340 F.Supp.2d 63 (2004) | Cited 4 times | D. Massachusetts | September 20, 2004


This is an action for judicial review of an administrative lawjudge's decision denying Howane Rosado ("Plaintiff"), a juvenile,Supplemental Security Income ("SSI") benefits. Plaintiff assertsthat the administrative law judge's decision was unsupported bysubstantial evidence and that the subsequent decision by theAppeals Council denying review was "egregiously mistaken."Presently before the court is Plaintiff's motion to remand and acorresponding motion by the Commissioner of the Social SecurityAdministration ("Commissioner") to affirm.

With the parties' consent, the matter has been assigned to theundersigned pursuant to 28 U.S.C. § 636(c). For the reasonsindicated below, the court will allow Plaintiff's motion and denythe Commissioner's motion. I. STATUTORY AND REGULATORY BACKGROUND

A child under the age of eighteen is deemed disabled, andtherefore eligible for SSI benefits, only if he "has a medicallydeterminable physical or mental impairment, which results inmarked and severe functional limitations, and which can beexpected to result in death or which has lasted or can beexpected to last for a continuous period of not less than 12months." 42 U.S.C. § 1382c(a)(3)(C)(i). According to theCommissioner's regulations, this definition may be met if thechild has an impairment listed in appendix 1 of subpart P of part404 or if his impairment is medically or functionally equivalentto one of those listed. See 20 C.F.R. §§ 416.926, 416.926a(2004). "Functional equivalency," requires an evaluation of achild's competency in six domains: acquiring and usinginformation, attending and completing tasks, interacting andrelating with others, moving about and manipulating objects,caring for himself and health and physical well being. See20 C.F.R. § 416.926a(b)(1) (2004). Functional equivalency isestablished when a child's impairments "result in `marked'limitations in two domains of functioning or an `extreme'limitation in one domain." 20 C.F.R. § 416.926a(a) (2004).


Plaintiff, who was born in 1991, has been diagnosed withdepression, post traumatic stress disorder, attention deficitdisorder, oppositional defiant disorder and hyperactivity. Thegang-related shooting death of Plaintiff's elder brother and thesevere mugging and later incarceration of his father may havecontributed to these conditions. Behavioral and psychologicalsymptoms experienced by Plaintiff include hearing voices, hallucinations, disruptive and violent behaviorand suicidal thoughts. As observed by Plaintiff's teachers,psychiatrists and mother, however, these symptoms are morecontrolled when Plaintiff is medicated.

Plaintiff also has a learning disability which manifests itselfin difficulty with comprehension of grade-appropriate material,organization and the expression of ideas. In 2001, due tobehavioral and educational problems, Plaintiff's teachers createdan individual education plan ("IEP") to deal with his classroomconduct, and Plaintiff received special education for reading andlanguage arts one hour daily.

Plaintiff first applied for SSI benefits in November of 1999.The application was denied and further review was not sought. OnDecember 12, 2000, Plaintiff filed a second application whichforms the basis of the instant lawsuit. When the application wasdenied, Plaintiff requested a hearing before an administrativelaw judge ("ALJ") which was held on September 12, 2002. Evidencepresented at the hearing included testing scores, reports fromteachers, Plaintiff's IEP, records from two state psychiatrists(Drs. Joseph Litchman and Orin Blaisdell), his mother'stestimony, and records from a long-time treating source at theMt. Tom Clinic.

On September 27, 2002, the ALJ issued a decision unfavorable toPlaintiff, to wit, that his condition was not the functionalequivalent of a listed impairment. In so deciding, the ALJ notedinter alia that, other than on a couple of occasions,Plaintiff's mental status examinations and scores were "prettygood." He also relied predominantly on the opinions of Drs.Lichtman and Blaisdell.

Plaintiff appealed the decision to the Appeals Council andoffered additional evidence from the Mt. Tom Clinic, including a psychiatricservices note dated September 25, 2002, and two assessment formsdated October 23, 2002. On December 11, 2003, the Appeals Councildecided that the new evidence did not provide a basis forchanging the ALJ's decision, thereby making the ALJ's decisionthe final decision of the Commissioner.

As it turns out, Plaintiff filed a third application for SSI inOctober of 2003. That application was approved. What is at issuein the present case, therefore, is Plaintiff's eligibility forSSI benefits from the date of his second application, December12, 2000, through September of 2003.


As indicated, Plaintiff makes two arguments as to why remand isappropriate. First, Plaintiff maintains that the ALJ's decisiondenying him SSI benefits is not based on substantial evidence.Since a court may review such a decision based "solely on theevidence presented to the ALJ," Mills v. Apfel, 244 F.3d 1, 5(1st Cir. 2001), the evidence subsequently presented to theAppeals Council cannot be considered with respect to this firstargument. Second, Plaintiff asserts that the Appeals Council'sdecision to deny review, even in light of the additional evidencefrom the Mt. Tom Clinic, was "egregiously mistaken." Id. Thecourt will address Plaintiff's arguments in turn.

A. The ALJ's Decision

An administrative law judge's decision is conclusive as long asit is grounded in substantial evidence. See 42 U.S.C. §§ 405(g)and 1383(c)(3). Substantial evidence is "such relevant evidence as a reasonable mind might accept asadequate to support a conclusion." Richardson v. Perales,402 U.S. 389, 401 (1971). It is "more than a mere scintilla." Id.Thus, even if the administrative record could support multipleconclusions, a court must uphold the administrative law judge'sdecision "if a reasonable mind, reviewing the evidence in therecord as a whole, could accept it as adequate to support hisconclusion." Ortiz v. Sec'y of Health & Human Servs.,955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marksomitted).

Here, the court believes, the ALJ's decision that Plaintiff'scondition was not the functional equivalent of a listedimpairment is supported by Drs. Blaisdell and Lichtman. Bothdoctors found that Plaintiff had no limitations in the domains ofmoving about and manipulating objects, caring for himself, andhealth and physical well-being. Both also found Plaintiff to beless than markedly limited in the domains of acquiring and usinginformation and attending and completing tasks. In addition, Drs.Blaisdell and Lichtman, respectively, found Plaintiff to have nolimitation and a less than marked limitation in interacting andrelating to others.

Plaintiff's argument faulting the ALJ's finding thatPlaintiff's mental status scores were "pretty good" is not basedon an accurate portrayal of the record. To be sure, Plaintiffcorrectly avers that counselors and psychiatrists had variouslynoted his psychotic periods, need for individualized instruction,problems adjusting to classroom changes and inability to focus.Plaintiff, however, disregards the improvement in his conditionswith medication, which had also been described — if not admitted— by his teachers, psychiatrists and mother. (See AdministrativeRecord ("A.R.") at 191-93, 283-85, 302-08, 311.) Similarly, Plaintiff's relatively lowGlobal Assessment of Functioning ("GAF") score in April of 1999is irrelevant for purposes here. As described, the only pertinentmedical history here falls between October of 2000 and December12, 2002. In short, a complete view of the record reveals thatthe opinions of Drs. Blaisdell and Lichtman, upon which the ALJpredominantly relied, were in fact consistent with the record asa whole.

In addition, the ALJ's credibility determination regarding thetestimony of Plaintiff's mother must stand Considerabledeference is owed to an administrative law judge's credibilityfinding, Dupuis v. Secretary of Health & Human Servs.,869 F.2d 622, 623 (1st Cir. 1989), and that finding is conclusive ifsupported by substantial evidence, see 42 U.S.C. § 405(g).Granted, a finding of credibility "cannot be based on anintangible or intuitive notion about an individual'scredibility." See Social Security Ruling ("SSR") 96-7p,61 Fed. Reg. 34483, 34485 (July 2, 1996). Moreover, an administrative lawjudge is required to have considered "the entire case record andgive specific reasons for the weight given to the individual'sstatements." Id. And while the ALJ here could have been moreexplicit in listing the inconsistencies between the testimony ofPlaintiff's mother and the record, it is not difficult, as theCommissioner has done, to find those inconsistencies. As examplesonly, Plaintiff's GAF score of seventy, his involvement withafter-school activities, and the fact that his behavior waslargely controlled with medication all undermine, to greater orlesser degrees, the testimony of his mother. Accordingly, lookingsolely at the record before the ALJ, the court believes thatthere was substantial evidence to support the decision denyingbenefits. B. The Appeals Council's Decision to Deny Review

With respect to Plaintiff's second argument, the partiesacknowledge that the Appeals Council's discretion in decidingwhich cases should be reviewed is not absolute. See Mills,244 F.3d at 5. Despite the fact "that an Appeals Council decisionrefusing review has all the hallmarks of a discretionarydecision," the First Circuit has explained, "it has been wellestablished that a discretionary decision may be reviewable tothe extent that it rests on an explicit mistake of law or otheregregious error." Id. (citing Service v. Dulles, 354 U.S. 363(1957)). Accordingly, "an Appeals Council's refusal to review theALJ may be reviewable where it gives an egregiously mistakenground for this action." Id. Generally, "egregious" is definedas "[e]xtremely or remarkably bad; flagrant." BLACK'S LAWDICTIONARY (7th ed. 1999).

The facts in Mills are enlightening with respect to the caseat bar. There, the Appeals Council articulated relativelyexplicit grounds for its refusal to review the administrative lawjudge's decision. In a letter separate from its notice denyingreview, the Appeals Council explained that additional evidenceproffered by the claimant was "consistent" with the evidence ofrecord and "`thus' did not provide a basis for disturbing theALJ's decision." Id. at 3. This articulation was essential tothe court's later ability to measure the Appeals Council'sdecision against the egregiousness standard.

In the normal course, this court would have to determinewhether, under Mills, the Appeals Council's rejection of theadditional evidence from the Mt. Tom Clinic was egregious.However, the Appeals Council only sent a generic notice toPlaintiff denying review. Granted, the Appeals Council explainedin its notice that it would have reviewed Plaintiff's case had he presented "new and materialevidence" and had the ALJ's decision been "contrary to the weightof the evidence now in the record." (A.R. at 6.) However, therationale offered by the Appeals Council for its denial of reviewwas simply that the new evidence did "not provide a basis forchanging" the ALJ's decision. (A.R. at 7.) Such broad language,in this court's opinion, falls short of the grounds articulatedand analyzed in Mills. Thus, the court does not know whetherthe Appeals Council decreed Plaintiff's evidence not "new,""immaterial," or not "contrary to the weight of" the otherevidence. As a result, the egregiousness standard is impossibleto apply.1

Further, even a cursory review of the evidence proffered byPlaintiff to the Appeals Council reveals it was new and materialand, perhaps, contrary to the weight of the other evidence. TheSeptember 25, 2002 psychiatric services note, for example,describes Plaintiff as loud and disruptive, extremely anxious,hearing voices, jumpy, distractable and restless. It alsodescribes Plaintiff's three "friends" (whom Plaintiff denied wereimaginary) who told him what to do. More importantly, the October23, 2002 assessment provided to the Appeals Council was apparentlythe first time a treating source indicated that Plaintiff was"markedly" limited in acquiring and using information,interacting and relating to others, caring for himself, andattending and completing tasks, all combined with certain"marked" manifestations of Attention Deficit HyperactivityDisorder. (A.R. at 316-18.) As described, "functionalequivalency" to a listed impairment is established when a child'simpairments "result in `marked' limitations in two domains offunctioning." 20 C.F.R. § 416.926a(a) (2004).

Similar circumstances have led at least one court in thiscircuit to order a remand See Orben v. Barnhart,208 F. Supp. 2d 107, 112, 114-15 (D.N.H. 2002). As is thecase here, the court in Orben was confronted with a somewhatgeneric explanation by the Appeals Council, i.e., that the new evidenceprovided "no basis" for changing the ALJ's disability determination.See id. at 114 n. 4. Unlike the court in Orben, however, this court isunwilling to treat the Appeals Council's generic notice as asufficient articulation of reasons for denying review. Even inMills — where the guidance was also somewhat scant — theAppeals Council at least explained in a separate letter to theclaimant that the additional evidence was "consistent" with theevidence of record. Moreover, at least one other court has foundthat a terse statement such as the one at issue here — that thenew evidence does not provide a basis for changing the ALJ'sdecision — fails to offer any articulable grounds which can bereviewed. See Hawker v. Barnhart, 235 F. Supp. 2d 445, 446 (D.Md. 2002) (holding that Appeals Council committed error when itsimply "concluded that the `additional evidence provided no basisfor changing the Administrative Law Judge's decision'" and did not accompany the conclusion with "any statement regardinghow the additional evidence was evaluated by the Appeals Counciland the weight given to these records").

In this court's estimation, if the Appeals Council is going tobe afforded a highly protective standard, i.e., egregiousness, bywhich its decisions are to be reviewed, it must offer somethingmore than a boilerplate justification for its decision. Cf.Haoud v. Ashcroft, 350 F.3d 201, 207 (1st Cir. 2003) (anadministrative agency's reviewing board "has an obligation to. . . give careful, individualized rational explanations for itsdecisions, and announce its decision in terms sufficient toenable a court to determine it heard and thought and not merelyreacted") (citations and internal quotations omitted). TheAppeals Council is more than able to fulfill this task andrequiring it do so is "neither a novel concept nor a burdensomeobligation." Hawker, 235 F. Supp. 2d at 450 (citing Mills,among other cases in which the Appeals Council explained itsdecision to deny review).

To be sure, the Commissioner attempts to undertake that task inher brief, an effort that is appreciated. However, given the lackof articulation by the Appeals Council itself, the Commissionercan only speculate as to why the Appeals Council rejected thenewly proffered evidence which it claims to have reviewed. Suchspeculation is inappropriate and the court, too, must refrainfrom such guesswork. See Yatskin v. INS, 255 F.3d 5, 9 (1stCir. 2001) ("Following administrative law principles a reviewingcourt should judge the actions of an administrative agency basedonly on reasoning provided by the agency, and not based ongrounds constructed by the reviewing court."); DeLoatche v. Heckler, 715 F.2d 148, 150(4th Cir. 1983) ("Judicial review of an administrative decisionis impossible without an adequate explanation of that decision bythe administrator."). At bottom, the task of articulation is theAppeals Council's at the time it makes its decision, not theCommissioner's post hoc, and it is for that reason that thismatter needs to be remanded.


For the reasons stated, the court ALLOWS Plaintiff's motion toremand and DENIES the Commissioner's motion to affirm. The matteris remanded to the Commissioner for further proceedingsconsistent with this opinion.

1. The court notes that, in her motion to affirm the ALJ'sdecision, the Commissioner cites, in passing, Evangelista v.Sec'y of Health & Human Servs., 826 F.2d 136 (1st Cir. 1987).Evangelista directs a court to determine whether newlyproffered evidence is material and whether a claimant hasestablished good cause for his or her failure to present theevidence in a timely manner to the administrative law judge. Seeid. at 139. See also 42 U.S.C. 405(g) (sentence six) (court"may at any time order additional evidence to be taken before theCommissioner of Social Security, but only upon a showing thatthere is new evidence which is material and that there is goodcause for the failure to incorporate such evidence into therecord in a prior proceeding"). This is a somewhat more forgivingstandard than Mills, at least as far as claimants areconcerned. But Evangelista only applies when the new evidenceis proffered for the first time to the court, not the AppealsCouncil. Thus, Plaintiff has had little choice but to proceedhere under Mills.

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