Freundlich v. Saul

MARC ALLEN FREUNDLICH v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY

3:20 CV 726 (RMS)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

APRIL 23, 2021

RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE DECISION OF THE COMMISSIONER AND DEFENDANT'S MOTION TO REMAND

This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks review of a final decision by the Commissioner of Social Security ("SSA") denying the plaintiff Child's Insurance Benefits under the earnings record of his father.

I. ADMINISTRATIVE PROCEEDINGS

The plaintiff's alleged onset of disability occurred over sixteen years ago, in 2004, and the administrative proceedings in this case are lengthy, spanning over five years. On December 10, 2015, the plaintiff filed an application for Child's Insurance Benefits on the earnings record of his father, Lester Freundlich. (See Doc. No. 19, Certified Administrative Records of Proceedings ["Tr."] 209, 974); see Freundlich v. Berryhill, No. 3:18 CV 1356 (RMS), 2019 WL 2490637, at *1 (D. Conn. Jun. 14, 2019) ["Freundlich I"]). The plaintiff alleged disability due to attention deficit hyperactivity disorder, anxiety, mood disorder, and pervasive developmental disorder, beginning January 1, 2004, when the plaintiff was fourteen years old. (See id.). After exhausting his administrative remedies, the plaintiff filed his complaint in this court and the case was transferred to the undersigned upon consent of the parties. (See id.). On June 14, 2019, the Court issued a 33-page decision reversing the decision of Administrative Law Judge ("ALJ") Eskunder Boyd and remanding the case for further proceedings. (See Tr. 974-1006). Specifically, the Court concluded that the ALJ erred in his consideration of the treating source evidence and failed to develop the record. (Id.). Judgment entered in that case on June 17, 2019 (Tr. 1007), and pursuant to that Judgment, on July 22, 2019, the Appeals Council issued a remand order. (Tr. 1010).

Thereafter, on November 18, 2019, ALJ Boyd held a second hearing at which the plaintiff testified in person and vocational expert Jane Gerrish testified by telephone. (Tr. 895-946). On January 29, 2020, the ALJ issued an unfavorable decision, again denying the plaintiff's claim for benefits. (Tr. 876-85).

Following the five-step evaluation process, the ALJ found that the plaintiff, who was born in 1989, had not attained the age 22 as of January 1, 2004, his alleged onset date, and that he had not engaged in substantial gainful activity since that onset date. (Tr. 878-79, citing 20 C.F.R. § 404.1571 et seq.).

At step two of the sequential analysis, he found that, prior to attaining age 22, the plaintiff had the following severe impairments: anxiety disorder, mood disorder, pervasive development disorder, and attention deficit hyperactivity disorder. (Tr. 879-80). He further concluded that no impairment met or medically equaled a listing. (Id.).

Next, the ALJ determined that, prior to attaining age 22, the claimant had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels but he had the non-exertional limitations of performing simple, routine repetitive tasks; sustaining concentration, persistence and pace for two-hour segments; engaging in brief and superficial interaction with coworkers and no interaction with the public; working with "little/no change in duties/routines"; and, not performing any work requiring independent judgment[.]" (Tr. 881-84).

The ALJ concluded that, prior to attaining age 22, there were jobs that existed in significant numbers that the plaintiff could perform, including, dishwasher, laundry worker and garbage collector. (Tr. 884-85). Thus, the ALJ found that the plaintiff was not under a disability any time prior to November 20, 2011, the date he attained age 22. (Tr. 885, citing 20 C.F.R. §§ 404.350(a)(5), 404.1520(g)).

In the absence of written exceptions, and "own motion" review by the Appeals Council, the ALJ's January 29, 2020 decision became the final, appealable decision of the Commissioner sixty days thereafter. (See 20 C.F.R § 404.984(d) ("If no exceptions are filed and the Appeals Council does not assume jurisdiction of your case, the decision of the administrative law judge becomes the final decision of the Commissioner after remand.")).

On May 26, 2020, the plaintiff filed his complaint in this pending action (Doc. No. 1), and on May 28, 2020, the parties consented to the jurisdiction of a United States Magistrate Judge. (Doc. No. 7). This case was transferred accordingly.

On December 18, 2020, the plaintiff filed his Motion to Reverse the Decision of the Commissioner (Doc. No. 21), with a Statement of Material Facts (Doc. No. 21-1), and a brief in support (Doc. No. 21-2). On March 8, 2021, the defendant filed a Motion for Entry of Judgment Under Sentence Four of 42 U.S.C. § 405(g) with Reversal and Remand of the Cause to the Defendant (Doc. No. 25), with a brief in support. (Doc. No. 25-1). The defendant moves for remand of the final decision for further administrative proceedings under Sentence Four of 42 U.S.C. § 405(g). On March 10, 2021, the plaintiff filed his response to the defendant's motion. (Doc. No. 27; see Doc. No. 26). The sole issue before the Court, therefore, is whether the case shall be remanded for further proceedings or remanded solely for the calculation of benefits. (Doc. Nos. 25, 27).

For the reasons stated below, the plaintiff's Motion to Reverse (Doc. No. 21) is denied as moot in light of the defendant's Motion, and the defendant's Motion to Remand (Doc. No. 25) is granted in part and denied in part such that this case is remanded for the calculation of benefits.

II. DISCUSSION

A. TYPES OF REMAND

The decision of an ALJ may be reversed and remanded for further administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). This fourth sentence of 42 U.S.C. § 405(g), known as "Sentence Four," gives the Court the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner. 42 U.S.C. § 405(g).

"In deciding whether a remand is the proper remedy," the Second Circuit has "stated that where the administrative record contains gaps, remand to the Commissioner for further development of the evidence is appropriate." Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2004), as amended on reh'g in part, 416 F.3d 101 (2d Cir. 2005) (citation omitted). When a district court remands solely for the calculation of benefits, the court must find that, "irrespective of the legal error, the record contains 'persuasive proof' of the claimant's disability and 'a remand for further evidentiary proceedings would serve no purpose.'" Casanova v. Saul, Civ. No. 3:19-cv-0086-TOF, 2020 WL 4731352, at *2 (D. Conn. Aug. 14, 2020) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d. Cir. 1980)). Persuasive proof of disability exists when there is "no apparent basis to conclude" that additional evidence "might support the Commissioner's decision." Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999).

B. PARTIES' ARGUMENTS

The defendant concedes that remand is warranted because the ALJ erred in his treatment of the opinion evidence of the record; consequently, "[r]emand is required for a new decision that evaluates the opinion evidence in accordance with the applicable regulations at 20 C.F.R. § 404.1527." (Doc. No. 25-1 at 1). Specifically, the defendant acknowledges that, although the ALJ "did discuss and weigh [the March 2016 opinion of] Dr. [Jeffrey] Koffler[, the plaintiff's long-time psychiatrist,] he did not discuss Dr. Koffler's testimony, Dr. [John] Gelinas[, Jr.'s] opinion, or Dr. [James W.] Pier's opinion." (Id. (citing Tr. 878-85)). The defendant argues, however, that despite these errors, remand for the calculation of benefits is not warranted because the evidence does not demonstrate that the only possible conclusion is a finding of total disability thereby '"render[ing] any further proceedings pointless."' (Doc. No. 25-1 at 2 5 (citing Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (additional citation omitted)). The defendant contends that the opinions that the ALJ failed to properly consider "are not particularly probative of [the] [p]laintiff's functioning during the relevant period." (Doc. No. 25-1 at 3).

Conversely, the plaintiff asserts that a remand for calculation of benefits is warranted given the ALJ's failure to follow the "clear instruction" of this Court, and "[h]ad the ALJ followed the law and afforded controlling weight to the stated opinions of long-time treating psychiatrist [Dr. Koffler] (addressed by the Court in [Freundlich I]), an award of benefits would have been a foregone conclusion." (Doc. No. 27 at 4, 9 (emphasis in original)). Additionally, the plaintiff argues that the he has been "required to rely on his father for his maintenance and support" such that "[e]xtending his penury/financial dependency is, at the very least, difficult to justify." (Id. at 6).

The sole issue for the Court's determination, therefore, is the type of remand order that is appropriate in this case.

C. REMAND FOR CALCULATION OF BENEFITS IS WARRANTED

Following remand from the Court in Freundlich I, on July 22, 2019, the Appeals Council issued its remand order stating: "the Appeals Council vacates the final decision of the Commissioner of Social Security and remands this case to an Administrative Law Judge for further proceedings consistent with the order of the court." (Tr. 1010). The Appeals Council directed the ALJ to "take any further action needed to complete the administrative record and issue a new decision." (Id.).

It is undisputed that the ALJ failed to follow the Court's remand order, and it is well settled that an ALJ's failure to follow the dictates of a remand order of the court is reversible error. See Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (holding that "[d]...