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Marlene E. Soto v. Michael J. Astrue

March 23, 2011

MARLENE E. SOTO, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., U.S.D.J

OPINION & ORDER

Specifically Marlene Soto ("Soto" or "Plaintiff") brought this action pursuant to the Social Security Act of 1935, 42 U.S.C. § 405(g), (the "Act") seeking judicial review of a final decision by the Commissioner of Social Security (the "Commissioner") denying her claim for Supplemental Security Income ("SSI") benefits. Plaintiff contends that the Administrative Law Judge ("ALJ") failed to afford Plaintiff an adequate opportunity to review and comment on the expert's report. Plaintiff also requests that this Court instruct the ALJ on the proper law, and requests injunctive relief. For the reasons below the case is REMANDED so that the ALJ may consider all the evidence and the parties' responses thereto before issuing a new decision, and Plaintiff's request for other relief including injunctive relief is DENIED.

Background

Plaintiff applied for SSI benefits through her mother in January 2000 when she was fourteen years old because she suffered from juvenile onset diabetes. Plaintiff received SSI benefits until she reached the age of eighteen in 2004, at which time the DDS Examiner re-determined whether she was eligible for benefits under the adult disability standard pursuant to 42 U.S.C. § 1382c(a)(3)(H)(iii). After concluding that Soto was ineligible under the adult standard, the DDS Examiner directed that her benefits would cease as of July 2004. On October 5, 2004, the DDS Examiner's decision was affirmed at the reconsideration level of administrative review, and Soto subsequently requested a hearing before an ALJ. In addition, Soto requested and received continuation of benefits while the case was pending at the reconsideration and administrative hearing levels.

The ALJ held a hearing on April 23, 2007, which was continued several months later on August 8, 2007. The ALJ then submitted the hearing record to a medical expert, Dr. Gerald Galst, for his review. Dr. Galst submitted a written report to the ALJ on August 15, 2007, and Plaintiff's counsel requested until August 29, 2007 to submit comments regarding Dr. Galst's report. However, the ALJ entered a final decision on August 28, 2007, without a response from Plaintiff's counsel.

The ALJ determined that Soto had not been eligible for SSI benefits since the initial termination in July 2004, shortly after she reached the age of eighteen. On October 8, 2009, the Appeals Council of the Social Security Administration ("Appeals Council") denied Soto's request for review of the ALJ's order. Soto now seeks review of the ALJ's determination that she was ineligible for benefits beginning in July 2004, and requests that the case be remanded to the ALJ for a rehearing pursuant to 42 U.S.C. § 405(g).*fn1 In addition, Soto asks that this Court instruct the ALJ as to the "end date" for the period at issue when the ALJ may consider evidence in his analysis of whether Soto was entitled to SSI benefits. Lastly, Soto requests that this Court enjoin the Commissioner to refund to plaintiff any recovery of an overpayment that has already been made and to cease collection of the benefits that Soto already received during the pendency of her administrative hearings.

For the reasons below the case is remanded so that the ALJ may consider all the evidence and the parties' responses thereto in the relevant time period, i.e. from July 2004 through August 2007, after providing adequate time for Plaintiff's response to the Galst report, and Plaintiff's requests for injunctive relief is denied.

Discussion

I. Legal Standard

In reviewing a decision of the Commissioner, this Court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." Santiago v. Barnhart, 441 F. Supp. 2d 620, 625 (S.D.N.Y. 2006) (quoting 42 U.S.C. § 405(g) (brackets in original). A remand may be made pursuant to 42 U.S.C. § 405(g) in cases in which the Commissioner has failed to provide a full and fair hearing, to make explicit findings, or to have correctly applied the law and regulations. Melkonyan v. Sullivan, 501 U.S. 89, 100 (1991).

II. Remand

The Supreme Court has held that Social Security Administration proceedings must be "fundamentally fair." Richardson v. Perales, 402 U.S. 389, 401 (1971). The administrative record is only "complete" where the plaintiff has had an opportunity to confront the evidence and present her own. See Townley v. Heckler, 748 F.2d 109, 114 (2d Cir. 1984) ("[A] disability benefits claimant has a right to cross examine the author of an adverse report and to present rebuttal evidence."). Where an ALJ substantially relies on the post-hearing report of an expert without affording the plaintiff an opportunity to review it, sufficient due process has not been afforded. Gullo v. Califano, 609 F.2d 649, 650 (2d Cir. 1979) (holding that the hearing judge's reliance upon expert reports denies due process where the claimant was afforded no opportunity to subpoena and cross-examine the expert).

The parties agree that here, the ALJ erred in not providing Soto with an adequate opportunity to review and comment on Dr. Galst's report before rendering a decision. See Def's. Mem. at 5-6. Dr. Galst submitted his written report to the ALJ on August 15, 2007, and the next day, the ALJ stated that counsel had "a few.days" to submit a written statement concerning Dr. Galst's report. Tr. 353-54. By letter dated August 22, 2007, plaintiff's counsel requested until August 29, 2007 to submit comments on the Galst report. Tr. 358. However, the ALJ ignored Plaintiff's request, and issued his decision on August 28, 2007. This procedure denied Plaintiff's right to rebut the adverse report, and thus was not "fundamentally fair." The matter shall be ...


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