Opinion
1:22-cv-03554-VEC-GRJ
05-22-2023
GLADYS G., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
Gary R. Jones United States Magistrate Judge
Plaintiff Gladys G.was awarded Supplemental Security Income benefits under the Social Security Act as a child. In November of 2013, when Plaintiff turned 18, the Commissioner of Social Security determined that she was no longer disabled under the Act and discontinued benefits. Plaintiff, represented by James M. Baker, Esq., commenced this action seeking judicial review of the Commissioner's discontinuance of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a Report and Recommendation on March 17, 2023. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket Nos. 12, 20).
For the following reasons, it is recommended that Plaintiff's motion should be granted, the Commissioner's motion should be denied, and this matter remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
In or about January of 2008, Plaintiff was awarded SSI benefits as a child based on an application filed by her mother. (T at 111-17, 587).In 2014, Plaintiff turned 18, and the Commissioner conducted a redetermination review, finding that she no longer qualified for benefits. (T at 45-47, 405-28). Plaintiff sought review, which was denied initially and on reconsideration.
Citations to “T” refer to the administrative record transcript at Docket No. 10.
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on September 23, 2015, before ALJ Thomas Grabeel. (T at 24-44).
On October 27, 2015, ALJ Grabeel issued a decision finding that Plaintiff's disability ended on November 13, 2013, and concluding that she had not become disabled within the meaning of the Social Security Act since that date. (T at 7-23). The Appeals Council denied Plaintiff's request for review on February 14, 2017. (T at 1-5).
Plaintiff sought review in the United States District Court for the Southern District of New York. On October 26, 2017, the Honorable Debra Freeman, Chief United States Magistrate Judge, approved a stipulation remanding the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405 (g). (T at 586).
A further administrative hearing was held on October 31, 2018, before ALJ Gitel Reich. (T at 588-613). Plaintiff appeared pro se and testified. (T at 591-96, 602, 604, 607-611). Plaintiff's mother also testified. (T at 597-601, 603-604, 605). Dr. Chukwuemeka Efobi, a medical expert, appeared, but declined to offer an opinion based on the record before him. (T at 606-607).
B. ALJ's Decision
On November 5, 2019, ALJ Reich issued a decision finding that Plaintiff's disability ended on November 13, 2013, and concluding that she had not become disabled again since that date. (T at 513-31).
The ALJ found that Plaintiff's major depressive disorder, asthma, and lumbar degenerative disc disease were severe impairments, as defined under the Act, since November 13, 2013. (T at 518).
However, the ALJ concluded that, since November 13, 2013, Plaintiff had not had an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 518).
The ALJ then determined that, since November 13, 2013, Plaintiff retained the residual functional capacity (“RFC”) to perform medium work, as defined in 20 CFR 416.967 (c), with the following limitations: she can have only occasional exposure to respiratory irritants and can perform simple, routine work involving no more than occasional contact with coworkers, supervisors, and the public. (T at 520).
The ALJ found that Plaintiff had no past relevant work. (T at 524). Considering Plaintiff's age (18 years old on November 13, 2013), education (limited, but able to communicate in English), work experience (no past relevant work), and RFC, the ALJ determined that, since November 13, 2013, there have been jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 524).
As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between November 13, 2013 (the date her disability ended), and November 5, 2019 (the date of the ALJ's decision). (T at 525).
On March 30, 2022, the Appeals Council denied Plaintiff's request for review, making ALJ Reich's decision the Commissioner's final decision. (T at 507-12).
C. Procedural History
Plaintiff commenced this action, pro se, by filing a Complaint on May 3, 2022. (Docket No. 1). The Commissioner filed a motion for judgment on the pleadings, supported by a memorandum of law, on September 30, 2022. (Docket No. 12, 13). Plaintiff, now represented by counsel, filed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on December 7, 2022. (Docket No. 20, 21). On January 27, 2023, the Commissioner submitted a reply memorandum of law in further support of her motion. (Docket No. 24). Plaintiff filed a reply memorandum of law on February 28, 2023. (Docket No. 27). The matter was assigned to the undersigned for a Report and Recommendation on March 17, 2023.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “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).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:
1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.
3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.
4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises three challenges to the ALJ's decision. Her primary challenge is to the ALJ's Listings analysis. She also contends that the ALJ's assessment of her physical limitations is not supported by substantial evidence. Plaintiff further argues that the ALJ's process for obtaining vocational expert testimony was flawed. This Court will address each argument in turn.
A. Listings
At step three of the sequential evaluation, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals an impairment listed in Appendix 1 of the Regulations (the “Listings”). See 20 C.F.R. §§ 404.1520(d), 416.920(d).
If a claimant meets or equals a listed impairment, she is “conclusively presumed to be disabled and entitled to benefits.” Bowen v. City of New York, 476 U.S. 467, 471, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). “The claimant bears the burden of establishing that his or her impairments match a Listing or are equal in severity to a Listing." Henry v. Astrue, 32 F.Supp.3d 170, 182 (N.D.N.Y. 2012) (citing Naegele v. Barnhart, 433 F.Supp.2d 319, 324 (W.D.N.Y.2006)).
Here, the ALJ found that, since November 13, 2013, Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the Listings. (T at 518).
In particular, the ALJ concluded that the severity of Plaintiff's physical impairments, considered singly and in combination, did not meet or medically equal the criteria of any of the Listings for musculoskeletal disorders (1.04, 3.03, 4.04, and 12.06). (T at 519).
The ALJ further found that Plaintiff's mental impairment did not meet or medically equal the criteria for Listing 12.04. (Depressive, bipolar, and related disorders).
Plaintiff argues that the ALJ erred by failing to consider whether the requirements of Listing 12.05 (B) (Intellectual disorder) had been satisfied.
To meet that Listing, a claimant must have (1) significantly subaverage general intellectual functioning, which can be established by a full-scale IQ score of 70 or below; (2) significant deficits in adaptive functioning manifested by extreme limitation in one, or marked limitation in two, of the domains of mental functioning: understanding, remembering, or applying information; interacting with others; maintaining concentration, persistence, and pace; and adapting or managing oneself; and (3) evidence that the disorder began prior to the claimant attaining the age of 22.
In November of 2005, when Plaintiff was 10 years old, she attained a full-scale IQ of 65. (T at 239). In November of 2007, when Plaintiff was 12, she attained a full-scale IQ of 57. (T at 260). In July of 2018, when Plaintiff was 27, she attained a full-scale IQ of 53. (T at 728). Thus, there is no dispute that Plaintiff satisfies the first and final components of Listing 12.05 (B).
The critical question is, thus, whether there is extreme limitation in one, or marked limitation in two, of the domains of mental functioning: understanding, remembering, or applying information; interacting with others; maintaining concentration, persistence, and pace; and adapting or managing oneself.
The Court's review of this issue is hampered by the ALJ's failure to address this Listing specifically and failure to address Plaintiff's intellectual deficits more generally.
An ALJ must provide an adequate "roadmap" for her reasoning. The failure to do so deprives the Court of the ability to determine accurately whether her opinion is supported by substantial evidence. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (noting that “the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence”).
In other words, it is the ALJ's responsibility to “build an accurate and logical bridge from the evidence to her conclusion to enable meaningful review.” Horton v. Saul, 19-CV-8944, 2021 WL 1199874, at *12 (S.D.N.Y. March 30, 2021) (quoting Hamedallah ex rel. E.B. v. Astrue, 876 F.Supp.2d 133, 142 (N.D.N.Y. 2012)).
Here, the ALJ failed to do so. Specifically, the ALJ did not mention Listing 12.05, let alone provide an analysis as to whether Plaintiff's impairments met or medically equaled that Listing. The ALJ further failed to even reference the IQ score and did not address whether Plaintiff had a medically determinable (or severe) intellectual impairment.
The Commissioner contends that the ALJ's decision can be sustained because the ultimate conclusion that Plaintiff does not satisfy Listing 12.05 is supported by two medical opinions of record.
Dr. V. Reddy, a non-examining State Agency review consultant, provided an assessment of Plaintiff's mental impairments in November of 2013. Dr. Reddy diagnosed a learning disability. (T at 406). The checkbox evaluation form contained a section related to Listing 12.05. Dr. Reddy did not indicate that this Listing was met or medically equaled. (T at 409). Dr. Reddy assessed mild restriction in Plaintiff's activities of daily living; no difficulties in her ability to maintain social functioning; moderate limitation in maintaining, concentration, persistence, or pace; and no evidence of repeated episodes of deterioration. (T at 415).
In the narrative portion of the report, Dr. Reddy opined that the “[o]verall record indicates mild-to-moderate limitations and an ability to perform unskilled work.” (T at 421).
Dr. Efobi, a non-examining medical expert, testified at the administrative hearing held on October 31, 2018. The ALJ asked Dr. Efobi whether “the evidence in the record thus far is so compelling, that you would be ready to say [that Plaintiff] meets or equals, or has very significant functional limitations that would extend through the present day?” (T at 606). Dr. Efobi responded that he did not have enough information to render an opinion. (T at 607).
The Commissioner's argument that these opinions are sufficient to sustain the ALJ's decision fails. As discussed above, because the ALJ failed to address Listings 12.05B, the Commissioner's arguments are necessarily post hoc. The law is well settled that post hoc rationalizations are generally not sufficient to remedy gaps in the ALJ's analysis. See Newbury v. Astrue, 321 F. Appx 16, 18 (2d Cir. 2009) (“A reviewing court ‘may not accept appellate counsel's post hoc rationalizations for agency action.'”)(quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)); see also Rosa v. Comm'r of Soc. Sec., No. 17 Civ. 3344, 2018 U.S. Dist. LEXIS 137494, at *44 (S.D.N.Y. Aug. 13, 2018)(“Post hoc justifications raised by the Commissioner in her memorandum of law do not cure defects in the ALJ's decision ....”).
Although a decision may be sustained if it is possible to “glean the rationale of the ALJ's decision,” Cichocki v. Astrue, 534 Fed.Appx. 71, 76 (2d Cir. 2013), this should be done sparingly and only where it is clear the ALJ considered all the relevant evidence and the “the record contains robust support for the finding that [the claimant} is not disabled.” Barrere v. Saul, 857 Fed.Appx. 22, 24 (2d Cir. 2021). That is not the case here.
Second, the Commissioner's contention that these opinions are sufficient to sustain the ALJ's decision is undermined by the ALJ's own findings.
For example, the ALJ gave only “some weight” to Dr. Reddy's assessment, noting that Dr. Reddy “is not an examining or treating source and ... did not review the entire record.” (T at 521). This undermines the Commissioner's suggestion that the ALJ must have relied on Dr. Reedy's analysis in (implicitly) finding that the Listing had not been met.
Regarding Dr. Efobi, the ALJ explained that the expert “was unable to address whether [Plaintiff] met or equaled a listing.” (T at 523). Thus, contrary to the Commissioner's post hoc argument, the ALJ could not have relied upon Dr. Efobi's “opinion,” because the ALJ expressly recognized that Dr. Efobi did not offer any opinion(s).
Third, the ALJ's failure to address Plaintiff's cognitive impairment undermined her consideration of the medical opinion evidence.
Dr. John Laurence Miller performed a consultative psychological examination July of 2018. Dr. Miller diagnosed moderate intellectual disability and major depressive disorder (recurrent episodes, with psychotic features and anxious distress). (T at 725). He found Plaintiff's attention, concentration, and memory skills “impaired due to limited intellectual functioning.” (T at 724).
Dr. Miller reported that Plaintiff's “intellectual disability appears to have interfered with her ability to find and maintain employment.” (T at 724). Plaintiff “has no friends” and “gets along poorly with her family.” (T at 724).
Dr. Miller opined that Plaintiff's ability to use reason and judgment to make work-related decision “markedly limited” and assessed moderate impairment in her capacity to sustain concentration, maintain a consistent pace, regulate emotions, control behavior, and maintain well-being. (T at 725). He found mild limitation as to understanding, remember, or applying simple directions; interacting with co-workers, supervisors, and the public; and sustaining an ordinary routine and regular attendance. (T at 725).
Dr. Miller stated that Plaintiff's psychiatric and cognitive problems “may significantly interfere with [her] ability to function on a daily basis.” (T at 725). He characterized Plaintiff's prognosis as “fair,” but believed she would not be able to manage her own funds “due to her cognitive deficit.” (T at 725).
The ALJ gave “partial weight” to Dr. Miller's opinion, accepting the mild limitations in functioning, but finding the marked limitation regarding using reason and judgment “not supported by the objective medical evidence.” (T at 523).
The ALJ's analysis, however, was focused on Plaintiff's depression and the apparent lack of sustained treatment for that condition and not on whether Plaintiff had an intellectual disability. (T at 523). Notably, the ALJ did not address Dr. Miller's diagnosis of moderate intellectual disability and did not engage with the physician's repeated references to the impact of Plaintiff's cognitive deficit on her ability to meet the mental demands of basic work activity. This shortcoming undermines the Listings analysis (which, as discussed above, included no consideration of the Listing related to an intellectual disorder) and the RFC determination.
Courts in this Circuit have remanded where, as here, the record contained credible evidence of intellectual impairment and the ALJ failed to adequately address whether the claimant met or medically equaled Listing 12.05. See, e.g., Bros. v. Colvin, 233 F.Supp.3d 320, 327 (N.D.N.Y. 2017); Geil v. Colvin, No. 14-CV-6463, 2015 WL 9217026 (W.D.N.Y. Dec. 16, 2015); Gardner v. Colvin, No. 16-CV-2385 (JFB), 2019 WL 3753797, at *16, n. 11 (E.D.N.Y. Aug. 8, 2019); Brown v. Colvin, No. 15-CV-4823 (RLE), 2016 WL 5394751, at *12 (S.D.N.Y. Sept. 27, 2016).
Accordingly, for the reasons outlined above, the Court recommends a remand for a proper consideration of the evidence, including a proper analysis of whether Plaintiff's impairments, including her intellectual impairment, considered singly or in combination, meet or medically equal Listing 12.05.
B. Physical Limitations
As discussed above, the ALJ determined that, since November 13, 2013, Plaintiff retained the RFC to perform medium work, as defined in 20 CFR 416.967 (c), with the following limitations: she is limited to occasional exposure to respiratory irritants and can perform simple, routine work involving no more than occasional contact with coworkers, supervisors, and the public. (T at 520).
Plaintiff argues that the conclusion that she can perform medium work is inconsistent with the findings of Dr. Silvia Aguiar, who performed a consultative examination in April of 2019.
In a narrative report, Dr. Aguiar made the following diagnoses: rule out essential hypertension, anxiety, panic attacks, depression, asthma. (T at 738-39). Dr. Aguiar stated that Plaintiff should avoid respiratory irritants due to her history of asthma, but she did not include any other limitations in the report. (T at 739).
Dr. Aguiar also completed a medical source statement “checkbox” form, in which she opined that Plaintiff could occasionally lift up to 20 pounds, sit for 4-5 hours in an 8-hour workday, stand for 1-2 hours, and walk for 1-2 hours in an 8-hour workday. (T at 742). She found that Plaintiff could never climb ladders or scaffolds and was precluded from balancing. (T at 744).
The ALJ gave “great weight” to Dr. Aguiar's narrative report, finding it consistent with her conclusion that Plaintiff could perform a full range of medium work. (T at 522). The ALJ gave “little weight” to the check box form completed by Dr. Aquiar, finding it not consistent with Plaintiff's treatment history. (T at 522-23).
The Court finds no error as to this aspect of the ALJ's decision.
The ALJ reasonably found the limitations on Dr. Aquiar's check box form inconsistent with the treatment record, with Dr. Aquiar's own (generally unremarkable) clinical findings, and with other medical opinion evidence of record.
Dr. Ted Woods performed a consultative examination in November of 2013. He diagnosed asthma and opined that Plaintiff should avoid respiratory irritants, but otherwise assessed no limitation with respect to her ability to sit, stand, push, pull, climb, or carry heavy objects. (T at 404). Dr. S. Putcha, a non-examining State Agency review physician, likewise assessed no limitation in Plaintiff's physical RFC, other than the need to avoid respiratory irritants. (T at 423-28).
For these reasons, this aspect of the ALJ's decision is supported by substantial evidence.
C. Vocational Expert Interrogatories
At the fifth step of the sequential evaluation, the burden shifts to the Commissioner to show “a significant number of jobs (in one or more occupations) having requirements which [the claimant is] able to meet with [his or her] physical or mental abilities and vocational qualifications.” 20 C.F.R. § 404.1566(b).
To determine whether such occupations exist in the national economy, the ALJ “will take administrative notice of reliable job information” listed in, among other publications, the Dictionary of Occupational Titles (“DOT”). Id. § 404.1566(d). Additionally, the Commissioner may elicit testimony from a vocational expert to prove there are jobs in the national economy that the claimant can perform. Id. § 404.1566(e).
In the present case, a vocational expert was available to testify at the hearing held on October 31, 2018, but the ALJ opted not to question her. (T at 608). Apparently, the ALJ intended to defer the testimony for a subsequent hearing, which would be held after further development of the record, including consultative examinations. (T at 611-12). The ALJ eventually opted not to convene a further hearing but instead obtained written interrogatory responses from a vocational expert. (T at 704-708, 712-16).
The ALJ provided the vocational expert's responses to Plaintiff and invited her to review and respond to the responses. The ALJ also advised Plaintiff that she could submit additional evidence, request another hearing, and/or submit her own questions to the vocational expert. (T at 717-18).
Plaintiff, who was proceeding pro se, did not respond. The ALJ relied on the vocational expert's responses in reaching the conclusion that jobs existed in significant numbers in the national economy that Plaintiff could perform since November 13, 2013. (T at 524-25).
The ALJ erred in obtaining and relying on the vocational expert's opinion. Here's why.
The ALJ asked the vocational expert whether there were any conflicts between her opinion and the occupational information contained in the DOT or the Selected Characteristics of Occupations (“SCO”), a companion of the DOT. Notably, the vocational expert failed to answer the question. (T at 715). And there is no indication in the record that the ALJ sought a response. This was error.
Social Security Ruling 00-4p provides that when a vocational expert testifies regarding job requirements, the ALJ has “an affirmative responsibility to ask about any possible conflict between that [testimony] and information provided in the DOT ....” SSR 00-4p. If there appears to be a conflict between the DOT and the vocational expert's testimony, the DOT is “so valued” that the ALJ is obliged to obtain a “reasonable explanation” for the conflict. Brault v. SSA, 683 F.3d 443, 446 (2d Cir. 2012)(citing SSR 004-p); see also Lockwood v. Comm'r of SSA, 914 F.3d 87, 91 (2d Cir. 2019).
The ALJ's failure to follow-up was material. The DOT's job descriptions include General Educational Development (“GED”) levels rated between 1 and 6 with respect to reasoning, mathematical and language development. See Appendix C-Components of the Definitional Trailer, id., 1991 WL 688702. The GED levels “describe the general educational background that makes an individual suitable for a particular job.” Vandermark v. Colvin, No. 3:13-cv-1467 (GLS/ESH), 2015 WL 1097391, at *9 n.19 (N.D.N.Y. Mar. 11, 2015).
According to the DOT, the representative occupations identified by the vocational expert (hand packager, warehouse worker, and meat clerk) (T at 524, 715) have a reasoning development level of two, which requires the ability to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions.” Dictionary of Occupational Titles, U.S. Dept. of Labor, 1011 (4th ed. 1991).
While a claimant limited to simple and routine tasks may be able to perform some occupations with a reasoning development level of two, see Laboriel v. Saul, No. 18-CV-5294-KPF-OTW, 2019 WL 6831762, at *12 (S.D.N.Y. Aug. 22, 2019)(collecting cases), the ALJ nevertheless should have addressed the question directly in this case, particularly given Plaintiff's cognitive limitations, as evidenced by her IQ scores. See generally Gallivan v. Apfel, 88 F.Supp.2d 92, 99 (W.D.N.Y. 2000); Santana v. Kijakazi, No. 21-CIV-1041-ER-SLC, 2022 WL 19560948, at *22 (S.D.N.Y. July 29, 2022), report and recommendation adopted, No. 21 CIV. 1041 (ER), 2023 WL 3004969 (S.D.N.Y. Jan. 23, 2023).
Plaintiff also argues that the ALJ's process for obtaining the interrogatories via written correspondence violated her right to constitutional due process. Plaintiff acknowledges that she received a copy of the vocational expert's responses, along with the ALJ's invitation for further evidence, questions for the expert, and/or a request for a supplemental hearing. Plaintiff nonetheless questions whether it was adequate for the ALJ to assume she would understand the invitation and respond appropriately. Plaintiff also asserts that she was not adequately apprised of her right to counsel.
While it is questionable whether the ALJ appropriately exercised her discretion in handling this issue given Plaintiff's pro se status and documented difficulties and limitations the Court concludes that ultimately the ALJ did not violate established procedure and/or violate Plaintiff's constitutional rights. See, e.g., Jeffrey v. Kijakazi, No. 21CV06502JLRBCM, 2023 WL 3477580, at *4 (S.D.N.Y. May 16, 2023). This conclusion is further supported by the fact that Plaintiff and/or her mother (whom she designated as her representative) were notified of the right to legal representation on multiple occasions. (T at 8, 29, 81-82, 86, 89, 99, 104, 535, 540, 552, 556, 642, 645).
D. Remand
“Sentence four of Section 405 (g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner ‘with or without remanding the case for a rehearing.'” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further administrative proceedings is the appropriate remedy “[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS 180514, at *28 (S.D.N.Y. Nov. 6, 2014).
Given the deficiencies in the ALJ's analysis as outlined above, it is recommended that this case be remanded for further proceedings.
This Court is mindful that Plaintiff's request for review of the denial of benefits has been pending for nearly a decade and this matter has already been remanded once. As such, this Court recommends the issuance of a directive that proceedings before the ALJ be completed within 120 days of remand. If the decision is a denial of benefits, then a final decision shall be rendered within 60 days of any appeal by Plaintiff. See Martinez v. Saul, No. 19-CV-6515 (BCM), 2021 WL 2588783, at *11 (S.D.N.Y. June 23, 2021).
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 20) should be GRANTED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 12) should be DENIED; and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).