Hardy v. Astrue

Filing 15

DECISION AND ORDER DENYING Defendant's 6 Motion for Judgment on the Pleadings; GRANTING Plaintiff's 8 Motion for Judgment on the Pleadings; REMANDING this case to the Commissioner of Social Security for proceedings consistent with this Decision and Order; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny on 2/25/2013. (CLERK TO FOLLOW UP) (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EVONE L. HARDY
Plaintiff,
v.

DECISION AND ORDER
12-CV-112S

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

1.

Plaintiff, Evone Hardy, challenges an Administrative Law Judge’s (“ALJ”)

determination that she is not disabled within the meaning of the Social Security Act (“the
Act”). Hardy, whose father received disability insurance benefits, alleges that she has been
disabled since before she reached the age of 22, specifically February 1, 1969. She
alleges that mental retardation1 and the effects of a gunshot wound in her knee render her
unable to work. She therefore asserts that she is entitled to childhood disability benefits
under the Act. See 20 C.F.R. § 404.350 (under certain circumstances applicants “are
entitled to child's benefits on the earnings record of an insured person who is entitled to
old-age or disability benefits or who has died”).
2.

Hardy, who already receives supplemental security insurance (“SSI”)

benefits, filed an application for childhood disability benefits under Title II of the Act on
September 5, 2008. The Commissioner of Social Security (“Commissioner”) denied her

1

The Social Security Administration (“SSA”) regulations still speak of “mental retardation.” See 20
C.F.R. Pt. 404. “However, because the term is ‘offensive to many persons,’ the SSA is transitioning to
using the term ‘intellectual disability’ to represent the same concept.” Talavera v. Astrue, 697 F.3d 145,
148 n.2 (2d Cir. 2012).

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application, and as result, she requested an administrative hearing. She received that
hearing before ALJ Timothy M. McGuan on January 27, 2011. The ALJ considered the
case de novo, and on April 6, 2011, he issued a decision denying Hardy’s application for
benefits. Hardy filed a request for review with the Appeals Council, but the Council denied
that request, prompting her to file the current civil action on February 8, 2012, challenging
Defendant’s final decision.2
3.

On July 16, 2012, the Commissioner and Hardy both filed motions for

judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
Briefing on the motions concluded August 27, 2012, at which time this Court took them
under advisement without oral argument.

For the reasons set forth below, the

Commissioner’s motion is denied and Hardy’s motion is granted.
4.

A court reviewing a denial of disability benefits may not determine de novo

whether an individual is disabled. See 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 it is not supported by substantial evidence or there
has been a legal error. See 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 that which amounts to
“more than a mere scintilla”; it 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, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where
evidence is deemed susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60,
62 (2d Cir. 1982).

2

The ALJ’s April 6, 2011 decision became the Commissioner’s final decision in this case when the
Appeals Council denied Plaintiff’s request for review.

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5.

“To determine on appeal whether the ALJ's findings are supported by

substantial evidence, a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the substantiality of the evidence must
also include that which detracts from its weight.” Williams on Behalf of 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).
6.

The Commissioner has established a five-step sequential evaluation process

to determine whether an individual is disabled as defined under the Social Security Act.
See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the
validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291,
96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a
claimant is disabled.
7.

This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe impairment" which significantly
limits his physical or mental ability to do basic work activities. If the claimant
suffers such an impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled without considering vocational
factors such as age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a "listed" impairment is unable
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to perform substantial gainful activity. Assuming the claimant does not have
a listed impairment, the fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520. The claimant has the
burden of proof as to the first four steps, but the Commissioner has the burden of proof on
the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d
582, 584 (2d Cir. 1984).
8.

To qualify for childhood disability benefits, the claimant must demonstrate

that she “was under a disability (as defined in section 423(d) of this title) which began
before [s]he attained the age of 22.” 42 U.S.C. § 402((d)(1)(B) (parenthesis in original).
9.

Here, the ALJ found that while Hardy has not engaged in substantial gainful

activity since her alleged onset date, February 1, 1969, she is not entitled to benefits
because “there were no medical signs or laboratory findings to substantiate the existence
of a medically determinable impairment” before she reached the age of 22. (R. 20.)3
Finding no disability, ALJ McGuan did not reach the remaining steps in the evaluation
process.
10.

Hardy argues, inter alia, that the ALJ erred by failing to develop the record.

Indeed, “[e]ven when a claimant is represented by counsel, it is the well-established rule
in our circuit ‘that the social security ALJ, unlike a judge in a trial, must on behalf of all
claimants affirmatively develop the record in light of the essentially non-adversarial nature

3

Citations to the underlying administrative record are designated “R.”

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of a benefits proceeding.’” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting
Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508–09 (2d Cir. 2009)). That duty extends
to “[d]ecisions by any governmental or nongovernmental agency about whether [the
claimant is] disabled.” 20 C.F.R. § 404.1512. Here, there is no dispute that at the time of
the hearing Hardy had been receiving SSI benefits for approximately three years. (R. 31.)
Yet, despite the Social Security Administration’s previous determination that she suffered
from a disability that prevented her from working, nothing on the record indicates that the
ALJ attempted to obtain Hardy’s SSI records. These records are of particular importance
here because this Court agrees with the ALJ that there is a serious lack of evidence
substantiating her current disability claim. The previous claim file might shed light on the
SSI determination and provide evidence tending to show that Hardy is entitled to disability
benefits. ALJ McGuan recognized the apparent disparity between the lack evidence
supporting Hardy’s claim and the SSA’s decision to award benefits. At the hearing he
confronted Hardy’s representative, “I don’t know how she got SSI without any medical
evidence. That’s beyond me.” (R. 32.) But he apparently took no action to resolve this
conflict.
The confusion is not rectified by the Commissioner in his motion before this Court.
The Commissioner does not, for example, contend that the ALJ in fact sought these
records, or that the ALJ was privy to them when he made his decision. Nor does the
Commissioner argue that the SSI records do not contain medical evidence. Instead, the
Commissioner responds only by arguing that the November 15, 2007 SSI determination
is not relevant because the disability onset date for those benefits was August 1, 2007,
which, considering Hardy’s current age, is 18 years after the relevant time period in this

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case. It is true that Hardy must demonstrate the existence of a disability before the age of
22. But Hardy primarily bases her disability claim on a gunshot wound, which she suffered
at the age of two, and mental retardation, which remains fairly constant throughout one’s
life. See Talavera v. Astrue, 697 F.3d 145, 152 (2d Cir. 2012) (adopting standard that
“presum[es] relative stability in a claimant's cognitive functioning over time”). In fact, it
appears from her testimony that she believes she was awarded SSI benefits because of
complications from the gunshot wound. (R. 35.) The later onset date, therefore, does not
necessarily foreclose the possibility that the SSI file could contain probative evidence of
a disability from earlier in her life.
11.

This Court is aware that several potential sources of information were

explored – including Buffalo General Hospital, Children's Hospital of Buffalo, Erie County
Medical Center, the Buffalo Board of Education, and Sisters of Charity Hospital – and that
no relevant information was uncovered. It is also aware that ALJ McGuan provided Hardy
and her counsel three extra weeks to supplement the record after the hearing. But despite
these laudable efforts, there remains doubt about what, if any, information the old claim
file contains. As then-District Judge Sotomayor wrote while addressing the same issue,
“Until there has been an attempt to obtain these records, neither the ALJ nor the Court will
ever know if plaintiff's complaint can be better documented.” Mann v. Chater, No. 95 CIV.
2997 (SS)), 1997 WL 363592, at *8 (S.D.N.Y. June 30, 1997). Remand, therefore, is
appropriate because filing this gap in the record would “help to assure the proper
disposition of [Hardy’s] claim.” Kirkland v. Astrue, No. 06 CV 4861, 2008 WL 267429, at
*8 (E.D.N.Y. Jan. 29, 2008).
12.

On remand, if it has not already, the SSA shall seek out Hardy’s prior claim

file to determine whether it contains any probative evidence.

6

IT HEREBY IS ORDERED, that Defendant’s Motion for Judgment on the Pleadings
(Docket No. 6) is DENIED.
FURTHER, that Plaintiff’s Motion for Judgment on the Pleadings (Docket No. 8) is
GRANTED.
FURTHER, that this case is remanded to the Commissioner of Social Security for
proceedings consistent with this Decision and Order.
FURTHER, that the Clerk of the Court shall close this case.
SO ORDERED.
Dated: February 25, 2013
Buffalo, New York
/s/Wiliam M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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