Lagrand v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

TERRI LAGRAND O/B/O H.W.F., IV,

Plaintiff,

v.

DECISION & ORDER

ANDREW SAUL, Commissioner of

18-CV-6607-MJP

Social Security,

Defendant.

INTRODUCTION

Pedersen, M.J. Terri Lagrand (“Plaintiff”), on behalf of her minor child,

H.W.F., IV (“H.W.F.” or “minor child”) brings this action pursuant to Section 205(g)

of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the Administrative

Law Judge’s (“A.L.J.”) final decision that Plaintiff’s minor child, was not eligible for

supplemental security income under the Social Security Act (the “Act”). The

Commissioner found that H.W.F. was not disabled during the relevant period from

April 22, 2015—the date Plaintiff protectively filed her application—through August

17, 2017—the date the A.L.J. issued his decision. This Court has jurisdiction

pursuant to 42 U.S.C. § 405(g), which applies to all supplemental security income

cases. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of

this case by a United States magistrate judge. (Consent to Proceed, Nov. 15, 2019,

ECF No. 16.)

BACKGROUND

On April 22, 2015, Plaintiff filed an application for Supplemental Security

Income benefits on behalf of H.W.F. (R. 203–08.) Plaintiff timely requested a hearing

on June 5, 2015. (R. 103–20.) On June 14, 2017, Plaintiff and the minor child

appeared at a hearing held in Rochester, New York before an A.L.J. (R. 69–80.)

Plaintiff and the minor child testified at the hearing. (R. 69, 89.) The A.L.J. issued an

Unfavorable Decision on August 17, 2017. (R. 12–32.) The Appeals Council denied the

Request for Review, and this action was timely filed. (Compl., Aug. 20¸ 2018, ECF No.

1.)

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims

based on the denial of Social Security benefits. Section 405(g) provides that the

District Court “shall have the power to enter, upon the pleadings and transcript of

the record, a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a

rehearing.” 42 U.S.C. § 405(g) (2007). It directs that when considering a claim, the

Court must accept the findings of fact made by the Commissioner, provided that such

findings are supported by substantial evidence in the record. Substantial evidence is

defined as “‘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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the Commissioner’s

findings, the Court must “examine the entire record, including contradictory evidence

and evidence from which conflicting inferences can be drawn.” Brown v. Apfel, 174

F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.

1983) (per curiam)). Section 405(g) limits the scope of the Court’s review to two

inquiries: whether the Commissioner’s findings were supported by substantial

evidence in the record, and whether the Commissioner’s conclusions are based upon

an erroneous legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir.

2003); see also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a

benefits case de novo).

To be “disabled” within the meaning of the Childhood Disability Act, a child

must show he or she has a “medically determinable physical or mental impairment,

which results in marked and severe functional limitations,” and which either lasts or

can be expected to last for a continuous period of not less than 12 months. 42 U.S.C.

§ 1382c(a)(3)(C)(I). A three-step sequential evaluation process—similar to the five-

step sequential evaluation process for adults—determines whether a supplemental

security income claimant under the age of 18 is disabled. 20 C.F.R. § 416.924(a). At

the first step, the A.L.J. determines whether the child has engaged in substantial

gainful activity during the relevant period. 20 C.F.R.
§ 416.924(b). If so, the child is

not disabled; if not, the evaluation continues to the next step. At the second step, the

A.L.J. determines whether the child has a “severe” impairment, or combination of

impairments—i.e., a slight abnormality or combination of slight abnormalities that

causes more than minimal functional limitations. 20 C.F.R.
§ 416.924(c). If not, the

A.L.J. denies the application; otherwise, the evaluation continues.

A child’s functional limitations are evaluated in the context of six broad

functional areas, called “domains of functioning.” 20 C.F.R. § 416.926a(b)(1). If a child

has marked limitations in two domains or an extreme limitation in one domain, the

child’s impairment or combination of impairments is functionally equivalent to a

listed impairment. 20 C.F.R. § 416.926a(d). Those prescribed domains include:

(i) Acquiring and using information;

(ii) Attending and completing tasks;

(iii) Interacting and relating with others;

(iv) Moving about and manipulating objects;

(v) Caring for [oneself]; and

(vi) Health and physical well-being.

20 C.F.R. § 416.926a(b)(1). A finding of disability is warranted if a “marked”

limitation, defined as when the impairment “interferes seriously with [the claimant’s]

ability to independently initiate, sustain, or complete activities,” 20 C.F.R. §

416.926a(e)(2)(i), is found in two of the listed domains. 20 C.F.R. § 416.926a(a).

Functional equivalence also exists in the event of a finding of an “extreme” limitation,

meaning “more than marked,” representing an impairment which “interferes very

seriously with [the claimant’s] ability to independently initiate, sustain, or complete

activities,” and this rating is only “give[n] to the worst limitations.” 20 C.F.R. §

416.926a(e)(3)(i); see also Pollard v. Halter, 377 F.3d 183, 190 (2d. Cir 2004).

A Commissioner’s determination that a claimant is not disabled will be set

aside when the factual findings are not supported by “substantial evidence.” 42 U.S.C.

§ 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). The Court may also set

aside the Commissioner’s decision when it is based upon legal error. Rosa v.

Callahan, 168 F.3d 72, 77 (2d Cir. 1999). “Remand is particularly appropriate where

further findings or explanation will clarify the rationale for the A.L.J.’s decision.”

Steficek v. Barnhart, 462 F.Supp.2d 415, 418 (W.D.N.Y. Nov. 28, 2006) (citing Pratts

v. Chater, 94 F.3d 34, 39 (2d Cir.1996)). The standards for finding disability are “to

be applied in light of the fact that ‘the [Social Security] Act is a remedial statute, to

be broadly construed and liberally applied.’” Gold v. Secretary of Health, Educ. &

Welfare, 463 F.2d 38, 41 (2d Cir. 1972) (quoting Haberman v. Finch, 418 F.2d 664,

667 (2d Cir. 1969)).

The A.L.J.’s Decision

After evaluating the record, the A.L.J. determined H.W.F. had the severe

impairment of speech and language delays. (R. 18.) At step three, the A.L.J.

determined that H.W.F.’s impairments were not of a severity that met or medically

equaled any listed impairment. (R. 18–23.) The A.L.J. then evaluated functional

equivalence and determined that H.W.F. had no limitations in the domains of

attending and completing tasks, moving about and manipulating objects, caring for

himself, and physical well-being. (R. 24–29.) The A.L.J. also found that Plaintiff had

less than marked limitations in the domains of acquiring and using information and

interacting and relating with others. (R. 23–26.) The A.L.J. concluded that H.W.F.’s

impairments did not result in two “marked” limitations or one “extreme” limitation,

and that the child was not disabled (R. 18–29).

Plaintiff’s Contentions

Plaintiff claims that the A.L.J. improperly excluded relevant treatment notes

despite Plaintiff’s counsel providing the A.L.J. notice of the evidence more than five

business days prior to the scheduled hearing. (Pl.’s Mem. of Law, at 11, ECF No. 10-

1.) Plaintiff further claims that the treatment notes contain information that

undermines the A.L.J.’s findings relating to the veracity of Plaintiff’s subjective

complaints, and, thus, the A.L.J.’s exclusion of the evidence was harmful. (Id.)

Plaintiff states that the A.L.J.’s conclusory reasoning for finding less than marked

limitations in the domain of interacting and relating with others and the domain of

acquiring and using information, was insufficient and prevents meaningful judicial

review. (Id.) Further, Plaintiff argues that fault in the A.L.J.’s analysis is not a

harmless error because the record contains evidence strongly suggesting marked

limitations in two domains. (Id.) While Plaintiff raises numerous issues with the

ALJ’s decision, only the issue regarding the excluded records will be addressed as it

requires remand.

ANALYSIS

Pursuant to its authority under 42 U.S.C. § 405(a), the agency revised 20

C.F.R. § 416.1435, to require claimants to (a) make every reasonable effort to ensure

that the A.L.J. receives all evidence—as required by 20 C.F.R. § 416.912—and (b)

inform the agency about or submit any written evidence, “no later than 5 business

days before the date of the scheduled hearing.” 20 C.F.R. § 416.1435(a); Ensuring

Program Uniformity at the Hearing and Appeals Council Levels of the

Administrative Review Process, 81 Fed. Reg. 90987-90997 (Dec. 16, 2016).

If the claimant misses this 5-day deadline, the A.L.J. will later accept the

evidence if the A.L.J. has not yet issued a decision and the claimant demonstrates

that he or she did not submit the evidence before the deadline because:

(1) the agency misled the claimant;

(2) the claimant had a physical, mental, educational, or linguistic

limitation that prevented them from timely submitting or informing the

agency; or

(3) an unusual, unexpected, or unavoidable circumstance beyond the

claimant’s control prevented them from timely submitting or informing

the agency about the evidence.

20 C.F.R. § 416.1435(b). The exceptions for good cause are only relevant when a

claimant does not inform the A.L.J. or submit a written statement explaining what

documents are missing, within five business days before the date of scheduled

hearing. 20 C.F.R. § 416.1435(a) (“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”). The agency defines

“unusual” and “unavoidable” circumstances to include:

(1) serious illness that prevented the claimant from contacting the

agency;

(2) a death or immediate illness in the claimant’s immediate family;

(3) destruction of the records by fire or accidental cause; or

(4) receipt of evidence less than five days prior to the hearing, despite

the claimant “actively and diligently” seeking the evidence from the

source.

Id. These changes are effective for hearings after May 1, 2017. Ensuring Program

Uniformity at the Hearing and Appeals Council Levels of the Administrative Review

Process, 81 Fed. Reg. 90987-90997 (Dec. 16, 2016).

The A.L.J. stated in his decision that Plaintiff did not inform him of the missing

records more than five business days before the scheduled hearing date. (R. 15.) On

May 8, 2017, Plaintiff informed the A.L.J. that requested medical records from Dr.

Collins-McGowan had not been obtained in time for the May 18, 2017 hearing. (R

317, 134.) On May 13, 2017, Plaintiff submitted a pre-hearing memorandum

indicating that requested medical records “have not been obtained as of today’s date

despite diligent efforts by telephone and by mail. Given that the hearing is scheduled

for May 18, 2017, the letter dated May 8, 2017 satisfies the 5- day notice requirement

under 20 C.F.R. § 416.1535(a).” (R 320.) The administrative hearing was postponed

to June 14, 2017. (R. 320.) Plaintiff’s correspondence appears to satisfy the Five-Day

Rule’s requirement to inform the A.L.J. of all relevant evidence required by subpart

a of 20 C.F.R. § 416.1535.

An exclusion of records may be considered harmless if including the

information would lead to the same result. Zabala v. Astrue, 595 F.3d 402, 410 (2d

Cir. 2010) (remand unnecessary where “application of the correct legal principles to

the record could lead [only to the same] conclusion”). The late records include

documentation from “well child” visits in March 2016 and March 2017 (R. 34–68.) The

late documents note that Stephen R. Webb, M.D., previously diagnosed a “[s]evere

speech delay” in June 2013 (R. 35, 52–53), the documentation of which is already

contained in the record (R. 350–53). While some documents were already contained

in the record, there was also new information regarding H.W.F’s intensity,

persistence, and limiting effects of his medical issues. (R. 34–68.)

In the case at issue, the A.L.J. gave less weight to Plaintiff’s credibility, in turn

finding that her statements about the intensity persistence and limiting effects of

H.W.F’s medical issues were not consistent with the record. (R. 20.)

At the hearing, the claimant's mother testified that, when the claimant

began speech and language therapy at the age of two, the claimant could

only pronounce clearly three to four words. As of now, the claimant

speaks up to 50 words clearly. However, the claimant's mother added,

her son continues to struggle with speech articulation. Although she is

familiar with his speech, she does not understand him 70% of the time.

She reported that the claimant struggles at speech therapy and in the

classroom, particularly when reading. The claimant's mother indicated

that she hoped to enroll her son in the STEPS program, where he will

have a speech teacher with him at all times, in addition to being pulled

out for speech services. She indicated that the program was designed for

children with "severe" speech impediments, and that her son was

recommended for this program by his teachers. The claimant's mother

reported that the claimant gets along with his siblings. He enjoys riding

his bike, playing outside with his friends and siblings.

(R. 19.) The A.L.J. wrote, “I note that there is little evidence in support of the mother’s

hearing testimony.” (R. 19.) As a result, the ALJ only had evidence which contradicted

Plaintiff’s testimony, and determined that the statements about the intensity,

persistence, and limiting effects of H.W.F’s symptoms were not consistent with the

record. (R. 20.) On March 10, 2016, Sarah Collins-McGowan, M.D., continued to treat

H.W.F. for speech and language disorder. (R 34–51.) H.W.F. continued to receive

speech therapy three times per week for thirty minutes. (R. 41.) He continued to have

trouble accurately identifying colors. (R. 42.) Dr. Collins-McGowan noted possible

cognitive delays and that Plaintiff should continue speech services. (R. 43.) On

March 28, 2017, Dr. Collins-McGowan noted that Plaintiff had an Individualized

Education Program (“IEP”) in kindergarten at School #39 and received speech

therapy (“ST”) three times per week. (R. 58.) He was going to be attending the Steps

Program at Nathaniel Hawthorne for the first grade with a special education teacher

in the classroom in addition to individual speech therapy. (R. 61.) He was noted to

have some difficulty at the beginning of kindergarten because he had trouble

understanding things (R. 61.) He was assessed with speech delay and was noted to

be receiving services through the school district. He was instructed to continued

speech services through his IEP. (R. 59.) While excluding the findings of Dr. Collins-

McGowan contained in the rejected evidence, the A.L.J. relied upon the education

records to find, “[t]here is no evidence that the claimant’s kindergarten teacher or his

speech pathologist ever recommended the claimant for a more rigorous speech

therapy program, as suggested by his mother at the hearing.” (R. 20.) The records

excluded by the A.L.J. indicate that Plaintiff was going to attend the Steps Program

at Nathaniel Hawthorne for the first grade with a special education teacher in the

classroom, in addition to individual speech therapy. (R. 58.) The information that was

excluded does not indicate that the A.L.J.’s result would be the same, had the A.L.J.

included it. That is not to say the A.L.J. would not have arrived at the same

conclusion had the A.L.J. included the information, but rather that the standard set

in Zabala is not met. See Zabala v. Astrue, 595 F.3d 402, at 410 (2d Cir. 2010)

(Remand is unnecessary, however, “[w]here application of the correct legal standard

could lead to only one conclusion.” Schaal, 134 F.3d at 504). As the Second Circuit

wrote in Johnson, “where application of the correct legal principles to the record could

lead [only to the same] conclusion, there is no need to require agency reconsideration.”

Johnson, 817 F.2d at 986; see also Havas v. Bowen, 804 F.2d 783, 786 (2d Cir.1986)

(declining to remand for consideration of a treating physician’s opinion where there

was no substantial evidence to refute the treating physician’s conclusion that the

claimant could not return to his prior employment). In Snell, the Second Circuit

remanded because the unconsidered physician reports, asserting that the claimant

was totally disabled, were significantly more favorable to the claimant than the

reports that were considered. Snell, 177 F.3d at 130, 134. Here, the information which

was not included would not be guaranteed to lead to the same conclusion the A.L.J.

reached, had it been included in the determination. The information excluded was

beneficial to Plaintiff’s case, and also conflicted with the A.L.J.’s credibility

determination. The case must be remanded in order so that the excluded information

can be addressed.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for judgment on the pleadings

(ECF No. 10) is granted and the Commissioner’s motion for judgment on the

pleadings (ECF No. 13) is denied. Pursuant to the fourth sentence of 42 U.S.C.

§ 405(g), this matter is remanded to the Commissioner for an expedited hearing. The

Clerk of the Court is directed to enter judgment in favor of the Plaintiff and close this

case.

IT IS SO ORDERED.

/s/ Mark Pedersen

MARK. W. PEDERSEN

United States Magistrate Judge

Dated: March 26, 2020

Rochester, New York