United States District Court, D. New Hampshire
OPINION NO. 2015
DNH 034 ORDER
LANDYA McCAFFERTY, District Judge.
Dean Poirier applied for, and was denied, both Social Security disability insurance benefits, see 42 U.S.C. § 423, and supplemental security income, see 42 U.S.C. § 1382. He has appealed the Acting Commissioner's decision to deny his applications. Before the court is Poirier's motion to remand his case to the Acting Commissioner, under sentence six of 42 U.S.C. § 405(g). The Acting Commissioner objects. For the reasons that follow, Poirier's motion for a sentence-six remand is denied.
On May 16, 2013, Poirier appeared for a hearing on his claims before a Social Security Administrative Law Judge ("ALJ"). He brought with him his ex-wife and son, who he intended to have testify on his behalf. He was not represented by counsel. In an affidavit, Poirier describes what happened just before his hearing:
We all waited in the Social Security waiting room. When it was time for my hearing, a woman called and said it was my turn and motioned towards the door of the hearing room.
I tried to go into the hearing room with my exwife and son. The woman told me that they could not go in.
After she told me that they could not go in, I explained to her that my ex-wife and son were present to testify about my disability. She told me again that they could not go in.
Cl.'s Mot. to Remand, Poirier Aff. (doc. 10-1) ¶¶ 5-7. He then describes the following conversation between himself and the ALJ, which occurred off the record:
When I entered the hearing room, ALJ [Matthew] Levin asked me if I had representation....
I told him that, "My ex-wife and my oldest son were here to testify on my behalf, but the lady at the desk told me they could not come in."
The ALJ then said "No." By that, I understood that he meant that they could not come into the hearing room.
Id. ¶¶ 8-10.
The ALJ began the hearing by questioning Poirier. After he finished with that, the ALJ turned to the vocational expert, but did not ask Poirier about the witnesses he had previously mentioned to the ALJ off the record. See Administrative Transcript (hereinafter "Tr.") 47. After the ALJ finished questioning the vocational expert, he asked Poirier: "Do you have any questions for the vocational expert or anything else you want to tell me?" Tr. 52. Poirier offered some further testimony, but did not ask to introduce testimony from his exwife or son. See Tr. 52-53.
In his decision, the ALJ discussed Poirier's testimony about the symptoms of his impairments, but found that his "statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely credible for the reasons explained in this decision." Tr. 17. Those reasons included lack of support from: (1) the objective medical findings; (2) Poirier's treatment records; and (3) his activities of daily living. See Tr. 17-19. The ALJ did not identify a ...