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Mandro v. Berryhill

United States District Court, D. Connecticut

September 14, 2017

JAMES L. MANDRO, Plaintiff,


          Janet C. Hall United States District Judge


         Plaintiff James L Mandro (“Mandro”) brings this action under title 42, section 405(g) of the United States Code, appealing from the final determination of the Commissioner of Social Security (“the Commissioner”), which denied his application for Title II disability insurance benefits and Title XVI supplemental security income. Motion to Reverse the Decision of the Commissioner (“Pl.'s Mot.”) (Doc. No. 20). The Commissioner cross-moves for an order affirming that decision. Defendant's Motion for Judgment on the Pleadings (“Def.'s Mot.”) (Doc. No. 30).

         For the reasons set forth below, the Motion to Reverse the Decision of the Commissioner is GRANTED, and the Motion for Judgment on the Pleadings is DENIED. The case is remanded to the ALJ for proceedings consistent with this decision.


         Mandro first applied for disability insurance benefits on September 30, 3007, and applied for supplemental security income benefits on December 27, 2007. Both applications claimed an onset date of July 27, 2007. Both applications were administratively denied on January 17, 2008, and denied again by the Federal Reviewing Office on September 10, 2008. Mandro requested a hearing on October 20, 2008. On February 18, 2010, a hearing was held before Administrative Law Judge (“ALJ”) Robert A. DiBiccaro. On July 23, 2010, ALJ DiBiccaro issued a decision denying Mandro's claims in full. In that decision, ALJ DiBiccaro concluded that Mandro could no longer perform his past relevant work as a bus driver because “[t]he demands of the claimant's past relevant work exceed his residual functional capacity.” Certified Transcript of Record (“R.”) at 174. However, ALJ DiBiccaro concluded that Mandro “has the residual functional capacity to lift and carry 10 pounds occasionally and nominal weight frequently; he can walk and/or stand for up to 2 hours of an 8-hour workday; and he can sit for approximately 6 hours of an 8-hour workday.” Id. at 171. In addition, ALJ DiBiccaro concluded that Mandro was “limited to only occasional use of foot controls.” Id. Mandro did not appeal ALJ DiBiccaro's 2010 decision.

         On June 8, 2011, Mandro filed new applications for social security benefits, once again claiming an onset date of disability of July 26, 2007. Id. at 367, 376. The applications were denied initially on July 13, 2011, id. at 181-88, and then denied upon reconsideration on January 18, 2012, id. at 192-97. Mandro filed a request for a hearing on January 24, 2012, which took place--once again before ALJ DiBicarro--on January 31, 2013. At the hearing, Mandro testified that he experienced severe pain for hours every day, and that his feet were constantly numb. Id. at 73. He testified that he had allowed his license to expire three years before, and had been physically unable to drive for the prior two years because of numbness in his feet. Id. at 44-45. He also testified that he had developed a dependence on opiate pain relievers, and had been attending therapy and taking methadone since mid-2012. Id. at 45-47.

         On April 16, 2013, ALJ DiBiccaro issued a partially favorable decision, finding that Mandro had been disabled since April 10, 2011, but not before. Id. at 137-58. ALJ DiBiccaro found that, since April 10, 2011, Mandro had the residual function capacity to perform sedentary work, with the additional limitations that “the claimant is able to walk less than two hours and sit less than four hours in an eight-hour workday.” Id. at 150. With respect to Mandro's past work as a bus driver, ALJ DiBiccaro stated that bus driving is medium work, and therefore concluded that Mandro was unable to perform his past relevant work. Id. at 151.

         On June 12, 2013, the Social Security Appeals Council notified Mandro of the possibility that the Appeals Council planned to “set aside the favorable hearing decision and send your case back to an Administrative Law Judge for more action and a new decision.” Id. at 262. On November 1, 2013, the Appeals Council vacated ALJ DiBiccaro's April 16, 2013 decision and remanded the claim to the New Haven Office of Disability Adjudication and Review for a new hearing, decision, and order. Id. at 159- 63. In so doing, the Appeals Council directed the ALJ to “offer the claimant an opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision.” Id. at 162. The Appeals Council specifically directed the ALJ to “[r]e-assess the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations.” Id. To that end, the Notice direct the ALJ to “re-evaluate the medical source opinion evidence” and further stated that, “[a]s appropriate, the Administrative Law Judge may request the treating source(s) to provide additional evidence and/or further clarification of the opinion(s) and updated medical source statements about what the claimant can still do despite the impairments.” Id. The Appeals Council further stated that the ALJ “may enlist the aid and cooperation of the claimant's representative in developing evidence from the claimant's treating sources.” Id.

         On remand, the matter was assigned to ALJ Matthew Kuperstein, and hearing was scheduled for December 17, 2014. The transcript from that date reflects that Mandro's representative, Attorney Allan Rubenstein, was present, but Mandro himself was not. Apparently Mandro was present at the hearing office on the day of the hearing, but reported to hearing office staff that he was having a panic attack, and he left before Attorney Rubenstein arrived. Id. at 11. ALJ Kuperstein agreed to postpone the hearing at that time. Id. at 80. ALJ Kuperstein also informed Attorney Rubenstein on the record during the December 17, 2014 hearing that the record was missing updated treatment notes from physicians Glenn Vitale, D.P.M, and Elvin Griffith, M.D., and requested that Attorney Rubenstein produce records since November 19, 2012. Id. Attorney Rubenstein informed ALJ Kuperstein that he had “had difficulty” getting records. Id. at 81.

         The hearing was rescheduled for May 19, 2012, but in February, 2012 Attorney Rubenstein informed the hearing office that he would be unavailable on that date, and requested that the hearing be postponed. Id. at 340. The hearing was subsequently rescheduled for September 9, 2015. On September 8, 2015, Attorney Rubenstein notified the hearing office by letter and by phone that Mandro was “suffering from a stomach virus, a fever and emesis” and he would therefore be unable to attend the September 19, 2015 hearing. Id. at 366.

         The transcript of the September 9, 2015 hearing apparently begins in the middle of what could euphemistically be called a discussion between ALJ Kuperstein and Attorney Rubenstein. In essence, ALJ Kuperstein decided not to postpone the hearing despite Mandro's absence, and Attorney Rubenstein vigorously objected to that decision. R. at 87. The result of this dispute was that Attorney Rubenstein walked out of the hearing, and ALJ Kuperstein took the testimony of Vocational Expert Ruth Baruch, who appeared telephonically, in the absence of either Mandro or his representative. Id. at 88-96.

         On November 18, 2015 ALJ Kuperstein issued an unfavorable decision, denying Mandro's applications in their entirety. With respect to the period from July 26, 2007 through July 23, 2010, ALJ Kuperstein concluded that res judicata barred Mandro's claims based on ALJ DiBicarro's unfavorable ruling from July 23, 2010. Id. at 12. ALJ Kuperstein further found that, since July 24, 2010, Mandro had “the residual functional capacity to perform light work . . . except: The claimant is limited to only occasional climbing of ramps or stairs and occasional balancing, stopping, kneeling, crouching or crawling.” Id. at 17. ALJ Kuperstein further found that Mandro “is limited to never being able to do work that involves the climbing of ladders, ropes, or scaffolds.” Id. Given this residual functional capacity finding, ALJ Kuperstein concluded that Mandro could still perform his relevant past work driving a bus “as actually performed.” Id. at 21.

         Mandro requested review by the Appeals Council on November 24, 2015, and on May 13, 2016, the Appeals Council denied his request. Id. at 1-5. By virtue of that denial, ALJ Kuperstein's November 18, 2015 decision became a final decision reviewable by this court.

         III. FACTS

         The court adopts the facts as stated in the Plaintiff's Statement of Facts (Doc. No. 20-1), to which the Commissioner stipulated, see Defendant's Memorandum (Doc. No. 30-1) at 2. Mandro was born in 1964, making him forty-three-years-old on his alleged onset date of July 26, 2007, and fifty-one-years-old when his most recent application was denied, on December 18, 2015. Mandro holds a high school diploma, and worked as a bus driver until his alleged onset date. In both his initial application for benefits and his subsequent application, Mandro alleged disability based on bulging discs, back spasms, and arthritis in his back. According to treatment notes from Mandro's treating physician, Dr. Griffith, Mandro has been diagnosed with mixed hyperlipidemia, obesity, lumbago, hypertension, and type II diabetes, see R. at 663 (treatment notes dated March 9, 2011), as well as peripheral vascular disease, see id. at 667. A medical source statement by Dr. Griffith dated December 11, 2014, states that Mandro's diagnoses include type II diabetes, hypertension, peripheral neuropathy, mixed hyperlipidemia, reflex esophagitis, and fibromyalgia. Id. at 1403. Mandro has also been treated by podiatrist Glenn Vitale for plantar fasciitis. See id. at 1407-16 (treatment notes by Dr. Glenn Vitale from September 28, 2012 through October 10, 2014). Generally, Mandro alleges disability consisting of chronic back pain, pain in his legs and feet, and numbness in his feet secondary to type II diabetes.

         The record reflects that Mandro was suspected of drug seeking behaviors by physicians on several occasions between 2007 and 2012, see, e.g., id. at 826, and that Mandro eventually sought treatment for a dependence on prescription painkillers, id. at 1138-41. The record further indicates that Mandro has been taking methadone since seeking treatment, and between May 16, 2012 and August 12, 2015, has passed regular urine screenings with only one exception. Id. at 1446.[3]


         Under title 42, section 405(g) of the United States Code, it is not the district court's function to determine de novo whether the claimant was disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Instead, the court is limited to two lines of inquiry: whether the ALJ applied the correct legal standard, and whether the record contains “substantial evidence” to support his decision. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). “Substantial evidence” requires “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)).

         V. ANALYSIS

         A. ALJ Kuperstein's Finding of Constructive Waiver of Appearance at September, 2015 Hearing

         As described in the Procedural History section, Mandro did not appear at the hearing scheduled for September 9, 2015. His representative, Attorney Rubenstein, called the Social Security Administration hearing office on September 8, 2015, to alert the office and ALJ Kuperstein to his client's illness. R. at 476. On September 9, 2015, although Mandro did not appear, Attorney Rubenstein was present. However, he objected to ALJ Kuperstein's decision to go forward with the hearing in Mandro's absence, and left before the Baruch's testimony was taken. Id. at 88.

         Mandro argues that, because ALJ Kuperstein failed to postpone Mandro's hearing or schedule a supplemental hearing, ALJ Kuperstein's December 18, 2015 Ruling was “facially prejudicial to [Mandro], and requires remand.” Plaintiff's Memorandum in Support of his Motion (“Pl.'s Mem.”) (Doc. No. 20-2) at 8. In support of this argument, Mandro points to both the internal policies of the Social Security Administration as well as the Mandro's statutory and constitutional right to procedural due process.

         In his decision denying Mandro's applications, ALJ Kuperstein states that, because Mandro did not appear at the hearing and did not provide documentation from medical sources explaining his absence, Mandro “constructively waived his right to appear . . . at [sic] hearing.” R. at 12. Social security hearing procedures are governed by the Hearings, Appeals and Litigation Law Manual (“HALLEX”). Volume I, Section 2-4-25 of HALLEX states that a claimant constructively waives his right to appear at a hearing under certain limited circumstances. First, if a claimant fails to appear for a hearing but the claimant's representative does appear and continues to represent the claimant, “the ALJ may determine that the claimant has constructively waived the right to appear at the hearing if . . . [t]he representative is unable to locate the claimant” and certain other conditions apply. HALLEX I-2-4-25(D)(2)(a).[4] Here, as Mandro points out, Attorney Rubenstein was not “unable to locate the claimant.” Defendant's Memorandum in Support of her Motion (“Def.'s Mem.”) (Doc. No. 20-2) at 5. Therefore, Mandro did not constructively waive his right to appear at a hearing pursuant to HALLEX I-2-4-25(D)(2)(a).

         In the event that the necessary conditions for constructive waiver under that provision are not met, HALLEX directs:

the ALJ may choose to proceed with the hearing, accepting the testimony of the witness(es) and allowing the appointed representative to question the witness(es) and make arguments on the claimant's behalf. The ALJ will advise the appointed representative that a Request to Show Cause for Failure to Appear will be sent to the claimant to ask why he or she did not appear at the scheduled hearing and whether a supplemental hearing should be held. After the 10-day response period expires (with an additional five days for mailing time), the ALJ will either:
• Determine that the claimant has constructively waived his or her right to appear for a hearing (if the claimant fails to respond to the Request to Show Cause for Failure to Appear or fails to show good cause for failure to appear at the scheduled hearing), and issue a decision based on the evidence of record; or
• Offer the claimant a supplemental hearing to provide testimony if the claimant establishes good cause for failure to appear at the scheduled hearing.

HALLEX I-2-4-25(D)(2)(b).

         Neither ALJ Kuperstein's decision of November 18, 2015 nor the record evidence suggests that ALJ Kuperstein sent Mandro a Request to Show Cause. In his written decision, ALJ Kuperstein notes the following:

[A]t the claimant's hearing, the claimant's attorney was reminded at the September 9, 2015 hearing that he could send information to me after the hearing as to why his client was not at this hearing. Nevertheless, over two months have passed since the claimant's September 9, 2015 hearing and no further treatment notes from any treating source has been provided by the claimant or his representative to explain why the claimant was not available for his September 9, 2015 hearing or to further support the claimant's alleged impairments. Accordingly, the claimant has constructively waived his right to appear . . . at [sic] hearing.

         In short, ALJ Kuperstein placed the burden on Mandro to come forward with evidence to support his absence at the September 9, 2015 hearing. HALLEX, however, demands that the ALJ take the affirmative step of sending the claimant an order to show cause and, if good cause is shown, that the ALJ offer the claimant an opportunity for a supplemental hearing. The court recognizes that Attorney Rubenstein, who represented to the hearing office on September 8, 2015, that documentation would be forthcoming, may have been granted a supplemental hearing for his client simply by following through and providing that documentation. Nevertheless, under the circumstances, HALLEX clearly places the burden on ALJ Kuperstein to develop good cause and Attorney Rubenstein's underwhelming performance on this matter does not alter that responsibility.

         The Commissioner argues that ALJ Kuperstein was not obligated to send an Order to Show Cause because, “Plaintiff's counsel already alerted the ALJ to the alleged reason Plaintiff did not attend the hearing.” Def.'s Mem. at 34. First, the court is skeptical that the unequivocal mandate of HALLEX that “[t]he ALJ will advise the appointed representative that a Request to Show Cause for Failure to Appear will be sent to the claimant to ask why he or she did not appear at the scheduled hearing” can be read out of the provision whenever a representative provides an explanation for his or her client's absence, particularly since a different, mutually exclusive provision applies to circumstances in which a representative is unable to locate his or her client. Compare HALLEX I-2-4-25(D)(2)(a) (emphasis added) with HALLEX I-2-4-25(D)(2)(b).

         Even assuming, however, that under some circumstances HALLEX's requirement of an Order to Show Cause is rendered unnecessary by the representations of counsel, here the ALJ did not provide to counsel in person the information that was contained in the form. As analyzed above, ALJ Kuperstein simply concluded that, without corroborating evidence to support the illness alleged, Mandro had not shown good cause for his absence. The form that HALLEX directs ALJs to send in order to develop good cause, Form HA-L90, directs the recipient to “[a]ttach all supporting documentation.” Although ALJ Kuperstein stated that Attorney Rubenstein could send “more information” after the hearing, ALJ Kuperstein did not request specific documentation, nor did he inform Attorney Rubenstein that, if he submitted supporting documentation, a supplementary hearing might be granted, or that if he failed to submit documentation ALJ Kuperstein might enter a ruling without it. In fact, the best ...

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