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Chilson v. Colvin

United States District Court, E.D. New York

March 31, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          PAMELA K. CHEN, United States District Judge.

         Plaintiff Dora Regina Chilson (“Plaintiff”) brings this action under 42 U.S.C. § 405(g), seeking judicial review of a determination by the Social Security Administration (“SSA”) finding that Plaintiff was not disabled, and therefore is not entitled to disability insurance benefits, for the time period of July 30, 2009 through September 27, 2013. Plaintiff moved for judgment on the pleadings, asking this Court to remand to the SSA for redetermination (Dkt. 9), and the SSA filed a cross-motion for judgment on the pleadings, asking this Court to affirm the SSA's determination (Dkt. 13). For the reasons stated below, the Court GRANTS Plaintiff's motion for judgment on the pleadings and DENIES the Commissioner's motion. The case is remanded for further proceedings consistent with this opinion.


         Plaintiff applied for disability insurance benefits (“DIB”) on May 16, 2011, alleging disability beginning July 30, 2009, due to dysthymic disorder, anxiety disorder, hypertension, mitral valve disorder, gastroesophageal reflux disease (“GERD”), and carpal tunnel syndrome (“CTS”). (Tr. 302-03, 325.)[1] Her claim was initially denied (Tr. 158, 160-65), and she subsequently requested a hearing before an administrative law judge (“ALJ”). (Tr. 172-73.) The hearing was held on May 26, 2013 (Tr. 97-144) before ALJ Romeo, and a favorable decision was issued on September 27, 2013. (Tr. 147-56.) The decision, finding that Plaintiff met the criteria for psychiatric listings 12.04 and 12.06, was based in part on reports from Edward Sodaro, Jr., M.D., Plaintiff's treating psychiatrist. (Tr. 152-55.) Plaintiff was represented by Attorney Raymond Lavallee in connection with her DIB application and the hearing before ALJ Romeo. (Tr. 179.)

         On February 25, 2014, the SSA was notified by letter from the New York County District Attorney's Office (“DA”) that a fraud investigation by the DA concerning attorney Lavallee and others revealed that a group of DIB recipients may have obtained benefits under fraudulent pretenses. (Tr. 229-30.) The letter stated that the DA's investigation had revealed that Lavallee had assisted DIB applicants with paperwork that included false statements regarding their activities of daily living and that Lavallee had coached applicants about how to behave during consultative examinations, ALJ hearings, and treatment sessions with pre-designated doctors. (Tr. 229.) The letter further stated that an identified “group of [DIB] recipients”-including Plaintiff (Tr. 230; Dkt. 18-1 (Egan Decl.) ¶ 6))-were represented by Lavallee in their DIB proceedings and “fit other patterns characteristic of Mr. Lavallee and his co-conspirators' fraudulent scheme, including boilerplate benefit claims applications, identical alleged psychiatric disabilities and symptoms, the use of the same doctors, and common ‘treatment' patterns.” (Tr. 229.) The letter also enclosed a copy of an indictment of Lavalle and others, which further detailed their alleged fraudulent scheme. (Tr. 232-48.) The indictment alleged that applicants represented by Lavallee often sought benefits based on alleged post-traumatic stress disorder (“PTSD”), were coached on how to give the impression that they were symptomatic, and used the same stock phrases, such as “I nap on and off during the day, ” and “I usually have the TV on to keep me company, ” in their written applications. (Tr. 233-34.)

         Following the SSA's receipt of the DA's letter, the SSA notified Plaintiff that, because of the investigation by the DA's office, which had resulted in the indictment of her former attorney and others, Plaintiff's DIB case would be redetermined. (Tr. 253.) The SSA notified Plaintiff that certain evidence from sources who were indicted or discredited for giving SSA fraudulent information could not be considered in the redetermination, including any evidence that the SSA had reason to believe was tainted by fraud. (Tr. 253.) Specifically, the SSA notified Plaintiff that, in the redetermination, the SSA would disregard (1) evidence from medical providers who were implicated in the fraud scheme; (2) “[a]ny of [Plaintiffs'] allegations regarding a mental impairment diagnosed by a discredited doctor; and (3) “[m]edical evidence from other sources that is based in whole or in part on your allegations of a mental impairment alleged in your original application for disability benefits.” (Tr. 253-54.) The SSA invited Plaintiff to submit “new evidence that shows you were disabled prior to September 27, 2013, ” but reiterated that the SSA “will only consider untainted evidence of impairments that you had prior to that date.” (Tr. 254.)[2]

         After receiving the notice of redetermination, Plaintiff requested a hearing; ALJ Terence Farrell was assigned to conduct Plaintiff's redetermination hearing. (Tr. 365.) Before the hearing, the SSA sent Plaintiff a letter reminding her that evidence would be excluded from the record based on the SSA's investigation into the fraud scheme perpetrated by attorney Levalle and others, and inviting Plaintiff to submit any new evidence in advance of the redetermination hearing. (Tr. 380.) The redetermination hearing was held before ALJ Farrell on June 17, 2015. (Tr. 46-96.) Plaintiff and her current attorney attended the hearing, as did a vocational expert (“VE”) and medical expert (“ME”). (Tr. 46, 53-62, 85-94.) Plaintiff gave testimony during the hearing, and Plaintiff's attorney questioned the VE and the ME. (Tr. 46, 53-62, 85-94.) On July 17, 2015, ALJ Farrell issued an unfavorable decision, finding that Plaintiff was not disabled within the meaning of the Act from July 30, 2009 through September 27, 2013. (Tr. 9-32.) Plaintiff requested appellate review by the SSA Appeals Council (Tr. 41), which was denied (Tr. 1-5). Plaintiff filed this action, seeking review of the ALJ's determination of ineligibility.



         A. Standard of Review

         In reviewing a denial of DIB to claimants under the Social Security Act (the “Act”), federal district courts must determine “whether the SSA's decision was supported by substantial evidence and based on a proper legal standard.” Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). The term “substantial” does not require that the evidence be overwhelming, but rather that the evidence must be “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In determining whether the Commissioner's findings were based on substantial evidence, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which contradictory inferences can be drawn.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). A district court's role in reviewing the Commissioner's final decision is limited, because “it is up to the agency, and not this court, to weigh the conflicting evidence in the record.” Clark, 143 F.3d at 118. Thus, as long as “the [ALJ] applied the correct legal standard” and “the ALJ's findings are supported by evidence that a reasonable mind would accept as adequate, the ALJ's decision is binding on the court.” Petre v. Comm'r of Soc. Sec., No. 13-CV-2657, 2015 WL 6971212, at *3 (E.D.N.Y. Nov. 20, 2015).

         B. Eligibility Standard for Social Security Disability Benefits

         In order to be found eligible for DIB benefits, claimants must be disabled as defined by the Act. Claimants are disabled under the meaning of the Act when they are unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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). The claimant must prove that the impairment is “of such severity that [the claimant] is not only unable to do [his or her] previous work but cannot, considering [his or her] age, education, and work experience, engage in any other substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). However, the ALJ has an affirmative obligation to develop the administrative record. Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009). This means that the ALJ must seek additional evidence or clarification when the claimant's medical reports contain conflicts or ambiguities, if the reports do not contain all necessary information, or if the reports lack medically acceptable clinic and laboratory diagnostic techniques. 20 C.F.R. § 404.1512(b)(1).

         In evaluating disability claims, the ALJ must adhere to a five-step inquiry. The claimant bears the burden of proof in the first four steps in the inquiry; the Commissioner bears the burden in the final step. Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). First, the ALJ determines whether the claimant is currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If the answer is yes, the claimant is not disabled. If the claimant is not engaged in “substantial gainful activity, ” the ALJ proceeds to the second step to determine whether the claimant suffers from a “severe impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). An impairment is determined to be severe when it “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(a)(c). If the impairment is not severe, then the claimant is not disabled within the meaning of the Act. However, if the impairment is severe, the ALJ proceeds to the third step, which considers whether the impairment meets or equals one of the impairments listed in the Act's regulations (the “Listings”). 20 CFR § 404.1520(a)(4)(iii); see also 20 C.F.R. Pt. 404, Subpt. P, App. 1.

         If the ALJ determines at step three that the claimant has one of the listed impairments, then the ALJ will find that the claimant is disabled under the Act. On the other hand, if the claimant does not have a listed impairment, the ALJ must determine the claimant's “residual functional capacity” (“RFC”) before continuing with steps four and five. The claimant's RFC is an assessment which considers the claimant's “impairment(s), and any related symptoms . . . [which] may cause physical and mental limitations that affect what [the claimant] can do in the work setting.” 20 C.F.R. § 404.1545(a)(1). The ALJ will then use the RFC determination in step four to determine if the claimant can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If the answer is yes, the claimant is not disabled. Otherwise the ALJ will proceed to step five where the Commissioner then must determine whether the claimant, given the claimant's RFC, age, education, and work experience, has the capacity to perform other substantial gainful work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). If the answer is yes, the claimant is not disabled. However, if not, the claimant is disabled and is entitled to benefits. Id.


         As noted above, by order dated July 17, 2015, ALJ Farrell determined that Plaintiff was not disabled within the meaning of the Act from July 30, 2009 through September 27, 2013.

         A. The ALJ's Exclusion of Evidence

         Plaintiff's appeal to this Court is based largely on the ALJ's decision to exclude certain categories of information as evidence in the redetermination hearing, including medical records related to Plaintiff's mental health during the period of alleged disability. (Pl.'s Br. 1-9; Def.'s Br. 20-27.) A careful examination of the ALJ's exclusion of evidence is therefore warranted.

         The ALJ excluded the following evidence:

(1) all treatment records from Dr. Edward Sodaro, Plaintiff's treating psychiatrist for the period of December 17, 2009 through at least March 8, 2011;
(2) all treatment records from Christine Zarrilli, L.C.S.W., who saw Plaintiff for individual therapy sessions from May ...

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