The Second Circuit Speaks

May 1, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

When the Second Circuit Court of Appeals speaks, we all tend to lend an ear and listen closely. We wish, though, that we heard better news of late. The Circuit Court issued three unfavorable decisions so far in 2009.

In January, the court issued a decision in Brown o/b/o JK v. Astrue, 2009 WL 59167, affirming a Northern District of New York ruling by District Court Judge Gary Sharpe. In this child’s SSI case, the parent argued that the Administrative Law Judge (ALJ) failed to find that the child’s learning disorder was a severe impairment and that the child’s combined impairments were functionally equal to a Listing.  The child also suffered from ADHD, obesity and migraine headaches. Although the Court of Appeals agreed that the ALJ erred in finding that the learning disorder was not severe, the Court found that a remand was not required because the learning disorder was only relevant to the domain of acquiring and using information, not to the domain of attending and completing tasks.

The Court noted, “JK’s learning disorder affects his ability to read, not his ability to attend to tasks. Therefore, the ALJ’s possible failure to consider the impact of JK’s learning disorder did not infect his consideration of whether JK had a ‘marked’ limitation in attending and completing tasks.” The Court went on to find that the substantial evidence supported the ALJ’s finding of a less than marked limitation in this domain, citing a school psychologist’s observations and a consultative psychologist’s report.

One hopes that the fact that this was a summary order will lessen its precedential value.  Also it was issued before the publication of SSA’s new childhood Social Security Rulings (SSRs) discussed at length in the March 2009 edition of Disability Law News.  Those SSRs emphasize, contrary to the court’s opinions, the extent to which one impairment can affect several domains.

In April, the Second Circuit issued a decision in Poupore v. Astrue, ---F.3d----, 2009 WL 1011685, affirming, on rehearing, a Northern District of New York decision from Magistrate David Peebles denying Social Security disability benefits. The Court agreed with the ALJ’s decision that Mr. Poupore had the residual functional capacity for light work, although the Court cited evidence from a treating source that indicated an ability “to perform a sedentary, light-duty job, which would involve sitting most of the time, but allow Poupore to get up and move around from time to time if necessary.”

The Second Circuit also adopted the government’s argument that regulations issued in 2003 [20 C.F.R. §404.1560(c)(2)] abrogated the Court’s previous decision in Curry v. Apfel, 209 F.3d 117 (2d Cir. 2000), clarifying that there is only a limited burden shift to the Commissioner of SSA at step five of the sequential evaluation: the Commissioner need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant’s residual functional capacity (RFC).

The Court rejected arguments about the weight to be given to treating source evidence.  It also found that subjective complaints of pain were unsupported by objective medical evidence and inconsistent with Mr. Poupores’s daily activities such as caring for his one-year-old child, including changing diapers, “sometimes” vacuuming and washing dishes, occasionally driving, watching television, reading and using the computer, and therefore not fully credible.

In the last of the trilogy of recent cases, Lamay o/b/o KPD v. Astrue, 562 F.3d 503 (2d Cir. 2009), the Second Circuit issued a decision in April concluding that the statutory disclosures mandated by the Social Security Act with respect to the right to counsel may be salutary, but are not required.  This case involved an unrepresented parent at a hearing on a child’s SSI claim. After the claim was denied, the parent argued at the District Court that she did not make a knowing and voluntary waiver of her right to be represented because the ALJ did not advise her of the availability of legal services organizations available to assist her, or the possibility of a contingency arrangement with private counsel.

Magistrate Peebles of the Northern District of New York issued a Report and Recommendation (R&R) finding that the parent had knowingly and voluntarily waived her right to representation, and affirming the Commissioner’s determination of no disability. District Court Judge Sharpe adopted the R&R in full. Both the Magistrate and District Court judge observed that the Second Circuit had not adopted or rejected the enhanced disclosure requirements set out in Frank v. Chater, 924 F.Supp. 416 (E.D.N.Y. 1996).

The Second Circuit took the opportunity to disagree with the Fifth, Seventh and Eleventh Circuits and concluded that the additional disclosures set out in those Circuit Court decisions, and in the Frank decision, were not mandatory. It concluded that the language of 42 U.S.C. §§406(c) and 1383(d)(2)(B/D) did not require such disclosures, and those cases were decided before the cited statutes were in effect. The Court determined that the applicable cases appeared “to have been no more than judicially created attempts to ensure, in the absence of statutory instruction, that a waiver of the right to counsel was knowing and voluntary.” 562 F.3d at 508.  The Court also noted that since the Second Circuit recognized a “heightened duty” on the part of the ALJ to fully develop the record where a claimant proceeds pro se, “the limited, yet clear, requirements for notification enacted by Congress seems both sensible and likely adequate.” 562 F.3d at 509.

The Circuit Court went on to hold, in a footnote, that the information given to the pro se parent in the Lamay case was sufficient to meet the statutory requirements. The panel also decided that the claimant suffered no prejudice from proceeding pro se because the ALJ fulfilled his heightened duty to develop the record.

Each of these decisions is disturbing to those of us who represent claimants in these cases, especially the Lamay ruling. In an effort to make lemonade out of these lemons, we should take the opportunity to turn these adverse decisions into learning occasions for how to build and present our cases at hearings: good decisions turn on good facts; good facts come from adequate development and presentation; and good administrative records give us a better shot at winning arguments. But sometimes, it all comes down to the luck of the draw.  Keep listening for more developments on these issues.