UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Gayle Palombo
v. Civil No. 17-cv-284-LM Opinion No. 2018 DNH 132 Nancy A. Berryhill, Acting Commissioner of Social Security
O R D E R
Gayle Palombo seeks judicial review, pursuant to 42 U.S.C.
§§ 405(g) & 1383(c)(3), of the decision of the Acting
Commissioner of the Social Security Administration, denying her
application for disability insurance and Supplemental Security
Income benefits. Palombo moves to reverse the Acting
Commissioner’s decision, and the Acting Commissioner moves to
affirm. Separately, Palombo moves for leave to file a response
to the Acting Commissioner’s surreply and requests clarification
of the local rules with regard to social security disability
cases. The court addresses the latter issue first, before
evaluating the merits of Palombo’s appeal. For the reasons
discussed below, Palombo’s motion for leave to file a response
is denied, Palombo’s motion to reverse is granted in part, and
the Acting Commissioner’s motion to affirm is granted in part. I. Motion for Leave to File Response to Surreply
On April 4, 2018, Palombo filed a reply to the Acting
Commissioner’s motion for an order affirming her decision. See
doc. no. 20. On April 9, 2018, the Acting Commissioner filed a
surreply. See doc. no. 21.
More than a month later, on May 14, 2018, Palombo filed a
motion for leave to file a response to the Acting Commissioner’s
surreply. See doc. no. 23. In addition to requesting leave to
file a response, Palombo’s motion asks the court to “expressly
clarify” that under Local Rule 9.1, the Acting Commissioner is
prohibited from filing a surreply without first seeking leave of
the court. Id. at 2. Palombo requests that the court either
allow her to file her proposed response to the Acting
Commissioner’s surreply or strike the surreply.
Local Rule 9.1, which governs social security disability
cases, provides: “The plaintiff may file a reply memorandum
pursuant to LR 7.1(e)(1). Neither party shall otherwise be
required to file an objection to the other party’s motion.”1
Local Rule 7.1(e)(3) provides: “If a reply has been filed either
as of right pursuant to LR 7.1(e)(1) or by court order under LR
7.1(e)(2), a surreply may be filed within five (5) days of the
1 LR 9.1 was amended on May 7, 2018, after Palombo filed her reply and the Acting Commissioner filed her surreply. The quoted language was formerly contained in LR 9.1(e) and is now contained in LR 9.1(d).
2 date the reply was filed.” In other words, once a party files a
reply pursuant to Local Rule 7.1(e)(1), the other party may file
a surreply within five days without seeking leave from the
court.
Considering all of these provisions, the Acting
Commissioner is allowed to file a surreply without requesting
the court’s permission, and the surreply need not be stricken.
Furthermore, Palombo cites no authority that would allow her to
file a response to the Acting Commissioner’s surreply.
Accordingly, Palombo’s motion is denied.
II. Palombo’s Appeal
a. Standard of Review
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.” Nguyen v. Chater,
172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276
F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ’s
factual findings as long as they are supported by substantial
evidence. 42 U.S.C. § 405(g); see also Fischer v. Colvin, 831
F.3d 31, 34 (1st Cir. 2016). “Substantial evidence is more than
a scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
3 Astralis Condo. Ass’n v. Sec’y Dep’t of Housing & Urban Dev.,
620 F.3d 62, 66 (1st Cir. 2010).
In determining whether a claimant is disabled, the ALJ
follows a five-step sequential analysis. 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). The claimant “has the burden
of production and proof at the first four steps of the process.”
Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The
first three steps are (1) determining whether the claimant is
engaged in substantial gainful activity; (2) determining whether
she has a severe impairment; and (3) determining whether the
impairment meets or equals a listed impairment. 20 C.F.R.
§§ 404.1520(a)(4)(i)-(iii), 416.920(a)(4)(i)-(iii).
At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work
setting despite her limitations caused by impairments, id.
§§ 404.1545(a)(1), 416.945(a)(1), and her past relevant work,
id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant
can perform her past relevant work, the ALJ will find that the
claimant is not disabled. See id. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv). If the claimant cannot perform her past
relevant work, the ALJ proceeds to Step Five, in which the ALJ
has the burden of showing that jobs exist in the economy which
4 the claimant can do in light of the RFC assessment. See id. §§
404.1520(a)(4)(v), 416.920(a)(4)(v).
b. Background2
This is Palombo’s second application for disability
insurance and Supplemental Security Income (“SSI”) benefits.
Palombo filed her first application in February 2012. In the
first application, Palombo alleged disabilities of spurs and
deterioration of spine, arthritis, tendonitis, depression,
speech problems, knee issues, and obesity. The Social Security
Administration denied the first application on initial review
and, in December 2012, it denied the application again on
reconsideration. Palombo did not further proceed with the first
application.
One year later, Palombo filed the present application,
seeking both disability insurance and SSI benefits. She alleged
that she was disabled because of depression, anxiety, spinal
stenosis of the back and neck, arthritis, and asthma. At the
time of her application, Palombo was 47 years old, had a high
school education, and had previously worked as a telemarketer,
short order cook, waitress, and factory laborer.
During initial review, the Social Security Administration
denied both her request for disability insurance benefits and
2 A detailed statement of the facts can be found in the parties’ Joint Statement of Material Facts (doc. no. 19).
5 her request for SSI benefits. As to the former, the agency
determined that, because Palombo’s alleged onset date (November
2011) was later than her date last insured (September 2011), she
was not entitled to disability insurance benefits.3
As to SSI benefits, the agency denied Palombo’s application
on the ground that she is not disabled. Palombo thereafter
sought a hearing before an ALJ, which was held on February 25,
2016. Palombo was represented by an attorney and testified at
the hearing. Ruth Baruch, a vocational expert, also appeared
and testified.
i. Hearing & Record Evidence
For purposes of the present order, the court need only
discuss the evidence relating to one of the limitations to
Palombo’s functional capacity: her borderline intellectual
functioning. At the hearing, Palombo testified that she was
enrolled in a special education program during high school.
Palombo did most of her coursework in special education classes
and only took a couple of regular classes. Admin. Rec. at 46.
Medical sources in the record show that Palombo’s
intellectual functioning is in the borderline to low-average
3 “Date last insured refers to the date before which the plaintiff must prove disability in order to be eligible for disability benefits.” Schupp v. Barnhart, No. 3:02CV103, 2004 WL 1660579, at *2 n.2 (D. Conn. Mar. 12, 2004) (citing applicable statutes and regulations).
6 range. In 2012, Dr. Donna Gates, Ph. D, conducted a
consultative examination for purposes of Palombo’s first
application. Dr. Gates administered the Wechsler Adult
Intelligence Scale-IV, and Palombo received a verbal
comprehension score of 72, a full-scale IQ of 76, and a score of
3 in arithmetic ability. Dr. Gates considered these test
results to be an accurate reflection of Palombo’s intellectual
abilities, which Gates estimated to be in the borderline range.
In 2014, Dr. Edward Quinn, Ph. D, came to a similar conclusion
after a consultative examination. He opined that Palombo’s
intelligence “appears to be in the borderline to low average
range.” Id. at 544.
In 2014, Dr. Thomas Knox, Ph. D., a non-examining agency
consultant, evaluated Palombo’s mental impairments for purposes
of reconsideration of her present application. Dr. Knox
concluded that Palombo’s intellectual abilities resulted in
functional mental limitations. For example, Dr. Knox found
that, based on her borderline to low-average intelligence,
Palombo had markedly limited abilities to understand, remember,
and carry out detailed instructions, and was even moderately
limited in her ability to understand and remember very short and
simple instructions.
At the hearing, the ALJ posed hypothetical questions
regarding job availability to Ruth Baruch, the vocational
7 expert, which were based in part on Palombo’s mental
limitations. Baruch testified that a person who could perform a
limited range of light work—with limitations on concentration,
persistence, or pace, and with the ability to understand,
remember, and carry out simple tasks—could still perform a
number of jobs that exist in significant numbers in the national
economy. Palombo’s counsel asked Baruch whether a full-scale IQ
below the tenth percentile nationally would affect a person’s
ability to perform unskilled jobs. Baruch answered that
question in the negative, stating that it is “not uncommon for
people to work those kind of jobs with something below 10
percent.” Id. at 55.
After the hearing, Palombo submitted a letter and attached
affidavit to the ALJ. In the letter, dated March 7, 2016,
Palombo’s counsel states as follows:
As you know, it is the stated policy of the agency that whenever a VE is used, the claimant has the right to review and respond to the VE evidence prior to the issuance of a decision. Enclosed please find the affidavit of David Meuse, a vocational expert. This affidavit represents my client’s response to the VE evidence given in the case.
Doc. no. 9-2 at 1. In the attached affidavit, Meuse states that
a person with Palombo’s intellectual-testing scores—an IQ of 76,
a verbal I.Q. of 72, and an arithmetic score of 3—would be in
the fifth percentile in those abilities. Meuse opines that this
“would be very limiting,” because “[a]lmost all competitive
8 employment would require being at least above ten percent in all
three of those areas.” Id. at 3. He notes that “even basic
jobs” like garbage collector, sandwich board carrier, and
harvest worker require such skills “above the lowest ten percent
or higher.” Id. Meuse states that a person with those
abilities would “typically require a special accommodation” or
would need to learn the job “in a sheltered workshop setting
rather than in competitive employment.” Id. The affidavit is
dated March 4, 2016.
Based on the date of the letter, it appears that Palombo’s
counsel submitted the affidavit less than two weeks after the
hearing. But the ALJ took no action with respect to the letter:
she did not assign it an exhibit number, place it into the
record, or discuss it in her decision.
ii. ALJ’s Decision
The ALJ issued her decision on April 1, 2016. At step one,
the ALJ found that Palombo had not engaged in substantial
gainful activity since December 2013, her application date. The
ALJ then found that Palombo has severe impairments of borderline
intellectual functioning, right shoulder rotator cuff strain,
history of right knee arthroscopic medial meniscus tear with
residual degenerative changes, degenerative disc disease of the
lumbar spine, morbid obesity, and “a question of asthma in a
9 smoker.” Admin. Rec. at 15. At step three, the ALJ found that
Palombo’s impairments do not meet or equal a listed impairment.
At step four, the ALJ concluded that Palombo has the
residual functional capacity to perform a limited range of light
work, with one limitation being that Palombo has the ability to
understand, remember, and carry out simple tasks. The ALJ
determined that Palombo is unable to perform any past relevant
work. At step five, the ALJ relied on Baruch’s testimony to
conclude that there are jobs that exist in significant numbers
in the national economy that Palombo can perform. Therefore,
the ALJ found that Palombo is not disabled within the meaning of
the Social Security Act. The Appeals Council denied Palombo’s
request for review, making the ALJ’s decision the Acting
Commissioner’s final decision.
c. Discussion
Before discussing Palombo’s arguments on appeal, the court
addresses a preliminary issue. In her present application,
Palombo seeks both disability insurance benefits and SSI
benefits. The ALJ determined that, because Palombo was found to
be not disabled as of the date last insured in her first
application, res judicata bars Palombo from relitigating the
issue in the present application. Palombo does not directly
challenge the ALJ’s use of res judicata. Instead, she contends
only that the ALJ should have construed her present application
10 as an implied request to reopen her first application for
disability insurance benefits, and she asserts that the ALJ
should have granted that request.
This argument does not merit relief. The Acting
Commissioner correctly notes that “the refusal to reopen a prior
final decision is not judicially reviewable absent a colorable
constitutional claim.” Doc. no. 17-1 at 10; see Alazawy v.
Colvin, No. 2:16-cv-240-JHR, 2016 WL 7441623, at *13 (D. Me.
Dec. 26, 2016); Nerich v. Colvin, No. 13-cv-396-PB, 2014 WL
6453307, at *5 (D.N.H. Nov. 17, 2014). Palombo raises no
constitutional claim. Consequently, even if Palombo’s
application could be construed as an implied request to reopen,
the court has no jurisdiction to consider Palombo’s argument.4
For that reason, the ALJ’s decision is affirmed with respect to
Palombo’s claim for disability insurance benefits.
The court next turns to Palombo’s present claim for SSI
benefits. Palombo asserts that the ALJ committed a number of
errors in finding her not disabled. The court need only address
one, however. Palombo argues that the ALJ erred by failing to
address or consider the opinion of her vocational expert, David
Meuse. The Acting Commissioner responds that the ALJ “properly
4 Likewise, Palombo’s assertion that her previous SSI claim should have been reopened fails on the same basis.
11 did not admit the evidence into the record.” Doc. no. 17-1 at
9-10.
As an initial matter, the parties disagree over the legal
standard that applies to their dispute. Palombo contends that
Social Security Ruling (“SSR”) 96-9p gives her the right to
submit such rebuttal evidence. SSR 96-9p provides in pertinent
part:
At the hearings and appeals levels, vocational experts (VEs) are vocational professionals who provide impartial expert opinion during the hearings and appeals process either by testifying or by providing written responses to interrogatories. A VE may be used before, during, or after a hearing. Whenever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision. The VE's opinion is not binding on an adjudicator, but must be weighed along with all other evidence.
SSR 96-9p, 1996 WL 374185, at *9 n.8 (July 2, 1996) (emphasis
added).
By contrast, the Acting Commissioner cites 20 C.F.R. §
405.331(c) as the relevant authority. That regulation sets
forth the so-called “Five Day Rule,” which requires an applicant
to submit any written evidence “no later than 5 business days
before the date of the scheduled hearing.”5 Howe v. Colvin, 147
5 The court references the version of the regulation that existed at the time of the ALJ’s decision. The regulation has since been modified and incorporated into other sections. See Mathers v. Berryhill, No. 2:17-cv-62-JHR, 2018 WL 1040245, at *3 n.2 (D. Me. Feb. 23, 2018) (discussing changes).
12 F. Supp. 3d 5, 7 (D.R.I. 2015) (quoting 20 C.F.R. § 405.331(a)).
If an applicant misses the deadline and “wish[es] to submit
evidence after the hearing and before the hearing decision is
issued,” the ALJ will accept the evidence if the applicant makes
two showings. 20 C.F.R. § 405.331(c). The applicant must first
establish that “there is a reasonable possibility that the
evidence, alone or when considered with the other evidence of
record, would affect the outcome of [the] claim.” Id. And, as
is relevant here, the applicant must also show that “[s]ome
other unusual, unexpected, or unavoidable circumstance beyond
[the applicant’s] control prevented [her] from submitting the
evidence earlier.” Id. § 405.331(c)(3). Importantly, however,
even if these requirements are not met, the ALJ still has the
discretion to consider the evidence. Id. § 405.331(a) (stating
that an ALJ “may decline” to consider evidence submitted late);
see also Howe, 147 F. Supp. 3d at 7.
The court need not definitively resolve which standard
applies under these circumstances, because the court concludes
that the case must be remanded even if § 405.331 applies. In
the first place, it is unclear whether the ALJ relied upon §
405.331 to justify rejection of the affidavit. In her decision,
the ALJ does not reference Meuse’s affidavit or evaluate its
admissibility under § 405.331. To the extent the ALJ did rely
on the regulation to reject the submission of the affidavit, she
13 never explained her reasoning, which prevents the court from
conducting any meaningful judicial review. That error justifies
remanding the case.6 See Howe, 147 F. Supp. 3d at 8 (concluding
that ALJ erred by rejecting medical record under 20 C.F.R. §
405.331, given, inter alia, “the ALJ's complete failure to
explain her rationale for rejecting the document”); see also
Donnersbach v. Astrue, No. 1:10-cv-135, 2011 WL 294519, at *6-7
(N.D. Ind. Jan. 25, 2011) (remanding case where ALJ failed to
“minimally articulate his rationale” for denying claimant an
opportunity to question author of post-hearing medical report).
The need for explanation is particularly acute here, as
Palombo presents a viable case for relief under § 405.331(c).
Under the regulation, the first hurdle is that a claimant must
show “there is a reasonable possibility that the evidence, alone
or when considered with the other evidence of record, would
affect the outcome of [the] claim.” 20 C.F.R. § 405.331(c).
Here, Meuse opines that “[a]lmost all competitive employment”
would be unavailable to a person with Palombo’s level of
intellectual functioning. Doc. no. 9-2 at 3. This would appear
6 Moreover, absent any explanation by the ALJ, the Acting Commissioner’s argument regarding § 405.331 appears to be no more than a post hoc rationalization of what occurred below. See Castro v. Acting Comm’r, Social Sec. Admin., No. 17-cv-399- JD, 2018 WL 1509078, at *3 (D.N.H. Mar. 27, 2018) (“[T]he court cannot affirm an agency decision, including a decision of the Acting Commissioner of Social Security, based on post hoc rationalizations that were not part of the decision.”).
14 to be highly probative to step five of the evaluation process,
and the Acting Commissioner does not argue otherwise.
Next, the claimant must show an unusual, unexpected, or
unavoidable circumstance beyond her control that prevented her
from submitting the evidence earlier. 20 C.F.R. §
405.331(c)(3). By definition, rebuttal evidence of this kind
could not have been submitted earlier, “since the claimant has
no clue to what the vocational expert will testify until the end
of the hearing.” McClesky v. Astrue, 606 F.3d 351, 354 (7th
Cir. 2010) (noting that “submission and consideration of post-
hearing evidence are common in social security disability
cases,” especially affidavits used “to rebut vocational ‘expert’
testimony which cannot be anticipated prior to hearing”). Thus,
the late submission of Meuse’s affidavit could be viewed as
“unavoidable” for purposes of § 405.331(c)(3).7
This is not to say that Palombo unequivocally satisfied the
requirements of § 405.331(c), but only to point out the
necessity for the ALJ to address the issue and provide
sufficient reasons to justify the exclusion of the affidavit.
7 The Acting Commissioner also appears to fault Palombo for failing to identify how she met the requirements of § 405.331 in her letter to the ALJ. The court does not find this argument persuasive. Even if not stated explicitly in terms of § 405.331, the materiality of the affidavit, and the justification for its late submission, are apparent from casual examination of the letter and affidavit.
15 Because the ALJ failed to do so, the case must be remanded for
further proceedings.
Given this outcome, the court need not address Palombo’s
remaining claims of error. The ALJ may address those issues, if
necessary, upon remand.
CONCLUSION
For the foregoing reasons, Palombo’s motion to reverse
(doc. no. 9) is granted in part, and the Acting Commissioner's
motion to affirm (doc. no. 17) is granted in part. The court
affirms the Acting Commissioner’s decision as it relates to
Palombo’s claim for disability insurance benefits, and otherwise
vacates the decision and remands the case for further
proceedings. Palombo’s motion for leave to file a response
(doc. no. 23) is denied. The clerk of the court shall enter
judgment in accordance with this order and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
June 25, 2018
cc: Counsel of Record