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N.D.N.Y. Remands Two Claims

October 31, 2017

Mike Telfer, Senior Attorney at the Legal Aid Society of Northern New York in Albany, convinced U.S. District Court Glenn Suddaby to order remand in not just one but two appeals in the past two months.

In Bishop o/b/o K.M.B. v. Comm'r of Soc. Sec., 2017 WL 4512163 (N.D.N.Y. Oct. 10, 2017), Judge Suddaby remanded for further proceedings after determining ALJ Robert Wright’s findings regarding functional equivalence were not supported by substantial evidence.  The ALJ did not provide an adequate explanation to allow the court to determine whether his findings regarding the domains of interacting and relating with others and caring for oneself were supported by substantial evidence.

The ALJ found the claimant had a marked limitation in the domain of interacting and relating with others.  But the plaintiff argued evidence of record demonstrated an extreme limitation.  Relying on a teacher questionnaire indicating very serious problems in 10 of 13 listed areas, the court noted the teacher’s opinion “more appropriately would be interpreted as supporting a finding of extreme limitation overall in this domain.”  Judge Suddaby was unwilling to decide whether the overall evidence supports the ALJ’s finding of a marked limitation “due to the ALJ's lack of explanation related to his interpretation of the opinion from K.M.B.'s teacher.”

The ALJ had determined K.M.B. had less than a marked limitation in caring for self, which the plaintiff disputed given the evidence of record.  Judge Suddaby found the ALJ failed to explain how his finding was supported by substantial evidence. Based on a teacher opinion rating six of ten listed areas as very serious problems and one as serious, the court noted “the regulations seem to indicate that these very serious problems would be equivalent to extreme limitations while serious problems would be equivalent to marked limitations.”  According to the court, the teacher questionnaire appeared to suggest a marked limitation.

Judge Suddaby faulted the ALJ for failing to explain how he arrived at his decision to the contrary, or on what contrary evidence he relied. Other than one case manager opinion, the evidence the ALJ cited substantiated fairly significant limitations and did not lead to a conclusion of a less than marked limitation. Nor did the discussion of evidence in the rest of the decision provide an explanation as to the finding of less than marked.

The ALJ also erred in blaming K.M.B.’s mother for failing to ensure her 14-year-old daughter adhered to her medication regime. The analysis should have been whether K.M.B.’s refusal to follow treatment was indicative of self-care skills below the expected standard for her age.  Per Judge Suddaby, “the ALJ's focus on Plaintiff's sometimes willful non-compliance with psychiatric medications and treatment as a factor detracting from the alleged severity of her mental impairment ignores the fact that a refusal to take her medication despite knowing it helped her symptoms could reasonably support a fairly significant deficit in K.M.B.'s self-care abilities.”

As with the other domain, the court held remand was necessary because the ALJ failed to reconcile the very serious limitations imposed by K.M.B.’s teacher with his finding of a less than marked limitation in this domain.  This “harmful error” prevented adequate review.

In Waldvogel v. Comm'r of Soc. Sec., 2017 WL 3995590 (N.D.N.Y. Sept. 11, 2017), Judge Suddaby remanded ALJ John Farrell’s decision for further proceedings based on the ALJ’s failure to consider whether the Medical-Vocational Guidelines should have been applied in a non-mechanical fashion due to Plaintiff's borderline age situation. The plaintiff was approximately two months from her fiftieth birthday at the date of the ALJ's February 2016 decision. The court found the ALJ’s error was not harmless, “as there is a significant likelihood that non-mechanical application would have resulted in a finding of disability as of the date of the ALJ' decision.”

Although Judge Suddaby had not previously faced this issue, he relied on recent cases from the W.D.N.Y. for his decision. [NOTE: Advocates will recall that the Social Security Administration (SSA) recently amended its POMS pertaining to borderline age cases, allowing non-mechanical application of the grid rules only if the claimant would otherwise be denied. See]

Judge Suddaby also clarified the role of the court in reviewing the Appeals Council’s decision in this case. Although it denied review, the Appeals Council issued a notice indicating it had considered the borderline age issue. In considering whether review was warranted, the Appeals Council determined “the factors in the record do not support application of the higher age category.” The court held the Appeals Council's consideration of this issue without granting review was not sufficient to remedy the ALJ's failure to assess the issue.

Because the Appeals Council denied the request for review, Judge Suddaby held that the ALJ's decision was the final Agency decision, citing Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (“Because the Appeals Council denied review in this case, our review focuses on the ALJ's decision.”). The district court distinguished cases in which the Appeals Council considers new and material evidence that had not been reviewed by the ALJ, but nonetheless denies review. Citing Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996), Judge Suddaby noted that in those situations, the final decision Agency decision would necessarily include the Appeals Council’s conclusion that the ALJ’s decision remained correct despite the new evidence. But in this instance, where the ALJ had the opportunity to consider the specific issue of borderline age, the court found it would be inconsistent with the administrative appeals structure and definition of “final Agency decision” to consider the Appeals Council decision the final decision subject to review. Judge Suddaby thus concluded the ALJ’s legal error necessitated remand.

Congratulations to Mike for these victories.


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