Opinion
19-cv-11480-IT
09-07-2021
CHRISTINE M. VARAD, Plaintiff, v. ANDREW M. SAUL, Commissioner Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION TO REVERSE (D. 12) AND DEFENDANT'S MOTION TO AFFIRM (D. 62)
DONALD L. CABELL, U.S.M.J.
Plaintiff Christine Varad, proceeding pro se, brings this action pursuant to 42 U.S.C. § 405(g) challenging the final decision of the Commissioner of the Social Security Administration (“the Commissioner”) denying her 2013 claim for Title II disability benefits. The plaintiff based her claim on her asserted status as a disabled adult child (DAC), which required her to show she was disabled before the age of 22 and did not engage in substantial gainful activity (SGA) between then and the time of her application. At issue is whether the Commissioner erred in finding that the plaintiff did engage in SGA after turning 22. The plaintiff moves to reverse the Commissioner's decision; the Commissioner cross-moves to affirm. (D. 12, 62). For the reasons stated below, I find that the Commissioner's decision was supported by substantial evidence. I recommend therefore that the Commissioner's motion to affirm be allowed and that the plaintiff's motion to reverse be denied.
Under the Social Security Act, a DAC can seek benefits on the record of her insured parent if the parent has died or is entitled to old-age or disability benefits. 42 U.S.C. § 402(d)(1)(G).
42 U.S.C. § 402(d)(1)(B)(ii) requires a DAC claimant to prove that he or she is under a disability that began before age 22 and existed at the time of application.
I. BACKGROUND
A. Application Process and Initial Review
The plaintiff was born on April 30, 1955. (R. 28). On December 2, 2013, when she was 58, she filed applications for survivor's benefits as a DAC based on the records of her deceased parents. She alleged a disability onset date of September 10, 1971, when she would have been 16. (SSA Administrative Record of the proceedings, pp. 28-35 (R.)).
The SSA's earnings records for the plaintiff indicated that she had received earnings in 1979 and 1980, that is, after she turned 22, from the International Brotherhood of Electrical Workers (IBEW). (R. 98). The plaintiff denied ever having worked for the IBEW and asked the SSA to remove the IBEW earnings from her record. (Id.).
On February 11, 2014, the Commissioner found that the plaintiff did not qualify for DAC benefits because she had failed to show that she was the child of the number holders under whom she sought the benefits. (R. 46-51). The plaintiff submitted a copy of her birth certificate and filed requests for reconsideration. (R. 52-53). This submission presumably resolved this issue where the record reflects that her applications subsequently remained under consideration.
In that regard, on December 11, 2014, the Commissioner denied the plaintiff's applications because she reportedly had performed SGA after the age of 22. (R. 54-56). The SGA finding was apparently based on the earnings attributed to IBEW, which were still on the plaintiff's record despite the plaintiff's request that they be removed. (R. 55).
The plaintiff filed a request for reconsideration and again requested that the IBEW earnings be removed from her record. (R. 115, 154). In response, the Commissioner investigated by asking its Division of Earnings Record Operations (DERO) to determine whether any W-2s had been issued to the plaintiff in 1979 or 1980. (R. 157-58). The DERO subsequently located W-2s that had been issued to the plaintiff for 1979 and 1980. The W-2s were from Shawmut Bank rather than the IBEW and reflected that the plaintiff earned $9318.83 in 1979 and $4804.63 in 1980. (R. 99-100, 159).
The Shawmut earnings apparently had mistakenly been listed as IBEW earnings because of an error regarding the Employer Identification Number (EIN). (R. 57, 83, 155, 159). The correct EIN belonged to Fleet Bank, which Shawmut Bank had merged into at some point after the plaintiff worked there. (R. 159). The plaintiff subsequently acknowledged that she had worked for Shawmut Bank in 1979 and 1980. (R. 85, 87, 118).
On December 11, 2015, and in light of this information, the Commissioner denied the plaintiff's request for reconsideration. (R. 115-117).
B. The Administrative Hearing
The plaintiff requested an administrative hearing, which an Administrative Law Judge (ALJ) convened on January 30, 2017. (R. 21; 119). Prior to the hearing, and as reflected in an August 2016 earnings report, the earnings attributed to the IBEW were deleted. For reasons that are not clear, however, the earnings were not reentered as earnings from Fleet/Shawmut Bank. (R. 20405).
The plaintiff testified at the administrative hearing. (R. 312-30). Among other things, she maintained that multiple and improper changes had been made to her employment and earnings records, including the IBEW/Fleet error, and suggested she might have been the victim of identity theft. (R. 319-20). That being said, the plaintiff admitted that she had worked for Shawmut, but argued in essence that this did not matter, because the removal of any earnings from her earnings record should be viewed as the absence of any earnings, which should constitute conclusive evidence of her eligibility for DAC benefits. (R. 320-325).
II. THE ALJ'S OPINION
On February 8, 2017, the ALJ found that the plaintiff was not entitled to DAC benefits. The ALJ reached this conclusion after finding that the plaintiff had earned more than the allowable limit of $3,360 for 1979, and $3,600 for 1980, and therefore had engaged in SGA during those years. See 20 C.F.R. § 404.1574(b) (setting forth maximum SGA limits); Program Operations Manual System (POMS) RS DI 10501.015, https://secure.ssa.gov/poms.nsf/lnx/0410501015 (last accessed Sept. 5, 2021). As such, the plaintiff had engaged in SGA after the age of 22 and thus could not show that she suffered from a continuous disability from then to the time she applied for her benefits. See 42 U.S.C. § 402(d)(1)(B)(ii). (R. 21-27).
The ALJ acknowledged that the plaintiff's August 2016 SSA earnings record showed no earnings for 1979, and a nominal amount ($239.70) from 1980, and noted that earnings records are presumed to be correct. See POMS RS 01404.003(B)(2). (R. 26). The ALJ explained, however, that the presumption of correctness can be overcome if contrary evidence is presented showing the earnings record is not correct. POMS RS 01404.003(B)(3). The ALJ found that sufficient evidence had been presented to overcome the presumption of correctness here because the DERO had produced W-2s from Shawmut for $9318.83 in 1979 and $4804.63 in 1980, and the plaintiff additionally, and corroboratively, admitted working there during that time and did not dispute the amount of the earnings. (R. 25-26).
The ALJ found further that, to the extent the SSA's Hearing, Appeals and Litigation Law Manual (HALLEX) required the plaintiff's earnings to be verified, the W-2s and her corroborating admission amounted to evidence that was “verifiable, trustworthy, and sufficient to fulfill the requirements of verified material evidence of [SGA] earnings” under the HALLEX. The ALJ explained that while the IBEW “earnings” had been removed from the plaintiff's earnings record, this fact did not conflate with an absence of earnings where the plaintiff herself had requested and effected their removal. (R. 25). The ALJ also noted that, although the records when found were linked to Fleet Bank rather than Shawmut Bank, this did not call their legitimacy into question where (1) Fleet Bank was Shawmut Bank's successor and was listed as the plaintiff's employer merely because the SSA updates its records to use the business name most recently associated with the EIN; and (2) the plaintiff admitted that she had worked for Shawmut and did not dispute the earnings attributed to her. (Id.). Finally, the ALJ found that the W-2s were sufficient to substantiate and clarify the plaintiff's work history and there was no reason to doubt their authenticity. (R. 26).
Chapter I-2-5-72 of the HALLEX provides that “[i]t is not necessary to verify information on the earnings record, unless there is a reason to doubt its accuracy.”
The ALJ also rejected the plaintiff's arguments that (1) her SGA should not count because it did not constitute past relevant work, and (2) her impairment-related work expenses should have been applied to offset the amount of her 1979 and 1980 SGA, which would have brought it below threshold levels. (R. 24, 2627). As the plaintiff has not raised or briefed either of these arguments on appeal, the court deems them waived and does not address them further.
On February 10, 2017, the plaintiff filed a Request for Review of Hearing Decision/Order. (R. 284-86). On April 15, 2019, the Appeals Council granted the plaintiff's request but stated that it intended to adopt the ALJ's findings and granted review only because the ALJ's decision did not contain a list of exhibits as required. (R. 308-11). On June 11, 2019, the Appeals Council adopted the ALJ's finding that the plaintiff was not entitled to DAC benefits on the record of her parents because she had performed SGA after age 22. (R. 8-11).
III. DISCUSSION
The plaintiff argues that the SSA's Office of Disability Adjudication and Review (ODAR) and the Appeals Council were required to verify her earnings where her August 2016 SSA earnings record did not include the Shawmut Bank earnings and the earnings data was thus demonstrably unreliable. She argues that they (via the ALJ) failed to do so and, consequently, the evidence presented was insufficient to overcome the presumption that her August 2016 earnings record was correct. She argues further that the record was not properly verified under the HALLEX.
Although the plaintiff frames the issue(s) as turning on the determinations of the ODAR and Appeals Council, the court frames the discussion in terms of the reasonableness of the ALJ's actions. The ODAR is merely the office under which ALJs perform their duties, and the Appeals Council's determination is relevant here only to the extent it upheld the ALJ's findings and constitutes the final decision for purposes of perfecting the plaintiff's right of appeal.
The Commissioner counters that the ALJ was not required to accept the August 2016 earnings record as dispositive because the plaintiff's Shawmut W-2s along with her admission that she worked there amounted to evidence that was sufficient to show that the earnings record was inaccurate and support the contrary conclusion that she had engaged in SGA. The Commissioner argues that the ALJ acted consistent with the HALLEX but that, even if he did not, the failure was inconsequential because the HALLEX is not binding and does not create any judicially enforceable rights.
A. Standard of Review
A court reviews the findings of an ALJ only to determine whether the findings are supported by substantial evidence, and whether the correct legal standard was applied. Teague v. Colvin, 151 F.Supp.3d 1, 2 (D. Mass. 2015). Substantial evidence to support a decision exists if “a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Id. This court must keep in mind that it is the role of the ALJ, and not this court, to find facts, decide issues of credibility, draw inferences from the record, and resolve conflicts of evidence. Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991).
This court may affirm, modify, or reverse the ALJ's decision, but reversal is warranted only if the ALJ made a legal or factual error in evaluating the plaintiff's claim, or if the record contains no “evidence rationally adequate . . . to justify the conclusion” of the ALJ. Roman-Roman v. Comm'r of Soc. Sec., 114 Fed.Appx. 410, 411 (1st Cir. 2004). This court therefore must affirm the ALJ's decision if it is supported by substantial weight, even if the record could arguably support a different conclusion. Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 144 (1st Cir. 1987).
B. Substantial Evidence Supported the ALJ's Findings
While the ALJ recognized that the plaintiff's August 2016 earnings statement did not include her earnings from Shawmut Bank, and in fact showed virtually no earnings at all, he concluded that the Shawmut W-2s for 1979 and 1980 along with the plaintiff's acknowledgement that she did work there during that time were sufficient to overcome the presumption that her earnings record was correct, and to support the conclusion he reached. (R. 26). The court agrees that the evidence was sufficient to support the ALJ's conclusion.
To begin, the ALJ acknowledged that original reporting indicating that the plaintiff had worked for the IBEW was erroneous, and that the August 2016 earnings record, which enjoys a presumption of correctness, was missing the earnings reflected by the W-2s. However, the ALJ reasonably found the earnings record to not be dispositive where the plaintiff herself had effected the deletion of the Shawmut earnings by asking that the IBEW earnings attributed to her be removed. (R. 25). The ALJ further noted that the early error in attributing IBEW earnings to the plaintiff appeared to reflect nothing more than a mistake in entering the EIN, and that the correct EIN referred to Fleet Bank, Shawmut Bank's successor, whose name was listed because the SSA updates its records to reflect the most recent name of the entity. (R. 23-25). Finally, the ALJ noted that an investigation ultimately impelled by the plaintiff herself led to the DERO's discovery of the W-2s for Shawmut for 1979 and 1980, showing an income in excess of $4,000 during each of these years, and the plaintiff corroborated this evidence where she admitted that she had worked at Shawmut Bank during the time in question and did not dispute the amount of her earnings. (R. 25; 57, 146, 320).
Against this backdrop, the court discerns no error in the ALJ's determination that sufficient evidence existed to overcome the presumption of correctness of the August 2016 earnings record, or in his finding that that same evidence showed the plaintiff had engaged in SGA after turning 22. Indeed, it is difficult to see how the ALJ might have reached any other conclusion where the plaintiff effectively corroborated W-2s for Shawmut Bank showing she earned more than $4,000 each year in 1979 and 1980. As there is no dispute that these earnings exceeded the amount she was permitted to earn for DAC benefits, the ALJ did not err in determining that she had engaged in SGA after the age of 22 and therefore was not entitled to DAC benefits.
C. Assuming it was Binding, the ALJ Complied With the HALLEX
To be sure, the plaintiff argues that, even assuming the ALJ was correct in finding her August 2016 earnings record to be inaccurate, he erred in considering the Shawmut W-2s because he failed as required by the HALLEX to verify their accuracy and trustworthiness. However, and as noted above, the record shows that the ALJ acknowledged Chapter I-2-5-72 of the HALLEX and consciously found that the evidence before him was, consistent with that provision, verifiable, accurate and trustworthy. (R. 24-26). In short, the ALJ was mindful of the HALLEX and found the evidence to be sufficient thereunder.
But even assuming the ALJ failed to consider the HALLEX, courts in this district have concluded that the HALLEX provisions “lack the force of law and create no judicially-enforceable rights.” Mason v. Astrue, Civ. A. No. 08-11957-DPW, 2010 WL 1236305, at *6 n.7 (D. Mass. Mar. 5, 2010) (quoting Bordes v. Comm'r of Soc. Sec., 235 Fed.Appx. 853, 859 (3d Cir. 2007)); see also Narvaez v. Berryhill, Civ. A. No. 17-12580-FDS, 2019 WL 1379874, at *7 (D. Mass. Mar. 27, 2019) (as an internal policy manual, the HALLEX does not bind agency). The First Circuit has also suggested that the HALLEX does not bind the agency. Justiniano v. Soc. Sec. Admin., 876 F.3d 14, 29 (1st Cir. 2017) (“[Social Security] rulings (albeit not the [HALLEX] manual) are binding on the agency”). Consistent with this precedent, this court would find that any failure to follow the HALLEX here, if there was one, would not call the ALJ's findings and determination into question.
IV. CONCLUSION
For the foregoing reasons, I recommend that that the Commissioner's Motion to Affirm (D.62) be GRANTED and that the plaintiff's Motion to Reverse (D. 12) be DENIED.
The parties are hereby advised that under the provisions of Federal Rule of Civil Procedure 72(b), any party who objects to this recommendation must file specific written objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).