KEVIN MCNULTY, District Judge.
Ms. Solma Pagan brings this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) to review a final decision of the Commissioner of Social Security ("Commissioner") denying her claims to Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and Supplemental Security Income ("SSI"), 42 U.S.C. § 1381. For the reasons set forth below, the decision of the Administrative Law Judge ("ALJ") is REMANDED.
Ms. Pagan seeks to reverse a finding that she did not meet the Social Security Act's definition of disability from October 26, 2012 to September 25, 2015. (R. 55; Pl. Br. 1).
The ALJ then submitted written interrogatories to Vocational Expert ("VE") Rocco J. Meola. (R. 381-88). The ALJ forwarded the VE's responses to Ms. Pagan's then-attorney. (R. 390-99). Ms. Pagan requested a supplemental hearing about those interrogatories. (R. 401). A notice was issued for a supplemental hearing on September 4, 2015 at 3:00pm. (R. 253-55). According to Ms. Pagan, she received a phone call on September 3, 2015 from her representative, stating that the hearing might be rescheduled for 11:30am; she would receive a telephone call if the time changed. (R. 39). At 11:15am on September 4, 2015 — i.e., the day of the hearing — Ms. Pagan allegedly received a phone call from her attorney, who asked if she was going to attend the hearing at 11:30am. (R. 39). By that time, Ms. Pagan was unable to attend the hearing because it would take her at least thirty minutes to drive to the hearing office. (R. 39). Ms. Pagan's attorney then allegedly told her that her appearance was not necessary. (R. 39). The supplemental hearing was held on September 4, 2015 at 10:38am, without Ms. Pagan. (R. 47, 39-40, 74-87). VE Meola, Ms. Pagan's attorney Timothy Lodge, and ALJ Richard West attended. (R. 47).
On September 25, 2015, the ALJ issued a decision which found her "not disabled" for purposes of the Social Security Act. (R. 47-55). Ms. Pagan sought review from the Appeals Council. (R. 1-4). At this time her attorneys terminated their relationship with her. (R. 37-38). Ms. Pagan then contracted with different attorneys. (R. 34; Pl. Br. 3-4). Additional evidence was submitted to the Appeals Council, (R. 1090-1154), which was not before the ALJ. (Pl. Br. 4). The Appeals Council found that there were no grounds for further review. (R. 1-4). Ms. Pagan then appealed to this Court, challenging the ALJ's determination that she was not disabled from October 26, 2012 to September 25, 2015. (Pl. Br. 1-4).
To qualify for DIB or SSI, a claimant must meet income and resource limitations and show that she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted (or can be expected to last) for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382, 1382c(a)(3)(A),(B); 20 C.F.R. § 416.905(a); see Illig v. Comm'r Soc. Sec., 570 F. App'x 262, 264 (3d Cir. 2014); Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009).
Under the authority of the Social Security Act, the Social Security Administration has established a five-step evaluation process for determining whether a claimant is entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. This Court's review necessarily incorporates a determination of whether the ALJ properly followed the five-step process prescribed by regulation. The steps may be briefly summarized as follows:
As to all legal issues, this Court conducts a plenary review. See Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to factual findings, this Court adheres to the ALJ's findings, as long as they are supported by substantial evidence. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)). Where facts are disputed, this Court will "determine whether the administrative record contains substantial evidence supporting the findings." Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial evidence "is more than a mere scintilla but may be somewhat less than a preponderance of the evidence." Id. (internal quotation marks and citation omitted).
Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks and citations omitted). When there is substantial evidence to support the ALJ's factual findings, however, this Court must abide by them. See Jones, 364 F.3d at 503 (citing 42 U.S.C. § 405(g)); Zirnsak, 777 F.3d at 610-11 ("[W]e are mindful that we must not substitute our own judgment for that of the fact finder.").
This Court may, under 42 U.S.C. § 405(g), affirm, modify, or reverse the Commissioner's decision, or it may remand the matter to the Commissioner for a rehearing. Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes v. Comm'r of Soc. Sec., 235 F. App'x 853, 865-66 (3d Cir. 2007).
Remand is proper if the record is incomplete, or if there is a lack of substantial evidence to support a definitive finding on one or more steps of the five-step inquiry. See Podedworny, 745 F.2d at 221-22. Remand is also proper if the ALJ's decision lacks adequate reasoning or support for its conclusions, or if it contains illogical or contradictory findings. See Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where the ALJ's findings are not the product of a complete review which "explicitly weigh[s] all relevant, probative and available evidence" in the record. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
ALJ Richard West followed the five-step process in determining that Ms. Pagan was not disabled from October 26, 2012 to September 25, 2015. The ALJ's findings may be summarized as follows:
(R. 52). The ALJ also determined that Ms. Pagan was unable to perform her past relevant work as a babysitter (Dictionary of Occupational Titles ("DOT")# 301.677-010). (R. 54). The demands of that job exceed her RFC. (R. 54).
Therefore, the ALJ ultimately determined that Ms. Pagan was "not disabled" for purposes of the Social Security Act. (R. 55).
Ms. Pagan challenges ALJ West's determination that she was not disabled from October 26, 2012 to September 25, 2015. First, Ms. Pagan claims that the matter should be remanded to consider new and material evidence. (Pl. Br. 13-16). Second, she argues that the ALJ should have considered the evidence evaluated by a different ALJ in a previous disability application that resulted in a denial on October 25, 2012. (Pl. Br. 17).
Third, she alleges that the ALJ did not afford her appropriate notice of her September 4, 2015 supplemental hearing. She claims that this violates her due process rights to notice and an opportunity to be heard. See Matthews v. Eldridge, 424 U.S. 319, 348-49 (1976). Fourth, Ms. Pagan asserts that the ALJ committed errors at step four: She alleges that the ALJ did not adequately consider Ms. Pagan's Function Report or the Third Party Function Report completed by her daughter; properly account for her psychiatric challenges (particularly in light of Dr. Paul Fulford and Dr. Steven Yalkowsky's assessments, which she alleges show a "significant deterioration" in her mental status); or appropriately evaluate her ability to stand throughout the day. (Pl. Br. 17-20). Ms. Pagan argues that the ALJ should have limited her to "sedentary" levels of work.
Ms. Pagan argues that the matter should be remanded to consider new and material evidence. She refers to treatment records, (R. 1090-1155), that she submitted to the Appeals Council, but were not before the ALJ and were not considered in his determination. (Pl. Br. 13).
Under 42 U.S.C. § 405(g), the Court can remand a case to the Commissioner to consider new evidence under limited circumstances:
Id. (sixth full sentence). See Matthews v. Apfel, 239 F.3d 589, 592-93 (3d Cir. 2001); Szubak v. Sec'y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). To justify a so-called "sentence six" remand, the evidence
The evidence proffered by Ms. Pagan meets the criteria for a sentence six remand:
The additional medical evidence from Ms. Pagan may have altered the ALJ's decision, especially since ALJs must counter the opinion of a treating physician with contradictory medical evidence. Dr. Felix Almentero saw Ms. Pagan on several occasions. He reported many times that "Daily activity worsen[s] her condition." (R. 1110, 1114, 1118, 1122, 1128, 1136, 1140, 1150). He describes her work status as "Unable to do any work." (R. 1111, 1115, 1119, 1123, 1127, 1141, 1151). He also opined that Ms. Pagan is limited to lifting up to 10 pounds occasionally (R. 1128, 1141, 1151). This directly conflicts with the ALJ's RFC determination, which provides that she "can lift and/or carry 20 pounds occasionally [and] 10 pounds frequently." (R. 52).
Other doctors, such as Dr. Shailendra Hajela, agreed that "Daily activity worsen[s] her condition," she is "[a]ble to walk short distances," and is "[a]ble to lift up to 10 pounds occasionally." (R. 1093-94). Several medical reports, including ones from Dr. Almentero, report that she experiences significant back pain. (R. 1110, 1114, 1118, 1122, 1128, 1136).
I am not dictating or suggesting the outcome of the claim on remand. I am stating that there is a reasonable possibility that evidence from treating physicians, based on a continuing observation of Ms. Pagan's condition over a period of time, might have changed the outcome. Thus, the new evidence is "material" for the purpose of 45 U.S.C. § 405(g); see Szubak, 745 F.2d at 833.
There are several facts that suggest Ms. Pagan had good cause for not presenting this information to the ALJ. According to Ms. Pagan, she did not get the opportunity to present this evidence at the supplemental hearing because the ALJ changed the time of the hearing without adequate notice. These facts were discussed in Section I, supra. It is unclear whether the alleged lack of notice was the fault of the ALJ or Ms. Pagan's attorney, but it is clear that the attorney did not bring this important, additional evidence to the ALJ's attention. (R. 68-69).
Ms. Pagan can reasonably state that she was not able to submit new evidence at the supplemental hearing because she was not in attendance — and that her absence was not purposeful or culpable. It does not appear that Ms. Pagan is acting in bad faith. As in Szubak, there is no evidence that Ms. Pagan was trying to conceal this new evidence. Id.; see also Hamm v. Astrue, No. 8-5010, 2009 WL 2222799, at *8 (D.N.J. July 22, 2009). Ms. Pagan is now represented by new counsel, who entered the case after the ALJ's decision. See Szubak, 745 F.2d at 834. This counsel has proffered the new medical evidence, which post-dated the original ALJ hearing; it does not appear that Ms. Pagan or her prior counsel withheld this evidence from the record on purpose.
True, the "good cause" requirement is designed to "encourage disability claimants to present to the ALJ all relevant evidence concerning the claimant's impairments." Matthews, 239 F.3d at 595. Otherwise, claimants "might be tempted to withhold medical reports, or refrain from introducing all relevant evidence, with the idea of obtaining another bite of the apple if the Secretary decides that the claimant is not disabled." Szubak, 745 F.2d at 834 (internal quotation marks omitted). Given the particular facts of this case, however, a remand here "presents little danger of encouraging claimants to seek after-acquired evidence, and then to use such evidence as an unsanctioned `backdoor' means of appeal." Szubak, 745 F.2d at 834.
The evidence is new, it is material, and there is a reasonable explanation for Pagan's failure to introduce it earlier. I will therefore remand this case for further consideration.
The new material evidence warrants a remand. There is thus no need to consider Ms. Pagan's other arguments, which include issues of due process and whether the ALJ's determinations were supposed by substantial evidence.
For the foregoing reasons, I will remand to the agency for further evaluation of Ms. Pagan's case. I express no opinion on what the decision should be on remand. An appropriate order accompanies this opinion.