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Marino v. U.S. Social Security Administration

United States District Court, D. New Hampshire

September 19, 2018

Marianne Marino
U.S. Social Security Administration, Commissioner


          Joseph N. Laplante United States District Judge.

         Marianne Marino has appealed the Social Security Administration's (“SSA”) denial of her application for a period of disability and disability insurance benefits. An administrative law judge (“ALJ”) at the SSA ruled that, despite severe impairments, Marino retains the residual functional capacity (“RFC”) to perform past relevant work, and thus is not disabled. See 20 C.F.R. § 404.1505(a). The Appeals Council later denied Marino's request for review, see Id. § 404.967, with the result that the ALJ's decision became the final decision on her application, see Id. § 404.981. Marino then appealed the decision to this court, which has jurisdiction under 42 U.S.C. § 405(g) (Social Security).

         Marino has moved to reverse the decision. See LR 9.1(b). The Acting Commissioner of the SSA has cross-moved for an order affirming the ALJ's decision. See LR 9.1(e). After careful consideration, the court denies Marino's motion and grants the Acting Commissioner's motion.

         I. Applicable legal standard

         The court limits its review of a final decision of the SSA “to determining whether the ALJ used the proper legal standards and found facts upon the proper quantum of evidence.” Ward v. Comm'r of Soc. Sec, 211 F.3d 652, 655 (1st Cir. 2000). It “review[s] questions of law de novo, but defer[s] to the Commissioner's findings of fact, so long as they are supported by substantial evidence, ” id., that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotations omitted). Though the evidence in the record may support multiple conclusions, the court will still uphold the ALJ's findings “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). The court therefore “must uphold a denial of social security . . . benefits unless ‘the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'” Manso-Pizarro v. Sec'y of Health and Human Servs., 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

         II. Background[1]

         The ALJ held a hearing on Marino's application. After the hearing, and more than a month after the deadline for the submission of evidence, Marino submitted a medical opinion form completed by her primary care physician, Dr. Rachael Hamilton. The ALJ found that Marino had not met the requirements of 20 C.F.R. § 405.331(c) and did not admit this evidence into the record.

         Next, the ALJ invoked the requisite five-step sequential evaluation process in assessing Marino's request for disability and disability insurance benefits. See 20 C.F.R. § 404.1520. After determining that Marino had not engaged in substantial gainful activity after the alleged onset of her disability on December 1, 2013, the ALJ analyzed the severity of her impairments. At this second step, the ALJ concluded that Marino had two severe impairments: osteoarthritis of the knees and degenerative disc disease of the lumbar spine, mild.[2]

         At the third step, the ALJ found that Marino's severe impairments did not meet or “medically equal” the severity of one of the impairments listed in the Social Security regulations.[3] See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. After reviewing the medical evidence of record, admitted medical opinions, and Marino's own statements, the ALJ concluded that Marino retained the RFC to perform sedentary work, see 20 C.F.R. § 404.1567, except that she:

can lift ten pounds occasionally and frequently; can frequently stand and walk for two hours and sit for six hours total in an eight-hour workday; has unlimited use of hands and feet to operate controls or push and pull; [can] occasionally balance, stoop, kneel, crouch and crawl and should avoid all exposure to unprotected heights.[4]

         In doing so, the ALJ adopted the opinions of non-examining medical expert Dr. Hugh Fairley.[5]

         Finding that, even limited in this manner, Marino was able to perform her past relevant work as a branch manager and medical case manager, see 20 C.F.R. § 404.1566, the ALJ concluded his analysis and found that Marino was not disabled within the meaning of the Social Security Act.

         III. Analysis

         Marino challenges the ALJ's decision on three grounds, arguing that the ALJ erred by: (1) not admitting her post- hearing submission of evidence into the record; (2) relying on the opinion of Dr. Hugh Fairley despite material changes in the medical evidence of record post-dating that opinion; and (3) failing to consider all of Marino's impairments in the RFC. The court addresses each argument in turn.

         A. Admission of late-submitted evidence

         Marino submitted additional written evidence to the ALJ on September 1, 2016, more than a month after the July 27, 2016, hearing.[6] The evidence consisted of a “Physical Impairment Medical Source Statement” form completed by Dr. Hamilton and dated July 26, 2016.[7] In the accompanying cover letter, Marino's counsel explained that he had initially asked Dr Hamilton to complete the form in March 2016.[8] She responded later the same month, providing a letter instead of completing the form. The letter, which was admitted into the record, included a statement that “we are in the process of getting [Marino] evaluated by physical therapy to see if she requires any physical modifications to working.”[9]

         On July 12, 2016, Marino's counsel asked Dr. Hamilton to reconsider completing the form without a functional capacity evaluation because Marino had informed him that “the only facility in her area that does these and takes her insurance is unable to provide this service to her until the fall.”[10] Dr. Hamilton returned a completed form, dated July 26, 2016, to Marino's counsel on August 31, 2016, and counsel submitted it to the ALJ the following day.[11]

         The ALJ declined to admit the late-filed report of Dr. Hamilton pursuant to 20 C.F.R. § 405.331. This regulation requires that written evidence be submitted “no later than 5 business days before the date of the scheduled hearing.” If evidence is submitted after the hearing but before a decision is issued, the ALJ “may decline to consider the evidence” unless the claimant shows that:

there is a reasonable possibility that the evidence, alone or when considered with the other evidence of record, would affect the outcome of your claim, and:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from submitting the evidence earlier.

20 C.F.R. § 405.331(c).[12]

         The ALJ found that these requirements of paragraph (c) were not satisfied, as “there was ample time to have obtained the completed form and filed it timely for hearing, ” and Marino had not shown that the report had a reasonable possibility of affecting the outcome.[13] He then exercised his discretion to decline to consider the report.[14]

         Marino argues that the ALJ erred both by: (1) failing to find that an unusual, unexpected, or unavoidable circumstance beyond Marino's control prevented earlier submission; and (2) finding no showing of a reasonable possibility of affecting the outcome. One the first point, the court disagrees. Marino has not shown that unusual, unexpected, or unavoidable circumstances beyond her control prevented earlier submission of this evidence. The ALJ was thus not obligated to admit the evidence and the court need not consider whether the report may have affected the outcome of Marino's claim.

         Marino urges that the exceptions to the deadline for evidence submission should be read expansively. As Judge McAuliffe has noted:

[T]he district courts in this circuit seem to disagree as to the precise nature of the burden imposed upon claimants by section 405.331. As noted above, those in Maine have described the claimant's burden as “rather rigorous, ” while those in Rhode Island have held it is less demanding and analogized it to “excusable neglect.” Compare Raymond v. Astrue, No. 1:12-CV-92-DBH, 2012 WL 6913437, at *2 (D. Me. Dec. 31, 2012) with Howe v. Colvin, 147 F.Supp.3d 5, 8 (D.R.I. 2015).

Simard v. Colvin, 2016 DNH 186, 14-15. See Jones v. Berryhill, No. 16-cv-11011-DJC, 2017 WL 3726018, at *11 (D. Mass. Aug. 29, 2017) (Casper, J.) (applying “rather rigorous standard” and citing Raymond). Here, as in Simard, “[t]his court need not weigh in on that issue since, even giving claimant the benefit of the ...

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