-85,
1996-98, 1999-2132, 2140-67.) The evidence Marino complains of was
not before the ALJ but submitted by Marino with his administrative appeal
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to the Appeals Council. (Tr. at 5-7.) The new evidence became part of the
record, see Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996), and,
accordingly, the Appeals Council reviewed it when it denied Marino’s
request to review the ALJ’s decision, (Tr. at 2). The Appeals Council
determined that the new evidence was duplicative or did not provide a
basis to change the ALJ’s decision and found the record had been fully
developed by the ALJ. (Id.) Although not raised by Marino in his brief, he
also submitted on administrative appeal treatment records from Faye
Rabinovich, his treating physician, dated September 24, 2010 to August
25, 2011. (Id. at 2213-37.) The Appeals Council failed to provide good
reasons for the weight it gave to the opinion of Dr. Rabinovich, and the
court must also remand on this ground. See Petrie v. Astrue, 412 F. App’x
401, 407 (2d Cir. 2011) (holding the Commissioner must provide “‘good
reasons’ for the weight given to the treating source’s opinion”) (citations
omitted); see also Wilson v. Colvin, No. 7:13-cv-295, 2014 WL 4826787, at
*2-3 (N.D.N.Y. Sept. 29, 2014) (requiring remand for review of new medical
evidence when the Appeals Council failed to provide good reasons to
discount a treating physician’s opinion). As a result, on remand, the ALJ
must provide good reasons for the weight he affords to Dr. Rabinovich’s
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opinion.
Because Marino’s remaining contentions, (Dkt. No. 18 at 14-27), may
be impacted by the subsequent proceedings directed by this Order, it
would be improper for the court to consider them at this juncture.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Memorandum-Decision and Order; and it
is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
February 5, 2016
Albany, New York

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