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Swain v. Astrue

United States District Court, W.D. New York

March 31, 2014

DARRYL SWAIN, Petitioner,
v.
MICHAEL J. ASTRUE, [1] COMMISSIONER OF SOCIAL SECURITY, Respondent.

DECISION & ORDER

MARIAN W. PAYSON, Magistrate Judge.

INTRODUCTION

Petitioner Darryl Swain brings this action pursuant to the Social Security Act (codified in relevant parts at 42 U.S.C. ยงยง 405(g) and 1383(c)(3)) seeking review of a final decision of the Commissioner of Social Security (the "Commissioner") denying his application for Supplemental Security Income ("SSI"). Specifically, petitioner alleges that the decision of Administrative Law Judge ("ALJ") Rosanne M. Dummer denying his application for benefits was against the weight of substantial evidence contained in the record. Petitioner requests that the Court reverse the judgment of the Commissioner and remand for calculation of benefits or, alternatively, for further administrative proceedings.

The Commissioner moves for judgment on the pleadings on the grounds that the ALJ's decision was supported by substantial evidence in the record and was based upon the application of the correct legal standards. (Docket # 9). Petitioner cross-moves for judgment on the pleadings and opposes the Commissioner's motion on the grounds that the Commissioner's decision was not supported by substantial evidence. (Docket # 11). In the alternative, petitioner requests that the matter be remanded for further administrative proceedings. ( Id. ). For the reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim for further administrative proceedings consistent with this decision.

BACKGROUND

I. Procedural History

On April 7, 2009, petitioner filed an application for SSI, alleging disability beginning on December 15, 2007. (Tr. 13).[2] This claim was initially denied on May 26, 2009. ( Id. ). Thereafter, petitioner timely filed a written request for a hearing on May 29, 2009. ( Id. ). On August 4, 2010, the ALJ presided over a videoconference hearing from Baltimore, Maryland, and petitioner appeared and testified in Rochester, New York. ( Id. ).

In a decision dated August 19, 2010, the ALJ found that petitioner was not disabled within the meaning of the Social Security Act. (Tr. 13-25). The Appeals Council denied review on March 1, 2012, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 1). Petitioner subsequently filed this action on April 18, 2012. (Docket # 1).

II. Request for Development of the Record

Approximately one month before the hearing, petitioner requested that the hearing be postponed so that he could obtain an intelligence evaluation. (Tr. 141). Petitioner's reason for the request was that he could not read or write, had only completed the ninth grade, and had taken special education classes. ( Id. ). In response, the ALJ took the request for an evaluation under advisement, but indicated that the hearing would proceed on the scheduled date. (Tr. 182).

At the hearing, petitioner reiterated his request for an intellectual evaluation, citing a limited ability to read and do math and "generally a severe deficiency in intellectual functioning." (Tr. 32, 57). Counsel for petitioner explained that he had attempted to obtain petitioner's school records from the Rochester City School District, but was informed by the district that the records had been destroyed. (Tr. 32-33). Expressing doubts as to the accuracy of this information, counsel for petitioner requested that the ALJ leave the record open for two weeks following the hearing so that petitioner could re-contact the school district to obtain the records and submit them for consideration. (Tr. 33, 58). The ALJ granted that request. (Tr. 58).

The ALJ deferred ruling on the request for an intellectual evaluation, determining to proceed with the hearing in order to determine whether the testimony would inform her decision as to whether an evaluation was warranted. (Tr. 33, 57). In her decision, the ALJ denied the request for an intellectual evaluation on the grounds that the record was sufficiently developed to permit her to render a full and fair determination. (Tr. 13).

On August 19, 2010, the ALJ issued her decision finding that petitioner was not disabled. On August 30, 2010, petitioner obtained the school records and at some point thereafter submitted them for consideration. (Tr. 187). The records appear to be from a school in Alabama; thus, petitioner's earlier inability to obtain the records likely stemmed from counsel's mistaken understanding that petitioner had attended school in Rochester. (Tr. 187-93).

The school records reflect that petitioner generally performed poorly in school, primarily receiving grades of C, D and F. (Tr. 189). Petitioner repeated the sixth grade and was placed into special education.[3] (Tr. 189, 191). Petitioner's grades do not appear to have improved during the seventh, eighth or ninth grade. (Tr. 191-92). In addition, the records reflect that petitioner scored an intelligence quotient ("IQ") of 73 on an Otis-Lennon intelligence test in 1973 and scored an IQ of 72 on a Wechsler Intelligence Scale for Children (WISC) intelligence test in 1975. (Tr. 189-90).

The Appeals Council considered the school records and found that they did "not provide a basis for changing the [ALJ's] decision." (Tr. 1, 2, 4). The Appeals Council did not explain its reasoning in its notice denying review of the ALJ's decision. (Tr. 1-4).

III. Work History

At the time of the hearing, petitioner was 44 years old and had completed the ninth grade while attending special education classes. (Tr. 33, 191). He did not obtain a GED or driver's license. (Tr. 32-33). For about a year at the time of the hearing, petitioner swept, mopped, and cleaned bathrooms at a glass shop for five hours on Saturdays. (Tr. 34, 149). In 2009, petitioner worked at a car wash drying cars. (Tr. 35, 173). Prior to 2009, he performed odd jobs such as temporary factory work, cutting grass, washing cars, and doing yard work. (Tr. 35).

IV. Medical History

Petitioner suffers from both physical and mental impairments. With respect to physical impairments, petitioner suffers from back pain, hypertension, and hypercholesterolemia. (Tr. 253). Petitioner also has had multiple fatty tumors, or lipomas, in his back and side. (Tr. 36-37, 46). One tumor was surgically removed in 2007 or 2008, after which petitioner experienced burning and tingling in his lower back. (Tr. 46). Petitioner's body mass index ("BMI") shows he is borderline obese. (Tr. 16, 33). Petitioner also abuses tobacco. (Tr. 253). Bharat Gupta, M.D., has provided petitioner Vicodin for his back pain, Tekturna for his hypertension, and Crestor for his hypercholesterolemia. (Tr. 36-37, 254). Petitioner broke his ankle years ago, and it remains swollen. (Tr. 36, 194). Additionally, petitioner hurt his knee in a bus accident, and medical records reflect moderate to mild pain in the knee. (Tr. 209-12). Petitioner testified that occasionally his leg goes "blank" or his side goes "limp." (Tr. 37, 39). He further alleges arthritis in both his knees and ankles. (Tr. 152). Petitioner testified that due primarily to his chronic back pain, ...


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