Pladas v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JENNIFER LYNN PLADAS,

Plaintiff,

v. DECISION & ORDER

ANDREW SAUL, Commissioner of 19-CV-648-MJP

Social Security,

Defendant.

INTRODUCTION

Pedersen, M.J. Jennifer Lynn Pladas (“Plaintiff”) brings this action pursuant

to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review

of a final decision of the Commissioner of Social Security (“Commissioner”) denying

her application for disability benefits and Supplemental Security Income Benefits

(“SSI”). 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, ECF No. 13.)

Presently before the Court are cross-motions for judgment on the pleadings

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF Nos. 7 & 9.) For

the reasons set forth below, this matter must be remanded for a rehearing.

PROCEDURAL BACKGROUND

Plaintiff filed an application for supplemental security income (“SSI”) and

disability insurance benefits (“DIB”) on January 19, 2016. (R.1 156–61.) The

Commissioner initially denied the application on March 14, 2016. (R. 73–86.) Plaintiff

1 “R” refers to the filed record of proceedings from the Social Security Administration, filed on

August 9, 2019. (ECF No. 4.)

requested a hearing before an Administrative Law Judge (“A.L.J.”), (R. 90–98), and

appeared and testified at a hearing held on February 7, 2018. (R. 26–66.) On August

31, 2018, the A.L.J. issued an unfavorable decision, finding Plaintiff was not disabled.

(R. 6–25.) In her decision, the A.L.J. followed the required five-step analysis for

evaluating disability claims. (R. 11–25.) Under step one of the process, the A.L.J.

found that Plaintiff had not engaged in substantial gainful activity since November

24, 2015, the application date. (R. 11.) At step two, the A.L.J. concluded that Plaintiff

had the following severe impairments: intervertebral disc disorders with

radiculopathy, chondromalacia bilaterally, asthma, unspecified anxiety disorder,

unspecified depressive disorder, and post-traumatic stress disorder. (R. 12.) At step

three, the A.L.J. determined that Plaintiff does not have an impairment (or

combination of impairments) that met or medically equaled one of the listed

impairments. (Id.) At step four, the A.L.J. concluded that Plaintiff has the following

residual functional capacity (“RFC”):

to perform light work as defined in 20 C.F.R. § 416.967(b) except the

claimant can push and pull as much as she can lift and carry. The

claimant can occasionally overhead reach to the left. The claimant can

occasionally climb ramps and stairs, ladders[,] ropes[,] and scaffolds,

balance, stoop, kneel, crouch[,] and crawl. The claimant can never work

at unprotected heights or with moving mechanical parts. The claimant

can have occasional exposure to humidity, wetness[,] and dust, odors,

fumes[,] and pulmonary irritants. The claimant cannot have exposure to

extreme cold or extreme heat. The claimant is limited to performing

simple, routine[,] and repetitive tasks but not at a production rate pace

(i.e. no assembly line work). The claimant is limited to simple work-

related decisions. The claimant is limited to tolerating few changes in

routine work setting defined as performing the same duties at the same

station or location day to day. The claimant can have occasional and

superficial contact with coworkers, supervisors[,] and the public.

(R. 14–15) The A.L.J. determined that Plaintiff has no past relevant work. (R. 20.)

The A.L.J. proceeded on to step five and found that jobs existed in the national and

regional economy that Plaintiff could perform. (Id.) Accordingly, at step five, the

A.L.J. found that Plaintiff was not disabled. (R. 21.)

Plaintiff timely filed a request for review by the Appeals Council on August 31,

2018. (R. 1–5.) The Appeals Council denied the request for review on March 19, 2019,

thereby making the A.L.J.’s decision the final decision of the Commissioner. Plaintiff

timely filed this civil action on March 21, 2019, seeking judicial review of the A.L.J.’s

decision. (Compl., 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).

A person is disabled for the purposes of SSI and disability benefits if he or she

is unable “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) & 1382c(a)(3)(A). In assessing whether a

claimant is disabled, the A.L.J. must employ a five-step sequential analysis. See Berry

v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The five steps are:

(1) whether the claimant is currently engaged in substantial gainful

activity;

(2) if not, whether the claimant has any “severe impairment” that

“significantly limits [the claimant’s] physical or mental ability to do

basic work activities”;

(3) if so, whether any of the claimant’s severe impairments meets or

equals one of the impairments listed in Appendix 1 of Subpart P of Part

404 of the relevant regulations;

(4) if not, whether despite the claimant’s severe impairments, the

claimant retains the residual functional capacity [(“RFC”)] to perform

his past work; and

(5) if not, whether the claimant retains the [RFC] to perform any

other work that exists in significant numbers in the national economy.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d

at 467. “The claimant bears the burden of proving his or her case at steps one through

four[;] . . . [a]t step five the burden shifts to the Commissioner to ‘show there is other

gainful work in the national economy [which] the claimant could perform.’” Butts v.

Barnhart, 388 F.3d 377, 383 (2d Cir. 2004) (quoting Balsamo v. Chater, 142 F.3d 75,

80 (2d Cir. 1998)).

ANALYSIS

Plaintiff presents three issues for analysis in her Memorandum of Law. (ECF

No. 7-1.) First, Plaintiff asserts that the A.L.J. failed to fully develop the record upon

learning that Plaintiff purports to have a seizure disorder. (Id. at 18–22.) Second,

Plaintiff contends that because the A.L.J. failed to consider Plaintiff’s seizure

disorder, the A.L.J.’s “step two” analysis was flawed and the A.L.J.’s RFC finding was

unsupported by substantial evidence. (Id. at 22–24.) Finally, Plaintiff argues that

remand is necessary because the A.L.J. improperly weighed the medical opinion of a

consultative physician’s opinion, and in the alternative, that the same consultative

physician’s opinion was unsupported by substantial evidence. (Id. at 24–28.)

The A.L.J.’s Development of the Record

Plaintiff’s first issue presented in this case implicates both the A.L.J.’s duty to

develop the record and the duty of claimants appearing for hearings before the SSA

under the “five-day rule” found in 20 C.F.R. § 416.1435(a). This rule requires that

Plaintiff, as claimant, “submit or inform SSA about written evidence at least five

business days before the date of his or her scheduled hearing.” Jonathan V. v. Comm’r

of Soc. Sec., No. 6:18-CV-1350 (TWD), 2020 WL 1270655, at *3 (N.D.N.Y. Mar. 17,

2020) (citing 20 C.F.R. § 416.1435(a)). Case law regarding the duty of the A.L.J. to

develop the record is clear: “because a hearing on disability benefits is a non-

adversarial proceeding, the ALJ generally has an affirmative obligation to develop

the administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing

Echevarria v. Sec’y of Health & Human Servs., 686 F.2d 751, 755 (2d Cir. 1982)). The

SSA’s regulations reflect this. See 42 U.S.C. § 423(d)(5)(B) (the Commissioner must

“make every reasonable effort to obtain from the individual’s . . . health care

provider[s] all medical evidence, including diagnostic tests, necessary in order to

properly make [his] determination.”) The Second Circuit has held this duty applies

where the claimant is represented. Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999)

(quoting Perez, 77 F.3d at 47.)

The government correctly points out, however, “the [SSA] revised 20 C.F.R.

§ 416.1435(a) to require claimants to [ ] make every reasonable effort to ensure that

the ALJ receives all evidence . . . ‘no later than [five] business days before the date of

the scheduled hearing.’” (Def.’s Mem. of Law at 17, ECF No. 9-1) (quoting the five-

day rule as codified at 20 C.F.R. § 416.1435(a)). The Court also notes that the

applicable SSA regulation places the burden on plaintiffs who have “evidence

required under [20 C.F.R.] § 416.912 but [ ] have missed the deadline” to come forward

with that evidence “if [the A.L.J.] has not yet issued a decision” and to provide one of

the explanations found in 20 C.F.R. §§ 416.1435(b)(1)–(3). See Palmeri v. Saul, No.

18-CV-1182F, 2020 WL 1445260, at *4 (W.D.N.Y. Mar. 25, 2020) (holding that

excusable neglect is inapplicable to cases involving consideration of 20 C.F.R.

§ 404.935 and that the proper review concerning untimely records and evidence is to

consider the exemptions to the five-day rule in 20 C.F.R. §§ 416.1435(b)(1)–(3)).

Finally, the Court notes that the five-day rule was in effect at the time of the hearing

and decision of this case.

Second Circuit trial courts have had occasion to address the tension between

the five-day rule and the A.L.J.’s duty to develop the record. This District recently

treated that issue in Degraff v. Saul, finding that it is a plaintiff’s duty to:

submit or inform the ALJ of any evidence at least five business days

prior to the scheduled administrative hearing . . . . ALJs may decline to

consider records submitted subsequent to a hearing, or alternatively,

decline to attempt to obtain such evidence unless the claimant provides

compelling reasons for late submissions that include being misled by

some agency action, a physical mental, educational, or linguistic

limitation, or “[s]ome other unusual, unexpected, or unavoidable

circumstance beyond [Plaintiff’s] control.”

Degraff v. Saul No. 19-CV-6177F, 2020 WL 3481455, at *5 (W.D.N.Y. June 26, 2020)

(quoting 20 C.F.R. § 416.1435(b)). The Western and Northern Districts have

repeatedly held that records submitted late without one of the exemptions found in

20 C.F.R. §§ 416.1435(b)(1)–(3) need not be considered by the A.L.J. See, e.g., Degraff,

2020 WL 3481455, at *5; Edwards v. Berryhill, No. 17-CV-1247F, 2019 WL 2340953,

at *4 (W.D.N.Y. June 3, 2019) (“an ALJ’s duty to affirmatively develop the record is

discharged when the ALJ agrees to hold the record open to permit the claimant’s

counsel . . . to obtain additional relevant records, with the caveat that if counsel fails

to provide the records within a specified period of time, the ALJ’s decision would be

made based on the existing record”); Shari Lee Z. v. Saul, No. 5:19-CV-0268 (GTS),

2019 WL 6840134, at *7 (N.D.N.Y. Dec. 16, 2019); Arthur L. v. Berryhill, 18-CV-0304,

2019 WL 4395421, at *3-4 (N.D.N.Y June 6, 2019) (“[t]o say that the ALJ was required

to admit and consider this evidence despite the fact that it was not submitted in

compliance with the five-day rule would make that rule an empty vessel that need

not be complied with”) (Steward, M.J.) report and recommendation adopted by 2019

WL 3213229, at *9 (N.D.N.Y. July 17, 2019) (Scullin, J.).

While the Court acknowledges that this may still be a case where any records

of Plaintiff’s alleged seizure disorder need not be considered by the A.L.J., because

the A.L.J. did not discuss in her decision Plaintiff’s testimony about her alleged

seizure disorder, and because the A.L.J. also failed to discuss whether to consider

records and evidence of that alleged seizure disorder, remand is required. See

Jonathan v. v. Comm’r of Soc. Sec., 2020 WL 1270655, at *4–5 (remanding because

the A.L.J. did not consider additional records and did not “address any violations of

the five-day rule or applicable exceptions” concerning them.) At the hearing, Plaintiff

testified that she has been “hospitalized three times” due to seizures, although she

did not specify any timeframe, only that she went to Buffalo General Hospital. (R.

52.) Plaintiff’s counsel and the A.L.J. appeared to agree that there was no diagnosis

of a seizure disorder in Plaintiff’s records. (See id.) Post hoc, Plaintiff has brought to

this Court’s attention a single reference to a history of seizures (R. 609.) Although

Plaintiff had denied seizures on several occasions, including one denial to the

provider who noted the purported history of them only a month later (see R. 607; see

also R. 252, 246–47), this Court cannot be the arbiter of conflicting evidence in the

record. Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (holding that it

is the responsibility of the Commissioner to “weigh the conflicting evidence in the

record.”); see also Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (“[g]enuine

conflicts in the medical evidence are for the Commissioner to resolve.”) For that

reason, and because the A.L.J. failed to address Plaintiff’s seizures in her decision,

including whether to accord Plaintiff’s hearing testimony any weight or to apply the

five-day rule, remand is required. (R. 9–22.) The A.L.J.’s decision only refers to closing

the record and applying the five-day rule regarding records from “the DART clinic.”

(R. 9.) The Court is persuaded here by Jonathan V. v. Comm’r of Soc. Sec., where the

Northern District remanded because there was similarly no evidence that the A.L.J.

weighed (or excluded) additional evidence the plaintiff tried to submit. See 2020 WL

1270655, at *4. Since “remand is particularly appropriate where further findings or

explanation will clarify the rationale for the A.L.J.’s decision,” the appropriate

remedy here is to remand this case for the Commissioner to address the issue of

Plaintiff’s alleged seizure disorder. Steficek v. Barnhart, 462 F. Supp. 2d 415, 418

(W.D.N.Y. 2006) (citing Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996)).

The foregoing errors require reversal and remand. Since remand is required,

the Court need not address the other arguments advanced by Plaintiff in support of

her Motion.

CONCLUSION

For the abovementioned reasons, the Court grants Plaintiff's motion for

judgment on the pleadings (ECF No. 7) and denies the Commissioner’s motion for

judgment on the pleadings (ECF No. 9). Pursuant to the fourth sentence of 42 U.S.C.

§ 405(g), this matter is remanded to the Commissioner for a re-hearing. The Clerk of

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

IT IS SO ORDERED.

Dated: August 31, 2020

Rochester, New York MARK. W. PEDERSEN

United States Magistrate Judge

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