Graves v. Astrue
Filing
29
OPINION AND ORDER: For the reasons set forth in the Opinion & Order, the Commissioner's December 12, 2013 cross-motion for a remand is granted. Plaintiff's July 23, 2013 motion for a remand with a limitation is granted in part. The case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion. This judgment disposes of the action. See Sullivan v. Finkelstein, 496 U.S. 617, 62425 (1990). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 3/31/2014) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
T.G., as Natural Guardian
:
o/b/o M.R.G., an Infant,
:
:
Plaintiff,
:
:
-v:
:
CAROLYN W. COLVIN, as Acting
:
Commissioner of Social Security,
:
:
Defendant.
:
:
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13 Civ. 412 (DLC)
OPINION AND ORDER
APPEARANCES
For the Plaintiff:
Michael D. Hampden
Partnership for Children’s Rights
271 Madison Avenue, 17th Floor
New York, NY 10016
For the Defendant:
Susan C. Branagan
United States Attorney for the Southern District of New York
86 Chambers Street, 3rd Floor
New York, NY 10007
DENISE COTE, District Judge:
Plaintiff T.G. brings this action on behalf of her son,
M.R.G., to obtain judicial review, pursuant to 42 U.S.C.
§ 405(g), of a final decision of the Commissioner of Social
1
Security (“Commissioner”) denying her application for
Supplemental Security Income (“SSI”) benefits under Title XVI of
the Social Security Act (“SSA”).
Plaintiff requests that this
matter be remanded, but with a qualification to limit the scope
of the remand to exclude a favorable factual determination made
the Administrative Law Judge (“ALJ”).
The Commissioner supports
the plaintiff’s request for a remand, but without any limitation
in scope.
For the following reasons, the case is remanded in
full.
BACKGROUND
The following discussion is based on the administrative
record.
M.R.G. is a male child born on June 10, 2006.
On
January 10, 2010, plaintiff filed an application for SSI
benefits on behalf of M.R.G. claiming that, as of November 2009,
his hyperactivity and speech impairment rendered him disabled.
On June 1, 2010, the application was denied.
Plaintiff
requested a hearing before an ALJ.
Plaintiff, M.R.G., and counsel were present for the
hearing, which lasted fourteen minutes, from 9:40 a.m. until
9:54 a.m. on July 12, 2011.
Plaintiff testified, describing
M.R.G.’s problems as “constantly moving, hitting teachers, the
other students, acting out, kicking and screaming, throwing
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tantrums, throwing his shoes, taking off clothes.”
In
describing how M.R.G. differed from other five-year old boys,
plaintiff stated that “he needs supervision with everything” and
that she cannot “have him do anything.”
In response to
questions from the ALJ, she confirmed that M.R.G. was in a
“structured school setting” and that he knew his alphabet and
letters.
She explained that he did not get along well with
other kids because “he likes to hit and . . . misbehave, he
doesn’t like to share, he grabs toys from the other children”
and so other children “are no longer allowed to come to the
house.”
When asked if M.R.G. was on any medication, plaintiff’s
counsel responded:
Attorney: There is no way though at this point.
Greenwich Hill is working him up for treatment.
ALJ: Oh.
Attorney: And he has already been through an
examination by a pediatric neurologist and now he has
to go to be examined by a pediatric psychiatrist and
unfortunately they are busy and the next appointment
is now July 18th. There is no way to know if he is
going to be on medication, at this point.
In response to questions from her counsel, plaintiff confirmed
that M.R.G. has been destructive in the house and that he cannot
go to the bathroom by himself.
Although M.R.G. was present, the
ALJ did not ask any questions of him, noting only at the end of
the hearing that “the child has been very restless during the
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hearing for sure.”
The evidentiary record before the ALJ -- which consisted of
many evaluations of M.R.G., both educational and medical -- was
lengthy and need not be addressed in detail.
While most, if not
all, of the evaluations recognized the existence of M.R.G.’s
hyperactivity, aggression, and language delays, there was not a
clear consensus on the degree to which they were limitations on
his functioning.
On August 11, 2011, the ALJ issued his decision, concluding
that M.R.G. was not disabled under the SSA.
The critical legal
issue in M.R.G.’s circumstances was whether he had a “marked” or
“extreme” limitation with respect to his functioning in six
domains: (1) acquiring and using information; (2) attending and
completing tasks; (3) interacting and relating with others; (4)
moving about and manipulating objects; (5) caring for yourself;
and (6) health and physical well-being.
§ 416.926a(b)(1)(i)-(vi).
20 C.F.R.
An individual is “disabled” under the
SSA if he has either an extreme limitation in any one domain or
a marked limitation in at least two domains. 1
1
The ALJ found that
SSA regulations define a “marked limitation” as follows:
(i) We will find that you have a “marked” limitation
in a domain when your impairment(s) interferes
seriously with your ability to independently initiate,
sustain, or complete activities. Your day-to-day
functioning may be seriously limited when your
impairment(s) limits only one activity or when the
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M.R.G. had a marked limitation with respect to the third domain
interactive and cumulative effects of your
impairment(s) limit several activities. “Marked”
limitation also means a limitation that is “more than
moderate” but “less than extreme.” It is the
equivalent of the functioning we would expect to find
on standardized testing with scores that are at least
two, but less than three, standard deviations below
the mean.
(ii) If you have not attained age 3, we will generally
find that you have a “marked” limitation if you are
functioning at a level that is more than one-half but
not more than two-thirds of your chronological age
when there are no standard scores from standardized
tests in your case record.
(iii) If you are a child of any age (birth to the
attainment of age 18), we will find that you have a
“marked” limitation when you have a valid score that
is two standard deviations or more below the mean, but
less than three standard deviations, on a
comprehensive standardized test designed to measure
ability or functioning in that domain, and your dayto-day functioning in domain-related activities is
consistent with that score. (See paragraph (e)(4) of
this section.)
(iv) For the sixth domain of functioning, “Health and
physical well-being,” we may also consider you to have
a “marked” limitation if you are frequently ill
because of your impairment(s) or have frequent
exacerbations of your impairment(s) that result in
significant, documented symptoms or signs. For
purposes of this domain, “frequent means that you have
episodes of illness or exacerbations that occur on an
average of 3 times a year, or once every 4 months,
each lasting 2 weeks or more. We may also find that
you have a “marked” limitation if you have episodes
that occur more often than 3 times in a year or once
every 4 months but do not last for 2 weeks, or occur
less often than an average of 3 times a year or once
every 4 months but last longer than 2 weeks, if the
overall effect (based on the length of the episode(s)
or its frequency) is equivalent in severity.
20 C.F.R. § 416.926a(e)(2).
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(interacting and relating with others) but a less-than-marked
limitation with respect to the first and second domains.
Only those findings relevant to this Opinion are summarized
here.
As to the first domain (acquiring and using information),
the ALJ noted M.R.G.’s behavioral difficulties, distractibility,
and short attention span, but concluded that there was no marked
limitation as follows:
However, he is doing well. He understands his
teacher. He is able to complete puzzles and identify
letters. His mother indicates that he knows his
alphabet and numbers. He can recite numbers, identify
most colors and shapes, and knows his age and
birthday.
(Citation omitted.)
As to the second domain (attending and
completing tasks), the ALJ noted M.R.G.’s lack of focus and need
for supervision but concluded that there was no marked
limitation as follows:
However, he is able to understand his teachers, and
complete puzzles. He can complete his homework, do
chores, play with toys, read, color and draw, and use
a computer. Dr. Depaola indicates that the claimant
appears to have a normal attention span for his age.
(Citation omitted.)
As to the third domain (interacting and
relating with others), the ALJ found as follows:
The claimant is able to communicate adequately. His
mother indicates that the claimant had problems
talking clearly only some of the time, and that his
speech is not understandable only some of the time.
The claimant has difficulty interacting with peers and
adults. Testing has shown average adaptive behavior
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skills and moderately low socialization skills. His
teacher indicates that he is getting better at
regulating his emotions. His mother indicates that he
shows affection towards other children and toward his
parents, shares toys, and plays games with others.
(Citation omitted.)
Thus the ALJ concluded that he had a marked
limitation with respect to this third domain.
The ALJ further
concluded, and it is not disputed here, that M.R.G. had no
limitation with respect to the remaining three domains.
Earlier in the opinion, the ALJ addressed the medical
evidence with respect to M.R.G.’s speech and language delays and
his hyperactivity.
With regard to the former, he found that
M.R.G. “has maintained the ability to communicate adequately.”
With regard to the latter, he found that M.R.G. “is able to
function adequately and control his aggression with assistance.”
Citing plaintiff’s testimony, the ALJ also “note[d] that
[M.R.G.] is not taking any medication for his ADHD.”
Finally,
the ALJ found that the plaintiff was not credible “to the extent
[her testimony was] inconsistent with the[se] finding[s].”
After the Appeals Council denied plaintiff’s request for
review on November 30, 2012, she filed this action on January
17, 2013.
On July 23, plaintiff filed a motion to remand, with
a request to limit the scope of the remand.
After multiple
extensions (some of which were granted by the Court upon being
advised that the Commissioner was considering supporting the
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remand), on December 12 the Commissioner filed a cross-motion to
remand, without any limit on the scope of the remand.
The
motions were fully submitted as of January 14, 2014.
DISCUSSION
In reviewing a decision of the Commissioner, a court may
“enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a
rehearing.”
42 U.S.C. § 405(g) (sentence four).
The Court may
set aside a determination of the ALJ only if it is not supported
by substantial evidence or if it is based on legal error.
Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
The petition for remand “rests on a claim of legal errors
by the ALJ -- a claim which precedes any assessment of
substantial evidence.” 2
The parties agree on at least three
types of legal errors that require remanding this matter,
These errors include, but are not limited to, the ALJ’s failure
to develop fully the record; the ALJ’s failure to explain how he
resolved inconsistencies in the record; the ALJ’s failure to
consider the effect of M.R.G.’s “structured setting” in
assessing evidence suggesting that his limitations were not
marked; the ALJ’s failure to set forth some of his findings in
sufficient detail to permit review for substantial evidence; and
the ALJ’s failure to provide sufficient specificity in support
of his adverse credibility finding with respect to the
plaintiff.
2
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although they each point to different ways in which the error
was committed.
First, the ALJ did not fulfill his independent
duty to develop the record.
See 20 C.F.R. § 416.912. 3
Second,
the ALJ failed to apply the correct legal standard in deciding
whether M.R.G. had a marked limitation in the first and second
domain. 4
Third, the ALJ failed to make sufficiently clear
factual findings, including with respect to resolving material
evidentiary conflicts, to permit review for substantial
evidence. 5
These reasons are sufficiently supported by the
record -- for example, an ALJ hearing lasting only fourteen
minutes and the failure to obtain the evaluations of the
pediatric specialists -- that, given both parties’ request for a
remand, remand in this case is appropriate.
See Lin v. U.S.
The Commissioner identifies specifically the ALJ’s failure to
follow-up and solicit the evaluations of the pediatric
neurologist and pediatric psychiatrist and the ALJ’s decision to
conduct a 14-minute hearing, during which he did not solicit
testimony from M.R.G. Plaintiff identifies the ALJ’s failure to
read comprehensively two medical tests, the combination of which
would have yielded a conclusion that M.R.G. tested two standard
deviations below average in his language capacity, thus
supporting a conclusion of a marked limitation.
3
The Commissioner points to the ALJ’s failure to discuss
language capability in the first domain, and plaintiff points to
the ALJ’s failure to consider the “structured setting” in both
the first and second domains.
4
The Commissioner acknowledges the conflicts in the evidence in
supporting a remand, rather than a reversal, of the ALJ’s
decision. Plaintiff points to the ALJ’s failure to discuss the
evidence supporting a finding of hyperactivity.
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5
Dep’t of Justice, 473 F.3d 48, 54-55 (2d Cir. 2007).
The only remaining issue is the scope of the remand.
Plaintiff contends that the marked limitation finding with
respect to the third domain (interacting and relating with
others) should be outside the scope of the remand, as she
contends that this finding was supported by substantial
evidence, and thus should be final and conclusive in the remand
proceedings.
The Commissioner opposes any such limitation on
the scope of the remand.
It is a well-established principle of administrative law
that this court may, in its discretion, choose to limit the
scope of a remand to a government agency.
See Braniff
Airways, 379 F.2d 453, 468 (D.C. Cir. 1967) (stating that “the
decision whether or not to limit the scope of the proceedings on
remand involves the sound discretion of the reviewing court”);
see also id. at n.11 (“We have frequently remanded agency cases
with specific directions and we have no reservations about our
statutory power to do so.” (citation omitted)).
In determining how to limit the scope of remand, “the
decision . . . is largely dictated by the type of error made by
the ALJ or Commissioner.”
(1st Cir. 2001).
Seavey v. Barnhart, 276 F.3d 1, 9
“[W]hat instructions should accompany a remand
order will turn on the nature of the error at the ALJ
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proceedings.”
Id. at 10; see also Sullivan v. Hudson, 490 U.S.
877, 885 (1989) (stating that “the district court’s remand order
will often include detailed instructions concerning the scope of
the remand, the evidence to be adduced, and the legal or factual
issues to be addressed”).
Applying this test, which turns on the nature of the ALJ’s
errors, no limitation should be placed on the remand.
The
parties agree that the ALJ failed to develop properly the
factual record.
This error is generally antecedent to any
determination of substantial evidence.
F.3d 108, 112-13 (2d Cir. 2009).
See Moran v. Astrue, 569
This is due, at least in part,
to the fact that a record that is not fully developed is flawed
and thus does not provide a reliable foundation for fact
finding.
Indeed, plaintiff herself argued that the ALJ’s legal
error “precedes any assessment of substantial evidence” and
“prevent[s] the reviewing court from determining whether the ALJ
decision was supported by substantial evidence.”
Put another
way, given the nature of the error here, the plaintiff must take
the bitter with the sweet.
Plaintiff cannot gain review of
unfavorable findings from a flawed proceeding and yet protect
favorable factual determinations from the same proceeding.
Because there is no assurance that any of the ALJ’s findings,
including the favorable finding under the third domain, was
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properly reached, a full remand is appropriate.
Moreover, as a practical matter, a full remand is prudent.
The record on remand will be expanded at least to include the
evidence that the Commissioner agrees was improperly excluded.
This includes the opinions of the pediatric neurologist and
pediatric psychiatrist, as well as the testimony of M.R.G.
Such
evidence would almost certainly bear on whether M.R.G. has a
limitation in the third domain (interacting and relating with
others).
See 20 C.F.R. § 416.926(a)(i) (listing the types of
issues to be considered in making a limitation determination
under the third domain).
Thus, it would be sensible to permit
the ALJ to consider the new evidence and decide, in the first
instance, whether it might warrant reconsidering the marked
limitation finding under the third domain.
The plaintiff makes essentially three arguments in
response, none of which is persuasive.
First, she contends that
the Commissioner agrees that the marked limitation finding is
supported by substantial evidence.
As support, she cites
principally the amended answer, filed on June 19, 2013, which
stated that all of the ALJ’s findings were supported by
substantial evidence.
This argument, however, ignores the history of this
litigation.
At the time that the amended answer was filed, the
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Commissioner maintained its ordinary position of opposing a
claimant’s petition for review.
Subsequently, after plaintiff
filed her motion for remand, the Commissioner decided to reverse
its position and join the request for a remand.
The
Commissioner is therefore not bound by averments made prior to
its revised position.
Second, plaintiff notes that, under the law of the case
doctrine, the ALJ would, in fact, be permitted to revisit the
marked limitation finding under the third domain if the evidence
on remand were substantially different.
What plaintiff seeks to
do in making this argument is to respond to the concern that the
ALJ should be able to consider the new evidence on remand and
decide whether to reconsider the prior finding by suggesting
that this concern can be accommodated under her preferred
approach.
Leaving aside whether this is an accurate statement of the
law of the case doctrine, this argument proves too much.
It
would suggest that a district court should always strictly limit
the scope of its remand.
As laid out above, the scope of a
remand turns on the nature of the ALJ’s errors, not the law of
the case doctrine.
Third, plaintiff suggests that permitting reconsideration
of the marked limitation finding would be unfair to M.R.G.
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To
the contrary, if this finding changes on remand, it would be
presumably because the more fully developed factual record
supports a change.
To the extent it does not, plaintiff has the
right to appeal to correct that error.
Accordingly, if the ALJ
were to revise the marked limitation finding on remand, that
outcome, while unfortunate for M.R.G., would not be unfair.
Rather, it would reflect the just administration of the law.
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CONCLUSION
The Commissioner’s December 12, 2013 cross-motion for a
remand is granted.
Plaintiff’s July 23, 2013 motion for a
remand with a limitation is granted in part.
The case is
remanded to the Commissioner pursuant to sentence four of 42
U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion.
This judgment disposes of the
action.
See Sullivan v. Finkelstein, 496 U.S. 617, 624–25
(1990).
The Clerk of Court shall close the case.
SO ORDERED:
Dated:
New York, New York
March 31, 2014
__________________________________
DENISE COTE
United States District Judge
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