Candelaria v. Commissioner of Social Security

Filing 22

ORDER granting in part and denying in part 11 Motion for Judgment on the Pleadings and denying 19 Motion for Judgment on the Pleadings. The decision of the Commissioner is vacated, and the matter is remanded for further administrative proceedings consistent with this decision. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/30/2019. (AMD)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LILLIAN IVETTER CANDELARIA o/b/o
J.L.G.L.,
Plaintiff,
18-CV-557
Decision and Order

v.
ANDREW SAUL, Commissioner of Social
Security,
Defendant.

On May 16, 2018, the plaintiff, Lillian Candelaria, brought this action under the
Social Security Act ("the Act") on behalf of the claimant, J.L.G.L., a minor child under 18
years of age. She seeks review of the determination by the Commissioner of Social
Security ("Commissioner") that J.L.G.L. was not disabled. Docket Item 1. On January
25, 2019, Candelaria moved for judgment on the pleadings, Docket Item 11; on May 29,
2019, the Commissioner responded and cross-moved for judgment on the pleadings,
Docket Item 19; and on June 19, 2019, Candelaria replied, Docket Item 20.
For the reasons stated below, this Court grants Candelaria’s motion in part and
denies the Commissioner’s cross-motion.

BACKGROUND
I.

PROCEDURAL HISTORY
On February 24, 2015, Candelaria applied for Children’s Supplemental Security

Income benefits on behalf of J.L.G.L. Docket Item 8 at 21. She claimed that J.L.G.L.
had been disabled since April 1, 2014, due to a learning disability. Id. at 8, 361.
On June 3, 2015, Candelaria received notice that her application was denied
because J.L.G.L. was not disabled under the Act. Id. at 8. She requested a hearing
before an administrative law judge ("ALJ"), which was scheduled for June 23, 2017, but
adjourned so Candelaria could obtain representation. Id. at 207. A second hearing, at
which her counsel appeared, was held on August 25, 2017. Id. at 216. The ALJ then
issued a decision on October 4, 2017, confirming the finding that J.L.G.L. was not
disabled. Id. at 34. Candelaria appealed the ALJ’s decision, but her appeal was
denied, and the decision then became final. Id. at 6.
A.

CHILDREN’S DISABILITY STANDARD

A child under 18 is disabled under section 1614(a)(3)(C)(i) of the Social Security
Act 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.” In denying Candelaria’s application, the ALJ evaluated her claim
under the Social Security Administration’s three-step evaluation process to determine
whether an individual under the age of 18 is disabled. See 20 C.F.R. § 416.924(a).
At the first step, the ALJ must determine whether the claimant is currently
engaged in substantial gainful activity (“SGA”), not surprisingly defined as work activity
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that is both substantial and gainful. Id. § 416.972. “Substantial work activity” involves
significant physical or mental activities. Id. § 416.972(a). “Gainful work activity” is work
usually done for pay or profit, whether or not profit is realized. Id. § 416.972(b). If the
claimant is engaged in SGA, the claimant is not disabled regardless of medical
condition, age, education, or work experience. Id. at § 416.924(b). If the claimant is not
engaged in SGA, the ALJ proceeds to the next step. Id.
At step two, the ALJ must determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is “severe.” Id. at
§ 416.924(a). For a claimant under the age of 18, an impairment is not severe if it is a
slight abnormality or a combination of such abnormalities that causes no more than
minimal functional limitations. Id. § 416.924(c). If the claimant has a severe
impairment, the ALJ proceeds to the third step. Id. § 416.924(a).
At step three, the ALJ must determine whether the impairment or combination of
impairments meet, medically equal, or functionally equal an impairment in the listings.
Id. § 416.924(d). If the claimant has an impairment or combination of impairments that
meet, medically equal, or functionally equal the severity of one in the listings, and if
such impairments have lasted or are expected to last for a continuous period of at least
12 months, then the claimant is disabled. Id. § 416.924(d). If not, then the claimant is
not disabled. Id.
To determine whether impairments functionally equal one in the listings, the ALJ
assesses the claimant’s functioning in six separate “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

3

physical well-being. Id. § 416.926a(b)(1). That assessment compares how the child
performs in each of these domains with the typical functioning of a child of the same
age without impairment. Id. § 416.926a(b). The child’s impairment is of listing-level
severity if there are “marked” limitations in at least two domains or an “extreme”
limitation in one domain. Id. § 416.926a(d). In determining whether impairments are
“marked” or “extreme,” the ALJ considers functional limitations that result from all
impairments, including impairments that have been deemed not severe, and their
cumulative effects. Id. §§ 416.923, 416.924a(b)(4), 416.926a(a), (c), and (e)(1)(i).
A “marked” limitation results when impairments “seriously interfere with [the
child’s] ability to independently initiate, sustain, or complete activities.” Id.
§ 416.926a(e)(2)(i). A “marked” limitation is “more than moderate” but “less than
extreme.” Id. On a standardized test designed to measure abilities within a certain
domain, a “marked limitation” means a score of at least two, but less than three,
standard deviations below the mean and a level of day-to-day functioning consistent
with that score. Id. § 416.926a(e)(2)(i), § 416.926a(e)(2)(iii). For example, in the
domain of “health and well-being,” a child is considered to have a “marked” limitation if
he or she is frequently ill as a result of his or her impairments or exhibits frequent
worsening of symptoms resulting in medically-documented exacerbations. Id.
§ 416.926a(e)(2)(iv). “Frequent” means episodes that occur on average every four
months and last two weeks or more, or that occur more often than three times a year

4

but last less than two weeks, or that occur less often but are of overall equivalent
severity. Id.
An “extreme” limitation, on the other hand, results when impairments “interfere[ ]
very seriously with [the child’s] ability to independently initiate, sustain, or complete
activities.” Id. § 416.926a(e)(3)(i). An “extreme” limitation is one that is “more than
marked.” Id. The ALJ will determine a limitation to be “extreme” when a comprehensive
standardized test designed to measure functioning in a particular domain results in a
score of three or more standard deviations below the mean and day-to-day functioning
consistent with that score. Id. § 416.926a(e)(3)(iii). In the domain of “health and wellbeing,” for example, the ALJ will consider a child to have an “extreme” limitation if the
child is frequently ill or if impairments frequently become exacerbated, resulting in
medically documented symptoms significantly more than those of a “marked” limitation.
Id. § 416.926a(e)(3)(iv).
II.

THE HEARINGS
Candelaria first appeared before the ALJ on June 23, 2017, but before the

hearing actually began she asked “to get . . . representation.” Id. at 206-07. The ALJ
said that she “probably should’ve gotten somebody by now” but that she “get[s] one free
bite at that apple.” Id. at 207. So the ALJ postponed the hearing and warned
Candelaria that “the next time that we schedule you will have [] already had your free
bite and we’ll go forward with the case . . . whether or not you have a representative.”
Id.
On August 25, 2017, Candelaria appeared with her attorney. When that hearing
began, Candelaria’s attorney informed the ALJ that they were “still waiting on some
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medical evidence which was recently requested.” Id. at 217. He explained that he had
not informed the ALJ about that earlier because he was only “recently retained by this
client and [was] just trying to make the record whole.” Id. Referring to 20 C.F.R.
§ 416.1435, the ALJ responded that “since that doesn’t fit in any of the exceptions,
whatever comes in [later] will not be considered for this case.” Id.
In his written decision, the ALJ tried to justify his decision to exclude the
evidence. He noted that a claimant “must submit[] or inform the Administrative Law
Judge about the evidence no later than five business days before the date of the
scheduled hearing.” Id. at 21. Under 20 C.F.R. § 416.1435(b), if a claimant misses that
deadline but submits or informs the ALJ about written evidence before the hearing
decision is issued, the ALJ will accept the evidence if one of the enumerated exceptions
is met. Here, the ALJ “decline[d] to admit this [late] evidence because the requirements
of 20 CFR § 416.1435(b) are not met” even though “[t]he claimant’s representative
stated that his firm had been recently retained by the claimant and had requested the
evidence to make the record whole.” Id. at 21-22.
III.

THE ALJ’S DECISION
The ALJ determined that J.L.G.L. was born on May 31, 2006, and therefore was

school-aged when the application was filed on February 24, 2015. Docket Item 8 at 24.
At step one, the ALJ found that J.L.G.L. had not engaged in substantial gainful activity
since the application date. Id. at 25. At step two, the ALJ found that J.L.G.L. suffered
from two severe impairments: “learning disorder and speech and language disorder.”
Id. Although the ALJ found these impairments to be severe, at step three he
determined that J.L.G.L. did not have an impairment or combination of impairments that
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met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.
The ALJ considered J.L.G.L.’s speech and language disorder and found that it
did not meet any of the listings under 102.00 (special senses and speech). Docket Item
8 at 25. The ALJ also considered Listing 112.11 (neurodevelopmental disorders) and
determined that J.L.G.L. did not meet that listing because he did not have an extreme
limitation in one, or a marked limitation in two, of the following areas of mental
functioning: “(1) understand, remember, or apply information; (2) interact with others; (3)
concentrate, persist, or maintain pace; or (4) adapt or manage oneself.” Id.
As required by 20 C.F.R. § 416.924a(a) and SSR 09-2p, the ALJ considered all
relevant evidence in the case record—including objective medical evidence, J.L.G.L.’s
statements, and information from other sources such as J.L.G.L.’s teachers and family
members—in reaching his determination. Docket Item 8 at 25. The ALJ also explicitly
considered the “whole child,” as required by 20 C.F.R. § 416.924a(b) and (c) and
explained in SSR 09-1p. Docket Item 8 at 25. In doing so, the ALJ evaluated J.L.G.L.’s
abilities compared to other children his age without impairments, as well as the
interactive and cumulative effects of all J.L.G.L.’s impairments, severe or otherwise. Id.
Finally, the ALJ considered “the type, extent, and frequency of help the claimant needs
to function.” Id.
In addressing J.L.G.L.’s symptoms, the ALJ followed a two-step process to
evaluate whether (1) there is an underlying medically determinable physical or mental
impairment that could be expected to produce his symptoms and (2) the intensity,
persistence, and limiting effects of his symptoms, and the extent to which they interfere

7

with his functioning. Docket Item 8 at 25. As part of his analysis, the ALJ addressed
J.L.G.L.’s abilities in each of the six domains and found a marked limitation in the
domain of acquiring and using information, less-than-marked limitations in the domains
of attending and completing tasks and interacting and relating with others, and no
limitations in the domains of moving about and manipulating objects, caring for yourself,
and health and physical well-being. Id. at 28-33.
STANDARD OF REVIEW
“The scope of review of a disability determination . . . involves two levels of
inquiry.” Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The court “must first
decide whether [the Commissioner] applied the correct legal principles in making the
determination.” Id. This includes ensuring “that the claimant has had a full hearing
under the . . . regulations and in accordance with the beneficent purposes of the Social
Security Act.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz v.
Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)). Then, the court “decide[s] whether the
determination is supported by ‘substantial evidence.’” Johnson, 817 F.2d at 985
(quoting 42 U.S.C. § 405(g)). “Substantial evidence” means “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “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 correct legal principles.” Johnson, 817 F.2d at 986.
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DISCUSSION
I.

ALLEGATIONS
Candelaria objects to the ALJ’s failure to develop the record and his rejection of

evidence about which he was not informed before the hearing. Docket Item 11-1 at 11.
She specifically argues that the ALJ erred by rejecting evidence that might have shown
that J.L.G.L. met a listed impairment. Id. at 16. And she also argues that the ALJ erred
in finding that J.L.G.L.’s arteriovenous malformation was not a severe impairment
because it did not persist for twelve months. Id. at 17.
II.

ANALYSIS
Under 20 C.F.R. § 416.1435(a), the claimant must “inform [the Commissioner]

about or submit any written evidence” of disability “no later than 5 business days before
the date of the scheduled hearing.” Id. (emphasis added). If the claimant does not
comply with this five-day rule, the ALJ “may decline to consider or obtain the evidence”
unless certain circumstances apply.1 20 C.F.R. § 416.1435(a)-(b). One of those

1

The full text of 20 C.F.R. § 416.1435(a)-(b) is

(a) When you submit your request for hearing, you should also submit information
or evidence as required by § 416.912 or any summary of the evidence to the
administrative law judge. Each party must make every effort to ensure that the
administrative law judge receives all of the evidence and must inform us about
or submit any written evidence, as required in § 416.912, no later than 5
business days before the date of the scheduled hearing. If you do not comply
with this requirement, the administrative law judge may decline to consider or
obtain the evidence unless the circumstances described in paragraph (b) of this
section apply.
(b) If you have evidence required under § 416.912 but you have missed the
deadline described in paragraph (a) of this section, the administrative law judge
will accept the evidence if he or she has not yet issued a decision and you did not
inform us about or submit the evidence before the deadline because:
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circumstances is when some “unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting the evidence
earlier,” such as when the claimant “actively and diligently sought evidence from a
source and the evidence was not received or was received less than 5 business days
prior to the hearing.” 20 C.F.R. § 416.1435(b)(3)(iv).
Here, Candelaria retained counsel less than a month before her rescheduled
hearing. See Docket Item 8 at 290. As her attorney explained at the hearing, he
requested the medical evidence at issue between the time he was retained and the
hearing date. Id. at 217. By promptly requesting necessary records, counsel acted
“actively and diligently” within the meaning of 20 C.F.R. § 416.1435(b)(3)(iv). Indeed, it
is difficult to imagine what else he could have done short of telling the ALJ about the
issue and requesting an adjournment that the ALJ had announced would not be given.
Docket Item 8 at 207 (“the next time that we schedule . . . we’ll go forward with the case
. . . whether or not you have a representative.”).

(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that
prevented you from informing us about or submitting the evidence earlier;
or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond
your control prevented you from informing us about or submitting the
evidence earlier. Examples include, but are not limited to:
(i) You were seriously ill, and your illness prevented you from contacting
us in person, in writing, or through a friend, relative, or other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause; or
(iv) You actively and diligently sought evidence from a source and the
evidence was not received or was received less than 5 business days
prior to the hearing.
10

“[T]he Social Security Act [is] ‘a remedial statute, to be broadly construed and
liberally applied.’” Acierno v. Barnhart, 475 F.3d 77, 81 (2d Cir. 2007) (quoting
Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)). In fact, in the Social Security
Administration’s review of comments on the proposed rule later codified at 20 C.F.R.
§ 416.1435, it addressed the issue of incompetent counsel by noting that “[i]f a new
representative can show that a prior representative did not adequately uphold his or her
duty to the claimant, we expect that our adjudicators would find that this would warrant
an exception to the 5-day requirement.” Ensuring Program Uniformity at the Hearing
and Appeals Council Levels of the Administrative Review Process, 81 Fed. Reg.
90,987-01 (Dec. 16, 2016). Surely the same should be true when a claimant proceeds
pro se and then retains counsel. See id. (“The fact that a claimant is homeless or lacks
representation . . . may result in circumstances that warrant an exception to the 5-day
requirement.”). Because Candelaria retained counsel only weeks before her scheduled
hearing, her attorney’s prompt request for records justified an exception to the fivebusiness-day rule. 20 C.F.R. § 416.1435(b)(3).
What is more, the regulation at issue provides that the ALJ “may decline to
consider” late evidence, 20 C.F.R. § 416.1435(a) (emphasis added), giving the ALJ
some discretion in this regard. When a claimant is unrepresented but retains counsel
shortly before the hearing, and when counsel promptly requests relevant records, it is
an abuse of that discretion to refuse to consider those records. Cf. United States v.
Burkhalter, 735 F.2d 1327 (11th Cir. 1984) (holding that “order excluding evidence” that

11

prosecutors learned of only on the eve of trial “constitutes an abuse of discretion”). And
that is especially so given the beneficent purposes of the Act.2
Finally, even if all that were not true, the ALJ still would have erred in refusing to
consider the records at issue. An ALJ has an “affirmative duty to develop the
administrative record.” Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). Indeed,
“where there are deficiencies in the record, an ALJ is under an affirmative obligation to
develop a claimant’s medical history ‘even when the claimant is represented by counsel
or by a paralegal.’” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (quoting Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996)). In light of that duty, an ALJ’s conclusion that an
impairment is not expected to last twelve months—based on the absence of evidence
when he chose to exclude further evidence of that impairment—is not supported by
substantial evidence. See Gladle v. Colvin, 2013 WL 5503687, at *6-7 (N.D.N.Y. Sept.
30, 2013) (“Claimant’s failure to produce evidence of the duration of his impairment is
not a sufficient basis for denying his claim in the absence of evidence that attempts to
further develop the record would be or had been futile.”).
Here, the ALJ found that the medical evidence before him was insufficient to
“indicate that [the claimant’s aneurysm] is expected to last more than 12 months” and

2

If Candelaria or her counsel had informed the ALJ of the evidence five business
days before the hearing, the ALJ would have been required to consider it. See Drogo v.
Comm’r of Soc. Sec., 2019 WL 2569599, at *4 (W.D.N.Y. June 21, 2019). Candelaria
argues that did not happen here because of a “clerical error” owing to the fact that “the
case was so new” to her attorney’s office. Under these circumstances, that error was
excusable. Cf. Howe v. Colvin, 147 F. Supp. 3d 5, 7-8 (D. R.I. 2015) (holding that
evaluating a disability claim without “a highly relevant document . . . would violate the
tenants [sic] of the Social Security Act, raise form over substance, and be an abuse of
discretion” because “an innocent clerical error like this is an ‘unusual or unexpected’
circumstance beyond Ms. Howe’s control as contemplated in the regulation”). And that
is still another reason why the refusal to consider the evidence here requires remand.
12

that the aneurysm therefore was nonsevere. Docket Item 8 at 25. But a treatment note,
to which the ALJ referred in his decision, indicated the claimant’s “[h]istory of
[arteriovenous] malformation,” id. at 685, and that “the claimant was scheduled for an
embolization procedure in early August 2017,” id. at 25. The results of that test, id. at
110, were among the evidence the ALJ excluded. In other words, evidence in the
record indicated that there was other evidence that might be relevant to the ALJ’s
conclusion. In light of that reference in the record, and given the ALJ’s duty to develop
the record, the ALJ erred in refusing to consider the evidence that the attorney had
requested but not yet received by the hearing date.
Other evidence that the ALJ excluded also may have demonstrated that J.L.G.L.
was disabled. For example, the ALJ excluded evidence that J.L.G.L. had a full-scale IQ
score of 70. Id. at 169. With such a score, J.L.G.L. met the first prong of Listing
112.05(B)—and may well have met the second prong, too—but the ALJ did not even
consider that listing. Id. at 25.3

3

The full text of Listing 112.05 is:

112.05 Intellectual disorder (see 112.00B4), for children age 3 to attainment of age 18,
satisfied by A or B:
A. Satisfied by 1 and 2 (see 112.00H):
1. Significantly subaverage general intellectual functioning evident in your
cognitive inability to function at a level required to participate in
standardized testing of intellectual functioning; and
2. Significant deficits in adaptive functioning currently manifested by your
dependence upon others for personal needs (for example, toileting,
eating, dressing, or bathing) in excess of age-appropriate dependence.
OR
B. Satisfied by 1 and 2 (see 112.00H):
1. Significantly subaverage general intellectual functioning evidenced by a
or b:
a. A full scale (or comparable) IQ score of 70 or below on an
individually administered standardized test of general intelligence;
or
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The ALJ relied on the lack of evidence before him to conclude that J.L.G.L. was
not disabled, see Docket Item 8 at 25, but evidence before him pointed to other relevant
evidence that might contradict that finding. The ALJ therefore abused his discretion by
not developing the record, as well as by excluding evidence under the five-business-day
rule. Therefore, this case is remanded for the ALJ to consider J.L.G.L.’s claim in light of
all the relevant evidence.
CONCLUSION
For the reasons stated above, the Commissioner's motion for judgment on the
pleadings, Docket Item 19, is DENIED, and Candelaria’s motion for judgment on the
pleadings, Docket Item 11, is GRANTED in part and DENIED in part. The decision of
the Commissioner is VACATED, and the matter is REMANDED for further
administrative proceedings consistent with this decision.
SO ORDERED.
Dated:

August 30, 2019
Buffalo, New York
s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
b. A full scale (or comparable) IQ score of 71–75 accompanied by a
verbal or performance IQ score (or comparable part score) of 70 or
below on an individually administered standardized test of general
intelligence; and
2. Significant deficits in adaptive functioning currently manifested by
extreme limitation of one, or marked limitation of two, of the following
areas of mental functioning:
a. Understand, remember, or apply information (see 112.00E1); or
b. Interact with others (see 112.00E2); or
c. Concentrate, persist, or maintain pace (see 112.00E3); or
d. Adapt or manage oneself (see 112.00E4).

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