Orben v. SSA CV-01-186-M 01/15/02 P
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kimberly Orben, on behalf of
her minor son, Chad Jasperson,
Claimant
v. Civil No. 01-186-M
Opinion No. 2002 DNH 005
Jo Anne B. Barnhart, Commissioner,
Social Security Administration,
Defendant
O R D E R
Kimberly Orben moves to reverse the Commissioner's denial of
her son's application for children's Supplemental Security
Insurance disability benefits. See 42 U.S.C. §§ 405(g) and
1383(c)(3) (the "Act"). Among other things, she says the
Administrative Law Judge who authored the Commissioner's final
decision did not explain the bases for that decision with
sufficient specificity, and he misread the evidence of record.
Respondent objects and moves for an order affirming the final
decision of the Commissioner.
Factual Background
I. Procedural History.
Orben filed an application for Supplemental Security Income
benefits on behalf of her son, Chad, with a protective filing
date of July 23, 1997. The application represented that Chad was
born on October 19, 1992, and had been disabled since August 16,
1993. It was denied both initially and on reconsideration.
Claimant then filed a timely request for a hearing before an
Administrative Law Judge.
On August 26, 1998, an ALJ conducted a hearing at which Ms.
Orben testified. She was represented by counsel and accompanied
by Chad's step-father, Douglas Orben (who did not testify).
Chad, who was six years old at the time, was not present. On
November 8, 1998, the ALJ issued his decision, in which he
concluded that Chad was not disabled within the meaning of the
Act and, therefore, was not entitled to SSI benefits. At that
point, claimant supplemented the record with new evidence tending
to show that Chad was disabled and, in light of that new
evidence, asked the Appeals Council to review the ALJ's adverse
2
disability determination. The Appeals Council denied claimant's
request for review.
Parenthetically, while the Appeals Council declined to
"review" the ALJ's disability determination in the technical
sense of the term, it necessarily "reviewed" or examined the
record evidence as well as the ALJ's ultimate conclusions, in the
ordinary sense, prior to reaching that decision. As the Council
noted in its letter to Ms. Orben, it may only "review" an ALJ's
decision if it is persuaded that:
(1) there appears to be an abuse of discretion by the
Administrative Law Judge; (2) there is an error of law;
(3) the Administrative Law Judge's action, findings, or
conclusions are not supported by substantial evidence;
or (4) there is a broad policy or procedural issue
which may affect the general public interest.
Transcript at 6. Consequently, in declining claimant's request
that it "review" the ALJ's decision, the Appeals Council examined
the record and the ALJ's decision and concluded, among other
things, that the decision was supported by substantial evidence
in the record (necessarily including the supplemental evidence
presented after the ALJ made his decision). See, e.g., Perez v.
Chater, 77 F.3d 41, 45 (2d Cir. 1996) ("even when the Appeals
3
Council declines to review a decision of the ALJ, it reaches its
decision only after examining the entire record, including the
new evidence submitted after the ALJ's decision.").
Following the Appeals Council's decision not to "review" the
ALJ's adverse disability determination, claimant filed this
action and moved the court to reverse the Commissioner's
decision. The Commissioner objects and seeks to have his final
decision affirmed.
II. Stipulated Facts.
Pursuant to Local Rule 9.1(d), the parties have submitted a
comprehensive statement of stipulated facts which, because it is
part of the court's record (document no. 9), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. Properly Supported Findings by the ALJ are
Entitled to Deference.
Pursuant to 42 U.S.C. § 405(g), the court is empowered "to
enter, upon the pleadings and transcript of the record, a
4
judgment affirming, modifying, or reversing the decision of the
Commissioner, with or without remanding the cause for a
rehearing." Factual findings of the Commissioner are conclusive
if supported by substantial evidence. See 42 U.S.C. §§ 405(g),
138 3 (c)(3); Irlanda Ortiz v. Secretary of Health and Human
Services,
955 F.2d 765, 769 (1st Cir. 1991).1
In making factual findings, the Commissioner must weigh and
resolve conflicts in the evidence. See Burgos Lopez v. Secretary
of Health and Human Services, 747 F.2d 37, 40 (1st Cir. 1984)
(citing Sitar v. Schweiker,
671 F.2d 19, 22 (1st Cir. 1982)). It
is "the responsibility of the [Commissioner] to determine issues
of credibility and to draw inferences from the record evidence.
Indeed, the resolution of conflicts in the evidence is for the
[Commissioner], not the courts." Irlanda Ortiz,
955 F.2d at 769.
Accordingly, where credibility determinations are supported by
specific findings, the court will afford them substantial
1 Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). It is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency's finding
from being supported by substantial evidence. Consolo v. Federal
Maritime Comm'n.,
383 U.S. 607, 620 (1966) .
5
deference. See Frustaqlia v. Secretary of Health and Human
Services, 829 F.2d 192, 195 (1st Cir. 1987) (citing Da Rosa v.
Secretary of Health and Human Services,
803 F.2d 24, 26 (1st Cir.
1986)).
II. Entitlement to Children's Disability Benefits.
In August of 1996, prior to claimant's having filed an
application for benefits on behalf of Chad, the President signed
into law the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (the "PRWORA"), which included a new
(more rigorous) standard for defining childhood disabilities
under the Social Security Act.
An individual under the age of 18 shall be considered
disabled for the purposes of this subchapter if that
individual has a medically determinable physical or
mental impairment, which results in marked and severe
functional limitations, and 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. § 1382c (3) (C) (i) . See also 20 C.F.R. § 419.906.
In evaluating a child's application for SSI benefits, an ALJ
must engage in a three-part inquiry and determine whether: (1)
6
the child is engaged in substantial gainful activity; (2) the
child has an impairment or combination of impairments that is
severe; and (3) the child's impairment meets or equals an
impairment listed in Appendix 1, Subpart P of the regulations.
20 C.F.R. §§ 416.924(b)- (d). If, at the third step of the
analysis, the ALJ determines that the child's impairment does not
meet or equal a listed impairment, the ALJ must then consider
whether the child's impairment is equivalent in severity to that
of a listed impairment (i.e., whether it "results in limitations
that functionally equal the listings").
20 C.F.R. § 416.926a(a).
In this case, at step three of the sequential analysis, the
ALJ concluded that Chad's impairments did not meet, and were not
medically or functionally equal in severity to, a listed
impairment. Accordingly, he concluded that Chad was not disabled
within the meaning of the Act.
Discussion
I. Record Evidence Not Presented to the ALJ, But Submitted to
the Appeals Council.
This case presents an issue that has been discussed by
nearly all of the courts of appeals, and one recently addressed
7
by the First Circuit: how new and relevant evidence proffered by
the claimant after the ALJ issues his or her opinion denying
benefits, but prior to the Appeals Council's refusal to "review"
that decision, should be considered (if at all) upon judicial
review. Neither party has identified or addressed that critical
issue. But, because the question is one of law, and given the
importance of resolving this proceeding in as timely a manner as
is reasonably possible, the court concludes that additional
briefing by the parties will not be required.
In Mills v. Apfel, 244 F.3d 1 (1st Cir. 2001), cert. denied,
S.Ct. __,
2002 WL 13365 (Jan. 7, 2002), the court of appeals
for this circuit noted that other circuits had addressed the
supplemental evidence issue in two distinct ways:
We begin with the most difficult [issue], which
concerns the evidence tendered to the Appeals Board
after the ALJ decision. Because the Appeals Board
"denied review" (at least nominally), the Commissioner
says that we may review only the ALJ decision, judging
it solely on the evidence presented to the ALJ. Four
circuits have taken this position, at least in part; by
contrast, five circuits say that judicial review tests
all evidence submitted to the ALJ and the Appeals
Council, even if the latter declines to review the ALJ
decision.
Id., at 4 (emphasis in original). Finding both positions
deficient, the court fashioned a distinct rule for application in
this circuit. In creating that rule, the court observed that the
Social Security Act "permits review of the 'final decision of the
Commissioner' without specifying components."
Id., at 5.
Building upon that observation, the Mills court appears to have
held that, when reviewing the final decision of the Commissioner
denying a claimant's application for Social Security benefits
under circumstances such as those presented in this case (i.e.,
when material supplemental evidence is presented to the Appeals
Council), a district court must engage in a two-step inquiry,
evaluating each of the "components" of the Commissioner's final
decision.
First, the court reviews the ALJ decision, but the scope of
that review is limited: it must be based "solely on the evidence
presented to the ALJ." Id. Presumably, that review remains
subject to the familiar "supported by substantial evidence in the
record" test. See
42 U.S.C. § 405(g). Next, applying a far more
deferential standard of review, the court examines the Appeals
Council's refusal to review the decision issued by the ALJ,
9
asking whether the Appeals Council gave "an egregiously mistaken
ground for this action." Mills, 244 F.3d at 5.
At least in this circuit, then, the final decision of the
Commissioner is comprised of two components: the ALJ's written
decision and the Appeals Council's response to a claimant's
request for review. And, decisions of the Appeals Council
declining review, in turn, fall into one of two categories: those
that give an explanation for declining review, and those that
give none at all. The court of appeals noted that in those cases
where no ground or reason is given by the Appeals Council, its
decision is "effectively unreviewable." Id., at 6. If it is
apparent, however, that "the Appeals Council mistakenly rejected
the new evidence on the ground that it was not material, ... a
court ought to be able to correct that mistake." Id.2
2 By adopting the view that the final decision of the
Commissioner is comprised of two distinct "components," the Mills
opinion somewhat complicates the analysis that must be undertaken
in situations such as this. The Social Security Act makes plain
that the district court must simply determine whether the "final
decision of the Commissioner" is legally correct and "supported
by substantial evidence" in the record. 42 U.S.C. § 405(g). The
Supreme Court has, in turn, observed that, when the Appeals
Council denies the claimant's request for review, "the ALJ's
opinion becomes the final decision" of the Commissioner. Sims v.
A p fe1 ,
530 U.S. 103, 107 (2000) . And, finally, the pertinent
regulations make clear that supplemental evidence provided to the
10
While the merits of the Mills rule are certainly debatable,
there can be no doubt as to what it is, or that it applies in
this circuit. Applying the Mills rule to this case, then, it is
plain that the Appeals Council made a serious mistake in denying
review of the ALJ's decision based upon the record before it,
including the new evidence submitted by the claimant. It is
Appeals Council constitutes part of the administrative record.
See Id., at 111 (citing
20 C.F.R. § 404.970(b)). See also Mills,
244 F.3d at 4. Thus, the judicial review function should be
relatively straightforward: determine whether the final decision
of the Commissioner (i.e., the opinion written by the ALJ) is
legally correct and supported by substantial evidence in the
entire record presented to the Commissioner (regardless of what
evidence was actually presented to the ALJ at an interim step in
the administrative process).
Although raised as a potential concern in Mills, the court
need not ask "how likely is it that this [supplemental] evidence
would [have] alter[ed] the result if it had been before the ALJ."
Mills, 244 F.3d at 4. That is never a question asked by the
district court (consider, for example, the situation in which an
ALJ errs by failing to adequately develop the record by
neglecting to solicit material testimony from a claimant).
Instead, the court would focus on the entire record that was
before the Commissioner and ask whether her final decision (as
written by the ALJ) is supported by substantial evidence in that
record (or, stated somewhat differently, whether, in light of the
supplemental evidence presented by the claimant, the Commissioner
was justified in allowing the ALJ's decision to become her own
"final decision"). Because the court's focus must, by statute,
be on the Commissioner's final decision, it does not seem
inappropriate to assess that decision in light of all the
evidence that was made available to her.
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equally clear that the Appeals Council gave an egregiously
mistaken ground for declining "review."
The supplementary evidence submitted by claimant was not
only starkly inconsistent with the ALJ's determination, but
substantially undermined it. The Appeals Council's denial of
review on grounds that the supplemental evidence did not "provide
a basis for changing the Administrative Law Judge's decision,"
transcript at 6, constituted an egregious mistake, as explained
below.
II. Evidence of Chad's Disability.
A. "Mild" vs. "Severe" Tourette Syndrome.
Chad was four years old when an application for SSI benefits
was filed on his behalf and six years old at the time of the
ALJ's decision. By then he had been diagnosed with the following
disorders: lead poisoning; oppositional defiant disorder;
attention-deficit/hyperactivity disorder ("ADHD"); obsessive
compulsive disorder ("OCD"), which included behaviors such as
compulsive hand washing and toy washing; and Tourette syndrome,
which manifested itself in various ways over the years, but
12
included eye, facial, and violent head tics, vocal tics (e.g.,
stuttering, grunting, hissing, snorting, growling), and
copropraxia (in Chad's case, involuntarily "giving the finger" to
people). Standardized testing suggests that he is of low to
borderline intelligence.
Claimant says the ALJ erroneously interpreted and/or failed
to adequately consider (and discuss) record evidence that
supported a finding of disability. First, she says the ALJ erred
in concluding that "Chad has also been diagnosed with . . . mild
Tourette's Syndrome." Transcript at 16 (emphasis supplied).
Claimant concedes that Chad's treating pediatric neurologist. Dr.
Woods, initially diagnosed a mild form of Tourette Syndrome when
she first examined him in February, 1988. See Transcript at 277
(concluding that Chad "may have a mild form of Tourette
syndrome," but observing that she would "have a better idea about
Chad's tic diagnosis, whether he truly has Tourette or not, as
the year progresses."). In subsequent medical notes, however.
Dr. Woods repeatedly refers to Chad's condition simply as
Tourette syndrome (i.e., without the "mild" modifier). See,
e.g.. Transcript at 284, 286. By June of 1998, Dr. Woods had
13
concluded that Chad suffered from "Tourette syndrome with ADHD
. . . [which] significantly and adversely affect his ability to
function in an educational setting." Transcript at 286.
By December of 1998, the profound nature of Chad's illness
had become even more apparent to Dr. Woods. After having had the
opportunity to monitor Chad's behavior and development for
approximately 10 months. Dr. Woods concluded that he suffered
from "severe Tourette syndrome with associated ADHD [attention
deficit and hyperactivity disorder] and OCD [obsessive compulsive
disorder]." Transcript at 304 (emphasis supplied). Dr. Woods'
December progress notes were not, however, presented to the ALJ.
Instead, they were submitted to the Appeals Council, after the
ALJ issued his decision and prior to its determination that there
was no basis to "review" the ALJ's decision.
In light of the record evidence, particularly the most
recent notes from Chad's treating neurologist, it is manifestly
clear that the record evidence does not support the conclusion
that Chad suffers from "mild" Tourette syndrome. While it would
be unfair to criticize the ALJ's conclusion in that regard, since
14
he did not have the benefit of all the evidence presented to the
Appeals Council, the Council's decision not to "review" the ALJ's
disability determination in light of that evidence is more
difficult to explain or justify.
B. Chad's Obsessive-Compulsive Behavior.
Next, claimant challenges the ALJ's conclusion that "there
is no mention in the medical records of obsessive-compulsive type
activity." Transcript at 17. To be sure, as claimant points
out, the record contains several references to Chad's compulsive
behavior (including, for example, compulsive hand washing and toy
washing) and repeated notes from Dr. Woods in which she diagnosed
Chad as suffering from Tourette syndrome "with associated OCD
[obsessive-compulsive disorder] tendencies and behaviors
consistent with ADHD." Transcript at 300. See also id., at 302
(same), 304 ("severe Tourette syndrome with associated ADHD and
OCD"), and 306 ("Chad is a complex six-year old boy [who] has a
two year history of Tourette syndrome with multiple motor and
vocal tics. Chad has [a] combined diagnoses of ADHD and OCD.
Chad has ongoing severe problems with impulse control.").
15
Again, however, that evidence was not presented to the ALJ.
Consequently, he cannot be criticized for observing that "there
is no mention in the medical records of obsessive-compulsive type
activity." Transcript at 17. The record on which the ALJ based
his decision did not contain any references to OCD. The record
before the Appeals Council, as supplemented by claimant after the
ALJ's decision, did, however, include repeated references to
Chad's compulsive behavior and OCD. That evidence plainly
reveals that Chad suffers from obsessive-compulsive behavior
that, no doubt, would have had a substantial impact on the ALJ's
disability determination. Had the ALJ had access to that medical
information, he plainly would have realized Chad was not simply a
young boy with "mild" Tourette Syndrome and some behavioral
problems, but instead suffered from severe Tourette Syndrome and
was diagnosed with both OCD and ADHD (as well as several other
ailments or illnesses).
C. Chad's Prescription Medications.
Claimant also challenges the ALJ's conclusion regarding the
prescription medications that Chad was taking. Although the ALJ
acknowledged that Chad was taking Clonidine daily, he apparently
16
discounted Ms. Orben's testimony on the subject and found that
there was no evidence in the record to support her claim that
Chad was also taking other prescription medications.
Specifically, the ALJ concluded that, "Ms. Orben also stated that
Chad takes Ritalin, Paxil, and Prozac but there is no evidence in
file of these being prescribed." Transcript at 17. But there
actually is support in the record presented to the ALJ for Ms.
Orben's claim that Chad was prescribed Ritalin and Prozac. See,
e.g.. Transcript at 262, 276. And, as before, the supplemental
medical records provided to the Appeals Council clearly disclose
that Chad had been prescribed (and suffered ill side-effects
from) several prescription medications, including Ritalin, Paxil,
Prozac, Risperdal, and Nortriptyline. See Transcript at 300,
302, 304, 305.
Consequently, the ALJ appears to have had a mistaken
understanding of the prescription medications that Chad was
taking and, presumably, the substantial adverse side effects they
had upon him. That oversight might easily be explained, since
the references in the record before the ALJ to Chad's
prescription medications (and their side-effects) were few and
17
did not stand out in the voluminous record. The Appeals Council,
however, had the benefit of materials that much more clearly
listed and highlighted the many medications that Chad was
currently taking or had previously been prescribed.
D. Chad's Social Worker's Disability Assessment.
Finally, claimant challenges the ALJ's failure to adequately
discuss what she considers to be substantial record evidence
supportive of her claim that Chad is disabled. That is to say,
claimant says the ALJ focused almost exclusively on evidence
suggestive of no disability, and ignored or improperly discounted
evidence that suggested Chad was, in fact, disabled.
For example, claimant challenges the ALJ's failure to
discuss Chad's scores on two global assessments of functioning
(GAF) tests, on which Chad received scores of 45 (October, 1996)
and 48 (July, 1998) . Transcript at 245, 290. The parties agree
that, according to the Diagnostic and Statistical Manual of
Mental Disorders (4th ed. 1994) (also known as "DSM-IV"), Chad's
test results demonstrate that he suffers from serious impairments
in social, occupational, or school functioning. See Joint
18
Statement of Material Facts at 4, n.l. The ALJ's decision does
not discuss those test results.
Claimant also asserts that the ALJ erroneously discounted
the opinion of Karla Tolomeo, MSW, Chad's councilor from
Manchester Mental Health, who opined that Chad suffered from
"marked limitations" in all areas of functioning (i.e., cognitive
function, motor function, social function, personal function, and
concentration). Although he acknowledged Ms. Tolomeo's opinion,
the ALJ concluded that it was "not substantiated by ongoing
treatment notes," Transcript at 21, and was inconsistent with,
among other things, the opinions of Chad's treating neurologist.
Dr. Woods. The record does, however, contain Ms. Tolomeo's
treatment notes (as well as those from other counselors at
Manchester Mental Health), which document the treatment sessions
she conducted with Chad over the course of approximately eight
months and provide at least some support for her conclusions
regarding his ability to function. See Transcript at 247-54,
288-95. The ALJ did not, however, discuss those notes (or
explain why he did not consider them relevant).
19
Additionally, the medical progress notes prepared by Chad's
treating neurologist. Dr. Woods, and submitted to the Appeals
Council, provide substantial support for Ms. Tolomeo's opinions.
Plainly, the ALJ cannot be faulted in any respect for having
failed to consider evidence that was never presented to him. The
Appeals Council, however, had the benefit of that evidence and,
nevertheless, declined to act. As the Supreme Court has
observed. Social Security proceedings are inguisitorial rather
than adversarial and it is no less the obligation of the Appeals
Council than the ALJ to consider and develop arguments both for
and against granting benefits. See Simms v. Apfel, 530 U.S. 103,
110-111 (2 0 0 0 ).
III. Evaluating the Appeals Council's Decision.
For the reasons discussed above, the court cannot conclude
that the ALJ's decision lacks substantial support in the record
as presented to him. That conclusion does not, however, end the
court's inquiry. As mandated by Mills, the court must next
determine whether the Appeals Council's refusal to "review"
(i.e., vacate, alter, or remand) the ALJ's decision was
"egregiously mistaken." Mills, 244 F.3d at 5.
20
Even applying that very deferential standard of review, the
court concludes that the Appeals Council's determination that
"there is no basis . . . for granting your request for review,"
transcript at 6, was an "egregious error" and "a serious
mistake." Mills, 244 F.3d at 5-6. Largely through no fault of
the ALJ, the Commissioner's final decision is "contrary to the
weight of the evidence currently of record."
20 C.F.R. §
416.1470(b) (emphasis supplied). In light of the evidence
available to the Appeals Council, the decision not to "review"
the ALJ's disability determination cannot be sustained.3
3 The opinion in Mills provides little guidance regarding
what constitutes an "egregious error." Nevertheless, while
obviously not binding precedent, an unpublished opinion of the
court of appeals provides some hint. In Brunei v. Commissioner,
Social Security Administration, No. 00-1142, 2000 WL 1815946 (1st
Cir. Dec. 11, 2000), the court concluded that an ALJ committed an
"egregious" error when he "cited the claimant's treating doctor's
RFC evaluation in support of his own RFC findings, while
ignoring, without any explanation, that part of the doctor's
evaluation which indicated that claimant's capacity for sedentary
work was significantly compromised."
Id., at *2. Similarly, in
this case, the Appeals Council's failure to review the ALJ's
decision in light of the compelling new evidence before it - an
error of substantially greater dimension than that identified in
Brunei - was also "egregious."
21
As observed in Mills, "The ALJ has not 'made a mistake' by
ignoring new evidence that was never presented to him. However,
the Appeals Council may have 'made a mistake' in refusing to
consider new evidence presented to it, depending on the ground it
gave." Id., at 5.4 Here, the Appeals Council concluded that,
even considering the newly submitted evidence, the ALJ's
disability determination was not "contrary to the weight of the
evidence currently of record." Transcript at 6. It was. That
error was sufficiently egregious to warrant remand. See Mills
244 F.3d at 5-6. At a minimum, the ALJ should be afforded the
opportunity to revisit his disability determination in light of
the compelling evidence claimant provided to the Appeals Council,
but which the ALJ never had the chance to review.
Conclusion
The Commissioner's motion for an order affirming the
Commissioner's decision (document no. 8) is denied. Claimant's
4 Strictly speaking, of course, the Appeals Council did
not "refus[e] to consider [the] new evidence presented to it."
Instead, notwithstanding its presumed consideration of that new
evidence, the Council concluded that there was no basis for it to
vacate, amend, or remand (i.e., "review") the ALJ's disability
determination.
22
motion for an order reversing the Commissioner's decision
(document no. 7) is granted to the extent claimant seeks a
remand. Pursuant to sentence four of 42 U.S.C. § 405(g), the
final decision of the Commissioner is vacated and the case is
remanded for further proceedings consistent with this decision.
The Clerk of Court shall close the case.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
January 15, 2002
cc: Raymond J. Kelly, Esq.
David L. Broderick, Esq.
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