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Henegar v. Berryhill

United States District Court, S.D. Indiana, New Albany Division

March 20, 2018

BOCCHICHIO HENEGAR, as Mother and Next Friend of A.H., Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of the Social Security Administration, Defendant.

          ENTRY ON JUDICIAL REVIEW

          TANYA WALTON PRATT, JUDGE

         Plaintiff Bocchichio Henegar (“Henegar”), proceeding pro se, requests judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), denying her child's, (“A.H.”) application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). For the following reasons, the Court REMANDS the decision of the Commissioner for further consideration.

         I. BACKGROUND

         A. Procedural History

         On January 28, 2013, Henegar filed an application for SSI on behalf of A.H., alleging a disability onset date of October 7, 2012, due to asthma, speech problems, and developmental delays. The claim was initially denied on July 15, 2013, and again on reconsideration on September 12, 2013. Henegar filed a request for a hearing on October 2, 2013. A hearing was held before Administrative Law Judge Patrick B. Kimberlin III (the “ALJ”) on January 30, 2015. Henegar and A.H. were present and represented by counsel. On February 25, 2015, the ALJ denied the SSI claim. Following this decision, Henegar, by counsel, requested review by the Appeals Council on March 23, 2015. On July 5, 2016, the Appeals Council denied Henegar's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. On August 18, 2016, Henegar filed this action pro se seeking judicial review of the ALJ's decision pursuant to 42 U.S.C. § 1383(c).

         B. Factual History

         Henegar is A.H.'s biological cousin. A.H. has been in her custody since birth and Henegar legally adopted her in March 2012. A.H. was born on October 7, 2010 and she was two years old when Henegar filed an application for SSI on behalf of a child under age eighteen. The ALJ determined that A.H. had the following severe impairments: mild speech delay, developmental delays and asthma. After considering the evidence of record, the ALJ found that A.H.'s impairments could reasonably be expected to produce the symptoms alleged. However, the ALJ determined that Henegar's statements concerning the intensity, persistence and limiting effects of these symptoms were not entirely credible based on the medical findings submitted for the record. The ALJ determined that A.H. has not been disabled, as defined by the Act, since the application date. Henegar, by counsel, requested review by the Appeals Council decision on March 23, 2015.

         II. DISCUSSION

         In her complaint, Henegar alleges in part that new evidence submitted to the Appeals Council should have been considered along with the claim, showing the need for medication, hospitalization, and “new behaviors”, rather than simply reviewing the judge's decision based on the available evidence of record. (Filing No. 1 at 3-5.) Because Henegar proceeds pro se, the Court will liberally construe her pleadings. See, e.g., Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). In her brief, Henegar asserts that A.H. “has been in Wellstone Psych Hospital 4 times with stays longer than 2 weeks” and “also was diagnosed as a RAD kid from Wellstone which is Reactive Attachment Disorder- meaning [A.H.] will be in and out of psych hospitals all [their] life.” (Filing No. 20 at 1.)

         The Commissioner argues that Henegar's reference to evidence supporting the need for hospitalizations is “dubious, ” pointing out that Henegar was represented at the administrative hearing, did not mention the evidence previously, and has not submitted the evidence now in support of her action for judicial review. (Filing No. 23 at 9-10.)

         The issue of whether the Appeals Council properly rejected an appeal is distinct from whether an ALJ's decision is supported by substantial evidence. Farrell v. Astrue, 692 F.3d 767, 770-71 (7th Cir. 2012). To review additional evidence, the Appeals Council must determine whether the evidence is new and material:

If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the [ALJ] hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the [ALJ] hearing decision. It will then review the case if it finds that the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record.

20 C F.R. § 416.1470(b) (emphasis added). A district court may review de novo whether the Appeals Council made an error of law in applying this regulation. Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997). If an error of law exists, then remand may be appropriate; otherwise, “the Council's decision whether to review is discretionary and unreviewable.” Id. While this Court cannot use evidence that was not before the ALJ to reevaluate the ALJ's factual findings, remand may still be appropriate if the Appeals Council made an error of law. Farrell, 692 F.3d at 770-71. To be added to the administrative record on appeal, evidence must qualify as both new and material. Evidence is considered new if it is new to the administrative record. Farrell, 692 F.3d at 771. New evidence is material if it relates to the period on or before the date of the ALJ hearing and there is a “reasonable probability that the ALJ would have reached a different conclusion had the evidence been considered.” Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005). Evidence is material only if the evidence “speaks to the [claimant's] condition at or before the time of the administrative hearing.” Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008).

         The Court has no doubt that the evidence Henegar references exists. The Appeals Council noted that they reviewed evidence submitted along with the request for review including “records from Wellstone Regional Hospital dated March 30, 2015 through April 4, 2015 (14 pages).” (Filing No. 18-2 at 3.) Regarding the evidence, the Appeals Council noted that the ALJ “decided your case through February 25, 2015. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before February 25, 2015.” (Filing No. 18-2 at 3.) The Appeals Council further directed Henegar that the new evidence would be kept as part of her electronic file in case she wanted to file a new claim on behalf of A.H. asserting disability after February 28, 2015 (noting that if Henegar filed a new claim with 60 days of their notice that they would use the date of claimant's request for review as the date of claimant's application and giving instructions to get a paper copy of the evidence, file a new claim and appeal their order). (Filing No. 18-2 at 3.)

         The record in this action does not contain the entirety of the evidence that was submitted to the Appeals Council because Henegar's “new evidence” is not included. However, Henegar has submitted one page in this action that appears to pertain to the hospitalization at Wellstone beginning March ...


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