Saldi v. Commissioner of Social Security
Filing
25
OPINION AND ORDER: The Court GRANTS in part Plaintiff's 10 MOTION for Order Reversing the Decision of the Commissioner and DENIES Defendant's 16 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 1/4/2019. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Jenifer S. o/b/o Ronald S. (deceased),
Plaintiff,
v.
Civil Action No. 2:18–cv–13–jmc
Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 10, 16)
Plaintiff Jenifer S. brings this action on behalf of Ronald S., deceased,
pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and
remand of the decision of the Commissioner of Social Security denying Ronald S.’s
application for Disability Insurance Benefits (DIB).1 Pending before the Court are
Plaintiff’s motion to reverse the Commissioner’s decision (Doc. 10), and the
Commissioner’s motion to affirm the same (Doc. 16). Plaintiff has filed a Reply
(Doc. 22), and the Commissioner has filed a Sur-Reply (Doc. 24). For the reasons
stated below, Plaintiff’s motion is GRANTED, in part; the Commissioner’s motion is
DENIED; and the matter is REMANDED for further proceedings and a new
decision.
For ease of reference, the Court refers to both Ronald S. and Jennifer S. as “Plaintiff,” even
though Ronald is deceased and Jenifer has taken over the claim on his behalf. (See Doc. 10-1 at 7,
¶ 36.)
1
Background
Plaintiff was 50 years old on his amended alleged disability onset date of
November 13, 2015. He died on November 27, 2017, while his disability application
was pending. (Doc. 10-1 at 7, ¶ 36; see AR 8, 9 (indicting Plaintiff was diagnosed in
November 2016 with Acute Lymphoblastic Leukemia, which is not an impairment at
issue in this litigation).) He completed high school, and worked as a farmhand, a
mail clerk, and a sales trainee. He was married and had six children, ranging in
ages from seven to thirty as of April 2015, two of them living with him and his wife
during the relevant period. (AR 140, 521, 589.)
Plaintiff was incarcerated from March 2009 through July 2014. (AR 144, 325,
523.) Nonetheless, his earnings record showed self-employment in the years 2011,
2012, and 2013, and his receipt of almost $300,000 in income during that time for
his work with A&S Collection, his father’s debt collection company. (AR 144–46.) At
the administrative hearing, Plaintiff explained that this money was paid to him
while he was incarcerated “so [his] wife and children had [a] means of surviving.”
(AR 144.) He further explained that, even before he was incarcerated, when he was
actually working at his father’s company (from 2001 to 2009), although his job title
was “manager,” he “really didn’t do a whole lot” there. (AR 145.) He explained that
his father owned the company, and when his mother was diagnosed with cancer, his
father asked him to help with the business, so Plaintiff took on the “manager”
position (id.); but he wasn’t really a manager, he just “kind of mingled around a lot,”
working in the mailroom, signing papers, and “every now and then [he] might make
a phone call” (AR 146).
2
Plaintiff’s last job was as a trainee at Daedalus Solar Works, a solar paneling
company, where Plaintiff worked from April to November 2015. (AR 141, 162, 381.)
His job duties included riding around with a salesman who sought to sell solar
panels to residential and commercial buyers. (AR 142–44.) Plaintiff was supposed
to receive training for the job but he stated that “never happened” and he did not
make any sales. (AR 143.) Plaintiff left work at Daedalus in November 2015
because of a scheduled operation on his foot. (AR 141–42.) He did not return to
work after the operation because of “problems [he had] with the operation.”
(AR 142.)
Plaintiff’s most significant impairments were psychiatric: posttraumatic
stress disorder (PTSD), depression, and paranoid personality disorder, which
allegedly resulted in Plaintiff not being able to respond appropriately and being
unpredictable in the workplace. (AR 137–38.) Plaintiff testified at the
administrative hearing that he had a “very hard time being around anybody” and he
had “panic attacks” and anxiety, which caused him to feel angry and then to “shut
down” for anywhere from two days to three or four weeks. (AR 150.) Plaintiff
explained that, during and after his incarceration, he was unable to trust anyone
and was fearful that someone might come up behind him and try to harm or kill
him. (AR 160–61.) Noting that he was not taking any medications to address these
mental impairments because he had tried “a couple” and “the effects weren’t good,”
Plaintiff stated that he saw a therapist weekly for “well over a year” and then
switched to “every three to four weeks.” (AR 151.)
3
Plaintiff also suffered from physical impairments, including problems with his
right foot, requiring surgery; arthritis; back and neck pain; and a pinched nerve in
his neck causing tingling and numbness in his right finger and thumb and difficulty
grasping objects. (AR 138–39, 152–54, 165–66.)
On a typical day during the alleged disability period, Plaintiff would drink
coffee, throw a load of laundry in the washing machine, try to watch a little TV, sit
on the porch, pick up his youngest two children at school, and bring his children to
soccer in the evenings. (AR 158–59.) He also mowed the lawn on occasion, prepared
one or two meals each week, and attended church on Sundays. (AR 365, 367.) When
he watched his children’s soccer games, he would sit far away from everyone else,
sometimes even staying in his truck in an attempt to avoid people. (AR 159–60.)
In December 2014, Plaintiff filed an application for disability insurance
benefits, claiming disability starting on September 2, 2009. (AR 279.) Plaintiff later
amended his disability onset date to November 13, 2015, the date he left work at
Daedalus Solar Works due to foot problems. (AR 136–37, 293.) In his application,
Plaintiff alleged that he was unable to work due to back injuries including floating
vertebrae and two herniated discs; pinched nerves in his hip, neck, and shoulder;
tennis elbow; tendinitis in his knee and ankle; and rheumatoid arthritis. (AR 179.)
In a July 2015 Function Report, Plaintiff added that his severe PTSD also prevented
him from working. (AR 363.) And a few months later, in September 2015, Plaintiff
amended his application to include allegations that he was unable to work due to
PTSD and depression, claiming that these impairments had “escalated since [his]
4
last contact with [the Social Security Administration].” (AR 375.) Plaintiff also
noted at that time that he was scheduled to have foot surgery and knee surgery in
the near future, and that he had recently had a four-day hospital stay for his severe
pancreatitis. (Id.)
Plaintiff’s application was denied initially and upon reconsideration, and he
timely requested an administrative hearing. On October 4, 2016, Administrative
Law Judge (ALJ) Joshua Menard conducted a hearing on the application. (AR
131–74.) Plaintiff appeared and testified, and was represented by counsel. A
vocational expert (VE) also testified at the hearing. On February 13, 2017, the ALJ
issued a decision finding that Plaintiff was not disabled under the Social Security
Act from his amended alleged disability onset date of November 13, 2015 “through
the date of expiration of [Plaintiff’s] insured status on December 31, 2015.” (AR 81.)
Thereafter, the Appeals Council denied Plaintiff’s request for review, rendering the
ALJ’s decision the final decision of the Commissioner. (AR 1–7.) Having exhausted
his administrative remedies, Plaintiff filed the Complaint in this action on January
19, 2018. (Doc. 1.)
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability
claims. See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in
“substantial gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant
is not so engaged, step two requires the ALJ to determine whether the claimant has
5
a “severe impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that
the claimant has a severe impairment, the third step requires the ALJ to make a
determination as to whether that impairment “meets or equals” an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§
404.1520(d), 416.920(d). The claimant is presumptively disabled if his or her
impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582,
584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to
determine the claimant’s residual functional capacity (RFC), which means the most
the claimant can still do despite his or her mental and physical limitations based on
all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e),
404.1545(a)(1), 416.920(e), 416.945(a)(1). The fourth step requires the ALJ to
consider whether the claimant’s RFC precludes the performance of his or her past
relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the
ALJ determines whether the claimant can do “any other work.” 20 C.F.R. §§
404.1520(g), 416.920(g). The claimant bears the burden of proving his or her case at
steps one through four, Butts, 388 F.3d at 383; and at step five, there is a “limited
burden shift to the Commissioner” to “show that there is work in the national
economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009) (clarifying that the burden shift to the Commissioner at step five is limited,
and the Commissioner “need not provide additional evidence of the claimant’s
[RFC]”).
6
Before employing this analysis, ALJ Menard noted Plaintiff’s testimony at the
administrative hearing that he did not actually earn the income recorded on his
Earnings Report between the years 2010 and 2013 because he was in prison during
that time. (AR 72.) The ALJ stated that the issue “was referred back to the Field
Office for evaluation regarding what impact, if any, . . . this would have on
[Plaintiff’s] date last insured,” and the Field Office removed the unearned income
posted to Plaintiff’s earnings record. (Id.) This resulted in a recalculation of
Plaintiff’s date last insured (DLI), changing the date from December 31, 2018 to
December 31, 2015. (AR 72–73 (citing AR 294–96).)
The ALJ then proceeded with the five-step sequential analysis, first
determining that Plaintiff had not engaged in substantial gainful activity since his
amended alleged disability onset date of November 13, 2015. (AR 73.) At step two,
the ALJ found that Plaintiff had the severe impairments of degenerative disc
disease and osteoarthrosis. (Id.) Conversely, the ALJ found that Plaintiff’s foot
problems and mental impairments––including affective disorder, anxiety disorder,
and substance abuse disorder––were nonsevere. (73–74.) At step three, the ALJ
determined that none of Plaintiff’s impairments, alone or in combination, met or
medically equaled the severity of a listed impairment. (AR 75.)
Next, the ALJ determined that Plaintiff had the RFC to perform “light work,”
as defined in 20 C.F.R. §§ 404.1567(b), except that Plaintiff “can lift and carry and
push and pull 20 pounds occasionally and 10 pounds frequently[;] and he can sit,
stand[,] and walk for [six] hours in an [eight][-]hour day.” (AR 75.) Given this RFC,
7
the ALJ found that Plaintiff was capable of performing his past relevant work as a
mail clerk, i.e., “working in the large mailroom of a debt collections firm owned by
his father.” (AR 81.) The ALJ concluded that Plaintiff had not been under a
disability from the amended alleged disability onset date of November 13, 2015
through the newly assigned DLI of December 31, 2015. (Id.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment 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. § 423(d)(1)(A). A person will be found disabled only if it is
determined that his “impairments are of such severity that he is not only unable to
do his previous work[,] but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A).
In considering the Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual
review of the Commissioner’s decision is thus limited to determining whether
“substantial evidence” exists in the record to support such decision. 42 U.S.C.
§ 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan,
8
904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support
either position, the determination is one to be made by the factfinder.”).
“Substantial evidence” is 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); Poupore, 566 F.3d at 305. In its
deliberations, the court should bear in mind that the Social Security Act is “a
remedial statute to be broadly construed and liberally applied.” Dousewicz v.
Harris, 646 F.2d 771, 773 (2d Cir. 1981).
Analysis
Plaintiff argues that the ALJ violated his due process right to a full and fair
hearing by receiving post-hearing evidence regarding his earned income during the
relevant period without notifying Plaintiff and without providing Plaintiff an
opportunity to respond and supplement the record. In addition, Plaintiff claims the
ALJ erred in finding that Plaintiff did not have a severe mental impairment and
that Plaintiff could walk and stand for six hours in an eight-hour day. Finally,
Plaintiff requests that his claim be remanded to a different ALJ. The Commissioner
refutes Plaintiff’s claims, contending that Plaintiff was not denied due process and
that the ALJ’s decision is supported by substantial evidence and free of legal error.
For the reasons discussed below, the Court finds that Plaintiff’s due process
rights were violated, and thus remands for further proceedings and a new decision.
The Court does not, however, find that grounds exist to require remand to a
different ALJ.
9
I.
Due Process Violation
As of the October 4, 2016 administrative hearing, Plaintiff’s earnings report
indicated that he had earnings coverage for the years 2010 through 2013, which
entitled Plaintiff to eligibility to Title II benefits through the end of the year 2018.
(AR 287–88.) At the hearing, as noted above, the ALJ asked Plaintiff about his
earnings during these years, and Plaintiff advised that he was incarcerated from
2009 to 2014. (AR 144–45.) Plaintiff acknowledged that he had received almost
$300,000 in income while he was in jail, explaining that this money was paid to him
by his father so that his wife and children “had [a] means of surviving” during
Plaintiff’s incarceration. (AR 144.) Plaintiff stated that, prior to being incarcerated,
he was employed at A&S Collection, his father’s debt collection company; and his
father continued to pay him after he was incarcerated, even though he was no longer
doing any work for the company, so that his wife and kids were “taken care of.”2
(AR 145.) The ALJ made no statements at the hearing indicating that this
information might require an amendment to Plaintiff’s earnings report and DLI,
This was not new information to the Commissioner, as Plaintiff had advised the Social
Security Administration of his incarceration and employment status at least as early as December 19,
2014, well before the October 2016 administrative hearing. In a Social Security Administration form
regarding the reporting of substantial gainful activity, a Social Security Administration
representative wrote:
2
Claimant insists that he has not worked at all since 3/23/3009, when he was
incarcerated. He firmly maintains that all earnings (wages [and] self-employment) on
his record posted since 3/23/2009 are from his company continuing to pay him during
his incarceration. He states he was released from jail in 7/2014, again – no work since.
He states he was injured during his incarceration on 9/2/2009. If he has indeed not
worked since 3/23/2009, his EPOD can be 9/2/2009.
(AR 313.)
10
merely stating at the conclusion of the hearing that he was “tak[ing] the matter
under advisement.” (AR 173.)
Nonetheless, in his decision issued about four months later, the ALJ assigned
a new DLI to Plaintiff, and that new DLI significantly and explicitly contributed to
the ALJ’s decision to deny disability benefits. (AR 72–73, 80–82.) The ALJ stated as
follows with respect to his post-hearing assignment of a new DLI to Plaintiff:
During the hearing, [Plaintiff] testified [that] he did not actually earn
the income noted on his earnings report between the years of 2010 –
2013, because he was in prison during that time. The issue was referred
back to the Field Office for evaluation regarding what impact, if any, . . .
this would have on [Plaintiff’s] date last insured. The Field Office
removed the unearned income posted to [Plaintiff’s] earnings record,
which resulted in a recalculation of [Plaintiff’s] date last insured. The
resulting recalculation changed [Plaintiff’s] date last insured from
December 31, 2018 to December 31, 2015.
(AR 72–73 (citations omitted).) A comparison of the Earnings Records prepared on
February 8, 2016 (about eight months before the administrative hearing) and on
January 6, 2017 (about three months after the administrative hearing) reveals that
the more recent Earnings Record––in contrast to the original Earnings Record––
contains no earnings for the years 2010 through 2013 and establishes a new DLI
that is three years earlier than the DLI indicated on the original Earnings Record.
(Compare AR 287–89, 294–96.) The ALJ proceeded in his analysis with this new
information, ultimately finding that Plaintiff was not disabled as of December 31,
2015, largely due to the fact that the applicable treating source opinions did not
relate back to that date. (AR 80–81.)
The Court finds that the procedure followed in this case, with respect to
changing the DLI post-hearing without adequate notification to Plaintiff and
11
without affording Plaintiff an opportunity to supplement the record and attend
another hearing, violated Plaintiff’s due process right to a full and fair hearing after
supplementation of the record. See Townley v. Heckler, 748 F.2d 109, 114 (2d Cir.
1984) (“The interest of an individual in continued receipt of [Social Security
disability benefits] is a statutorily created ‘property’ interest protected by the Fifth
Amendment.” (alteration in original) (quoting Mathews v. Eldridge, 424 U.S. 319,
332 (1976))); Gullo v. Califano, 609 F.2d 649, 650 (2d Cir. 1979) (“Social Security
claimants must receive a reasonable opportunity for a fair hearing, and, if a hearing
is held, the Secretary’s decision must be based upon evidence adduced at the
hearing.” (internal citations and quotation marks omitted)); see also Social Security
Administration’s Hearings, Appeals and Litigation Law Manual (HALLEX) I-2-71(B) (last update 4/1/16) (“When an administrative law judge . . . receives additional
evidence after the hearing from a source other than the claimant or the appointed
representative, if any, and the ALJ proposes to admit the evidence into the record,
he or she will proffer the evidence to the claimant and appointed representative, if
any.”). In Townley, 748 F.2d at 114, the Second Circuit found that the claimant was
denied his due process right to cross-examine a vocational expert and present
rebuttal evidence where the ALJ had used a post-hearing vocational report as the
primary evidence to deny benefits. Similarly, in Gullo, 609 F.2d at 650, the Second
Circuit held that the claimant’s due process rights were violated where the ALJ
ordered the claimant to submit to a post-hearing examination by an orthopedist and
then relied on the report of that examination to deny benefits. The court explained:
12
“The procedures utilized in the case at bar denied the claimant any opportunity to
rebut [the orthopedist’s] report, and, since the [ALJ’s] substantial reliance upon the .
. . report is clear, due process has been denied.” Id.
Like in Townley and Gullo, here, the ALJ improperly denied disability
benefits to Plaintiff based on evidence received after the administrative hearing.
Specifically, the ALJ’s decision denying benefits to Plaintiff was made in reliance on
a DLI that was substantially different than the DLI relied on at the administrative
hearing and that was assessed based on an Earnings Record that was created after
the administrative hearing. The ALJ should have attempted to collect new medical
opinion evidence and should have held a second hearing after the DLI was changed
due to the discovery at the first hearing that Plaintiff did not have any earnings in
the years 2010–2013. Instead, the ALJ obtained a new Earnings Record, changed
the DLI in reliance on that Record, and decided Plaintiff’s claim based on the new
DLI. As noted above, the ALJ’s decision to deny benefits was a direct consequence of
the new DLI, as the ALJ gave “little weight” to each applicable treating source
opinion because it “does not purport to relate back to the expiration of insured status
in December 2015.” (AR 80–81.) The ALJ essentially summarily disregarded the
opinions of multiple treating providers, including Christine Hayner, MSW, LADC;
Christina Harlow, DNP; Paul Smith, DPM; and Kevin Kerin, MD, almost
exclusively based on the timing of their opinions in relation to Plaintiff’s DLI. (Id.)
Had Plaintiff known the ALJ was going to rely on a DLI that was three years earlier
than the one both parties made their arguments in reliance on at the administrative
hearing, he could have sought more contemporaneous opinions from his treating
13
providers as well as other evidence of his alleged disability prior to the new DLI.
See Mathews, 424 U.S. at 348 (“The essence of due process is the requirement that a
person in jeopardy of serious loss [be given] notice of the case against him and [the]
opportunity to meet it.” (internal quotation marks omitted)); Wallace v. Bowen,
869 F.2d 187, 193 (3d Cir. 1989) (“[W]hen an [ALJ] chooses to go outside the
testimony adduced at the hearing in making a determination on a social security
claim, the ALJ must afford the claimant not only an opportunity to comment and
present evidence but also an opportunity to cross-examine the authors of any posthearing reports when such cross-examination is necessary to the full presentation of
the case, and must reopen the hearing for that purpose if requested.”).
Despite the Commissioner’s claims to the contrary, consideration of the notice
that was sent to Plaintiff on December 11, 2016––which advised Plaintiff that the
Commissioner had changed its records to show no employment earnings for Plaintiff
in the years 2010 through 2013––does not change the analysis. (See Doc. 17-1, Ex.
1.) But before the Court can consider the notice, it must determine whether the
Commissioner has properly submitted it (and the Declaration describing it) into
evidence. (Id.; see also Doc. 17.)
Pursuant to 42 U.S.C. § 405(g), “[t]he court may . . . at any time order
additional evidence to be taken before the Commissioner . . . , but only upon a
showing that there is new evidence[,] which is material and that there is good cause
for the failure to incorporate such evidence into the record in a prior proceeding . . .
.” In applying this regulation, the Second Circuit has developed a three-part test,
allowing supplementation of the record where evidence is:
14
(1) new and not merely cumulative of what is already in the record . . .[;
and] (2) material, that is, both relevant to the claimant’s condition during
the time period for which benefits were denied and probative . . .[; and
(3) where there is] good cause for [the] failure to present the evidence
earlier.
Lisa v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991)
(internal quotation marks and citations omitted) (quoting Tirado v. Bowen, 842 F.2d
595, 597 (2d Cir. 1988)). Applied here, first, the notice is “new,” as it was not a part
of the record until it was filed with the Court on October 18, 2018. Second, the
notice is relevant and probative, as it: (a) summarizes the revised earnings record,
which resulted in a new DLI that substantially affected the ALJ’s decision in this
matter; and (b) reflects that Plaintiff was notified of the new earnings record before
the ALJ issued his decision, potentially refuting Plaintiff’s due process argument.
Third, there was good cause for the Commissioner not to submit the notice earlier,
as Plaintiff did not raise his due process argument until the filing of his motion in
this litigation.
Therefore, the Court finds that the notice meets the criteria for “new and
material” evidence warranting inclusion in the record. Nonetheless, the notice does
not change the Court’s above analysis and conclusion that Plaintiff was deprived of
his right to due process, because not only does the notice fail to advise Plaintiff that
his DLI was being changed, it also fails to advise Plaintiff that (and specifically,
how) the new DLI would affect the ALJ’s decision on Plaintiff’s disability claim to
Plaintiff’s detriment. (See Doc. 17-1, Ex. 1 at 2 (advising merely that “we changed
our records to show the following amounts for the employment you asked us about,”
and listing no earnings for the years 2011 through 2013).) Although the notice
15
advises Plaintiff of his “right to appeal” the alteration to his earnings record,
allowing him 60 days to appeal in writing (id.), Plaintiff should have been allowed
an opportunity to revise his claim, supplement the record, and attend a
supplemental hearing given the Commissioner’s assignment of a new DLI after the
initial administrative hearing. Remand is required for this procedure to take place.
On remand, the issue of Plaintiff’s earnings record during the years he was in
prison (2009 through 2014) may also be further developed, if Plaintiff contends he
has valid earnings during those years. (See Doc. 10-1 at 14–15 (“An individual could
receive earnings while incarcerated, either as a member of a family owned business
or through self-employment with his wife so that the mere fact that [Plaintiff] was
incarcerated does not mean that his earnings for those periods was wrong.”).)
II.
Severity of Mental Health Impairments
Plaintiff next contends the ALJ erred in finding that Plaintiff had no severe
mental health impairments at step two of the sequential analysis. Given the
remand of this matter for the due process concerns discussed above, the Court need
not address this issue: once the claim is remanded and Plaintiff is afforded an
opportunity to argue his claim in lieu of the amended DLI, the ALJ will be required
to reconsider the claim at each step of the analysis, including at step two.
Nonetheless, the Court finds that the ALJ erred in failing to find that Plaintiff’s
mental impairments met this step’s de minimis severity requirement.
The claimant bears the burden at step two of the sequential evaluation to
establish that his or her impairment is “severe,” meaning it “significantly limit[s]
[his or her] physical or mental ability to do basic work activities.” 20 C.F.R.
16
§§ 404.1520(c); 404.1521(a). Despite this strong language, the step-two severity
assessment “may do no more than screen out de minimis claims.” Dixon v. Shalala,
54 F.3d 1019, 1030 (2d Cir. 1995) (citing Bowen v. Yuckert, 482 U.S. 137, 158
(1987)). To that end, Social Security Ruling (SSR) 85-28 provides: “A claim may be
denied at step two only if the evidence shows that the individual’s impairments,
when considered in combination, are not medically severe, i.e., do not have more
than a minimal effect on the [claimant’s] physical or mental ability(ies) to perform
basic work activities.” 1985 WL 56856, at *3 (1985). The Ruling further states: “An
impairment or combination of impairments is found ‘not severe’ and a finding of ‘not
disabled’ is made at this step when medical evidence establishes only a slight
abnormality or a combination of slight abnormalities[,] which would have no more
than a minimal effect on an individual’s ability to work.” Id. (emphasis added)
(citing 20 C.F.R. §§ 404.1520, 404.1521, 416.920(c), 416.921); see also SSR 96-3p,
1996 WL 374181, at *1 (July 2, 1996); Griffeth v. Comm’r of Soc. Sec., 217 F. App’x
425, 428 (6th Cir. 2007) (“The purpose of the second step of the sequential analysis
is to enable the Commissioner to screen out totally groundless claims.” (internal
quotation marks omitted)).
The ALJ erred in finding that Plaintiff did not have a severe mental
impairment, as substantial evidence demonstrates that Plaintiff’s mental
impairments caused more than a slight abnormality and had more than a minimal
effect on his ability to perform basic work activities during the alleged disability
period, even if that period expired on the earlier new DLI of December 31, 2015.
Specifically, one agency consultant and two treating medical sources opined that
17
Plaintiff had severe mental impairments around the relevant period. In April 2015
(approximately eight months prior to the December 2015 DLI), examining agency
consultant Gregory Korgeski, PhD, opined that Plaintiff suffered from severe PTSD,
major depressive disorder, and paranoid personality features or disorder. (AR 525.)
Dr. Korgeski noted that Plaintiff was “socially very ill at ease and tense” during his
examination, “look[ing] startled in the waiting room”; having a “staring appearance”;
speaking only in short sentences; and appearing hypervigilant, wary, and “passively
angry.” (AR 523.) Dr. Korgeski summarized Plaintiff’s mood as appearing “tense,
angry, [and] dysphoric,” with a “blunted” affect and “highly rigid and constricted”
thinking. (AR 524.) Almost inexplicably, the ALJ gave “great weight” to these
opinions while at the same time finding that Plaintiff had no severe mental
impairments. (AR 74–75, 80.)
In August 2016 (approximately eight months after the December 2015 DLI),
treating social worker and therapist Christine Hayner, MSW (master of social work),
LADC (licensed alcohol and drug counselor), opined that Plaintiff would likely have
difficulty responding appropriately to coworkers, supervisors, and the general
public, explaining that his inappropriate responses “would be varied and
unpredictable on a day[-]to[-]day basis due to the severity of triggered symptoms.”
(AR 809.) Hayner also opined that Plaintiff had a “[l]ow threshold and [a] poor
response to stress” (id.); and that, due to his PTSD, major depressive disorder, and
paranoid personality disorder, Plaintiff experienced “severe difficulty in . . . ability to
function on a daily basis” and “varied and unpredictable responses to internal and
external triggers in a work[-]related environment” (AR 811).
18
Also in August 2016, Plaintiff’s treating primary care provider, Christina
Harlow, DNP (doctor of nursing practice) submitted a letter stating that Plaintiff
carried diagnoses of PTSD, major depressive disorder, and paranoid personality
disorder; and that Plaintiff was seeing a therapist regularly for these conditions.
(AR 943.) Harlow further stated that Plaintiff was “unable to get adequate sleep.”
(Id.) Although noting that Hayner was better suited to opine on the severity of
Plaintiff’s mental health impairments because she was a specialist and had a longer
and more frequent treatment relationship with Plaintiff, Harlow opined that
Plaintiff’s mental health symptoms “are severe and debilitating to him.” (Id.) About
a month later, in September 2016 (approximately nine months after the December
2015 DLI), Harlow opined that the effects of Plaintiff’s “severe PTSD [and] hyperalert behavior with paranoia,” as well as his difficulty concentrating for any length
of time, would result in Plaintiff needing more than ordinary rest breaks and being
off-task for more than 20% of an eight-hour workday. (AR 1134–35.) Harlow
further stated that Plaintiff’s paranoia and inability to sleep “would suggest
frequently missing work.” (AR 1137.)
Despite these opinions from two treating sources and one examining agency
consultant––each finding, irrespective of one another, that Plaintiff was severely
limited in his ability to function due to his mental impairments––the ALJ found that
Plaintiff had no severe mental impairment or combination of mental impairments.
(AR 73–75.) In making this finding, the ALJ improperly “substitute[d] his own
judgment” for that of competent medical professionals. Balsamo v. Chater, 142 F.3d
75, 81 (2d Cir. 1998) (“[W]hile an [ALJ] is free to resolve issues of credibility as to
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lay testimony or to choose between properly submitted medical opinions, he is not
free to set his own expertise against that of a physician who [submitted an opinion
to or] testified before him.” (alterations in original) (internal quotation marks
omitted)). As noted earlier, the ALJ’s primary reason for giving “little weight” to the
opinions of Hayner and Harlow was that their opinions do not “purport to relate
back to the expiration of insured status in December 2015.”3 (AR 80–81.) But
Hayner noted in her opinion that Plaintiff’s level of function “has remained
consistent in presentation” since June 2013. (AR 812.) And in a January 28, 2016
treatment note, which is only about a month after the new DLI in December 2015,
Hayner recorded that Plaintiff had severe depression and PTSD. (AR 589.) As for
Harlow, in response to a question asking whether Plaintiff’s ability to function was
any different since September 2009, she stated that she did not know him then but
“his condition is unchanged since I have known him,” which was since January
2016, only one month after the new DLI. (AR 1138; see AR 943.)
The ALJ’s focus on the failure of these medical opinions to explicitly “relate
back” to the period before the new DLI is unsupported, as the Second Circuit has
The ALJ also found that Hayner’s opinions were worth only “little weight” because
“[Plaintiff] was working until November 2015 when he had to stop for surgery on his foot and not
because of any mental health issues.” (AR 80.) The record does not support this assessment, as
Plaintiff’s job as of November 2015 required very little from a functional mental health standpoint.
As discussed earlier, Plaintiff testified that, from April to November 2015, he was a trainee at
Daedalus Solar Works, a solar paneling company, where his job duties included riding around with a
salesman who attempted to sell solar panels to residential and commercial buyers. (AR 142–44, 162.)
Plaintiff explained that he was supposed to be getting trained for the job, but “it never happened” and
he never made any sales and had only very limited interaction with customers. (AR 143.) He further
stated that the owner of the company was “a good friend of mine, and I think he was more or less
trying to help me out financially than really giving me a job.” (AR 142.) Plaintiff could have had
severe mental impairments just prior to his new DLI in December 2015, notwithstanding his ability
to do this job a month earlier in November 2015. (See Doc. 22 at 8–9.)
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held that the “‘diagnosis of a claimant’s condition may properly be made even
several years after the actual onset of the impairment,’ and by a physician who had
not theretofore treated the claimant.” Parker v. Harris, 626 F.2d 225, 232 (2d Cir.
1980) (quoting Stark v. Weinberger, 497 F.2d 1092, 1097 (7th Cir. 1974)); see
Messina v. Comm’r of Soc. Sec. Admin., 17-1598-cv, 2018 WL 4211602, at *3 (2d Cir.
Sept. 5, 2018); Byam v. Barnhart, 336 F.3d 172, 183 (2d Cir. 2003) (“[W]hile a
treating physician’s retrospective diagnosis is not conclusive, it is entitled to
controlling weight unless it is contradicted by other medical evidence or
overwhelmingly compelling non-medical evidence.” (internal quotation marks
omitted)); Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981). The Fourth Circuit
has similarly held, stating: “Medical evaluations made after a claimant’s insured
status has expired are not automatically barred from consideration and may be
relevant to prove a disability arising before the claimant’s DLI.” Bird v. Comm’r of
Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). Neither Hayner’s nor Harlow’s
opinions are contradicted by other reliable medical evidence in the record, and they
are consistent with not only each other but also with the opinions of Dr. Korgeski,
which were made in April 2015, approximately eight months prior to the new DLI.
The record does not support the proposition that Plaintiff’s mental impairments
were severe beginning in January 2016 or sometime shortly thereafter, but not
before then. Rather, there is substantial evidence, including the medical opinions
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noted above, indicating that Plaintiff had severe mental impairments prior to
December 2015. (See, e.g., AR 523–25, 540, 545–46, 549, 809, 812.)4
For these reasons, the ALJ erred in finding that Plaintiff did not have a
severe mental impairment or combination of impairments prior to the new DLI of
December 31, 2015.
III.
Lower Extremity Problems
Plaintiff also contends that the ALJ erred in finding that Plaintiff was able to
walk and stand for six hours in an eight-hour workday. As with the above issue, the
Court need not address it, given that the ALJ will reconsider it on remand, after
supplementation of the record and a new hearing. The Court merely notes, for the
purpose of providing guidance on remand, that Plaintiff clearly had significant
The Court summarily rejects the Commissioner’s argument that Hayner’s opinions are
“uncorroborated by [her own] office notes contemporaneous to the period at issue” (Doc. 16 at 9), as
the ALJ did not make this finding. In fact, the ALJ does not mention the consistency or
supportability of either Hayner’s or Harlow’s opinions in his decision. Rather, as noted above, the
ALJ gave little weight to Hayner’s opinions solely on the grounds that they did not “relate back to the
expiration of [Plaintiff’s] insured status in December 2015,” and that Plaintiff was working until
November 2015 and had to stop only because of problems with his foot and not mental health
problems. (AR 80.) It is well settled that “[the court] may not ‘affirm an administrative action on
grounds different from those considered by the agency.’” Lesterhuis v. Colvin, 805 F.3d 83, 89 (2d Cir.
2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)); see Meuser v. Colvin, 838 F.3d
905, 911 (7th Cir. 2016) (citing SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943)). The Commissioner
also supports the ALJ’s decision to give little weight to the opinions of both Hayner and Harlow by
pointing out that neither provider is an “acceptable medical source under the Commissioner’s
regulations and rulings.” (Doc. 16 at 9.) Although true, the ALJ did not make this finding with
respect to Hayner. (AR 80.) The ALJ did, correctly, state that Harlow “is not an acceptable medical
source” (id.), but that merely meant the ALJ could not afford “controlling weight” to Harlow’s
opinions, 20 C.F.R. § 404.1527(c)(2); he was still required to provide a reasonable explanation for his
decision to afford limited weight to Harlow’s opinions, given Harlow’s status as an “other source” who
treated Plaintiff during the relevant period, see, e.g., Canales v. Comm’r of Soc. Sec., 698 F. Supp. 2d
335, 344 (E.D.N.Y. 2010); SSR 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006) (stating that, in
addition to evidence from “acceptable medical sources,” ALJs may use evidence from “other sources”–
–who “have increasingly assumed a greater percentage of the treatment and evaluation functions
previously handled primarily by physicians and psychologists” and who “are important and should be
evaluated on key issues such as impairment severity and functional effects”––to show the severity of
a claimant’s impairments).
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problems with his right foot prior to November 2015, when he had surgery on the
foot. (AR 941.) Although his postoperative recovery went well, Plaintiff reinjured
his foot in January and February 2016, and was thereafter noted to have reduced
range of motion and increased pain and swelling on examination. (Id.) In August
2016, Paul Smith, DPM (doctor of podiatric medicine), the podiatrist who performed
Plaintiff’s foot surgery and treated Plaintiff’s related foot issues, opined that
Plaintiff would need to elevate and rest his right leg after standing or walking for
more than 30 minutes; and would be limited to standing and walking for a total of
between two and six hours in an eight-hour workday with limitations in lower
extremity pushing and pulling. (AR 941–42.) The ALJ rejected these opinions,
again, on the basis that they related to a period after the DLI. (AR 80.) But some
parts of the opinions do in fact discuss the period prior to December 31, 2015. (See
AR 941.) Moreover, on remand, Plaintiff will be given an opportunity to obtain a
revised opinion from Dr. Smith (and any other relevant providers), specifically
discussing Plaintiff’s ability to stand and walk prior to the new DLI of December 31,
2015, or to argue why Dr. Smith’s August 2016 opinion applies to the applicable
disability period.
IV.
Remand to a Different ALJ
Finally, Plaintiff requests that the Court remand this matter to a different
ALJ, asserting that “the ALJ in this case has shown a complete disregard for
[Plaintiff’s] due process rights and has failed to provide a full and fair hearing.”
(Doc. 22 at 12; see Doc. 10–1 at 23.) The Court denies this request, as there is no
23
indication that ALJ Menard engaged in conduct warranting remand to a different
ALJ. See Johnson v. Astrue, Civil No. 3:10-CV-1023 (VLB), 2011 WL 2938074, at *2
(D. Conn. Feb. 15, 2011) (“[W]hen the conduct of an ALJ gives rise to serious
concerns about the fundamental fairness of the disability review process, remand to a
new ALJ is appropriate.” (emphasis added)). Specifically, there is no evidence of
bias, hostility, or prejudice by the ALJ toward Plaintiff. See Sutherland v. Barnhart,
322 F. Supp. 2d 282, 293 (E.D.N.Y. 2004) (remand to a new ALJ justified where ALJ
exhibited “personal hostility” toward the plaintiff). Nonetheless, the Commissioner
retains discretion to make an assignment to a different ALJ on remand if she so
chooses. See Johnson, 2011 WL 2938074, at *2 (taking no position on which ALJ
should be assigned to the case on remand, and noting that (a) there was “no evidence
that the ALJ acted due to apparent hostility toward Ms. Johnson”; and (b) “simply
failing to adhere to the appropriate legal standard during the first hearing does not
clearly indicate that the ALJ would not apply the correct standard on remand”).
Conclusion
The Court finds that the Commissioner violated Plaintiff’s due process right
to a full and fair hearing. Prior to issuing his decision, the ALJ should have
informed Plaintiff that the Commissioner had revised Plaintiff’s Earnings Report
and that the ALJ would in turn change Plaintiff’s DLI and issue a decision in
accordance therewith. Given this new information, the ALJ should have afforded
Plaintiff an opportunity to supplement the record and testify at a new hearing to
argue the earnings/DLI issue and, if necessary, to shift the relevant dates of his
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claim to correspond with the new DLI. Furthermore, whether using the original
DLI or the DLI assigned at the October 2016 administrative hearing, the Court finds
that the ALJ erred in his step-two finding that Plaintiff had no severe mental
impairments.
Accordingly, the Court GRANTS Plaintiff’s motion (Doc. 10), in part; DENIES
the Commissioner’s motion (Doc. 16), and REMANDS for further proceedings and a
new decision in accordance with this ruling.
Dated at Burlington, in the District of Vermont, this 4th day of January 2019.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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