United States District Court, D. Rhode Island
Brenda Lois Howe, Plaintiff: Stephen M. Rappoport, LEAD
ATTORNEY, Rappoport, DeGiovanni & Caslowitz, Inc., East
Providence, RI; Michael Joseph Farley, Rappoport DiGiovanni
and Caslowitz, Inc., East Providence, RI.
Carolyn Colvin, Acting Commissioner of Social Security
Administration, Defendant: Daniel S. Tarabelli, LEAD
ATTORNEY, Social Security Administration, Boston, MA.
McConnell, Jr., United States District Judge.
before her Social Security disability hearing, claimant
Brenda Lois Howe's counsel sent the Administrative Law
Judge Martha Bower a medical record that he did not submit
with all of the other records due to a clerical error. The
ALJ, without explanation or comment, refused to accept the
medical record because it was not submitted five days prior
to the hearing in violation of the " Five Day
Rule." See 20 C.F.R. § 405.331(a). Based
on this incomplete record, the All granted Ms. Howe benefits
for a partial period of disability from July 2010 until
October 2011, but not thereafter.
the Court is Ms. Howe's objection to the Magistrate
Judge's Report and Recommendation (R& R) denying her
motion to reverse the ALJ's decision. (ECF No. 23). The
Magistrate Judge found that the All properly rejected the
late record and properly evaluated the medical evidence in
rejecting most of Ms. Howe's disability claim. Because a
review of the record establishes that the ALJ abused her
discretion in refusing to consider the relevant medical
evidence, this Court remands this matter for a further
evaluation of her disability beyond October 2011 based on the
Howe had worked as a shipping and receiving clerk, order
picker, and storage facility rental clerk. She became
disabled from a back and right shoulder work-related injury
in 2009. She applied for disability on August 19, 2011. The
application was denied on February 17, 2012 and upon
reconsideration on February 27, 2012.
Howe requested an ALJ hearing, which was scheduled for March
25, 2013. Four calendar days before the hearing, Ms.
Howe's attorney sent a letter attaching a highly relevant
medical record that was not originally submitted along with
all of the other medical records. The late-submitted record
was a lumbar spine Residual Functional Capacity (RFC)
questionnaire completed on October 7, 2011 by Ms. Howe's
treating neurosurgeon Dr. Deus Cielo. (ECF No. 14 at
589-592). In that document, Dr. Cielo opined that Ms. Howe
had an RFC of less than sedentary work. At the hearing, Ms.
Howe's attorney explained that the late-submission was
due to a clerical error.
" Your honor, unfortunately, it was attached to another
document. When I was reviewing the file, my paralegal found
that it wasn't sent because it unfortunately got attached
to another paper in the file. That's our only
( Id. at 41). The ALJ said she would take the
explanation for the error under consideration. Id.
the hearing, the ALJ called Dr. John A.
Pelletier, a specialist in internal medicine and
pulmonary, as a medical expert, to opine about Ms. Howe's
orthopedic neurological injuries. ( Id. at 51). Ms.
Howe's attorney attempted to cross-examine Dr. Pelletier
using the late-submitted report from Ms. Howe's
neurosurgeon. ( Id. at 55). The ALJ refused to allow
the medical record or the cross-examination. Ms. Howe's
" ATTY: Again, my hands are tied, Your Honor, based on
your ruling because that's where (the excluded record)
she indicates what she can and cannot do.
ALJ: Well . . . if your office was more careful, then the
ruling would be different. I'm sorry.
ATTY: Your Honor, I'll be the first to admit, we are not
perfect and unfortunately I'll ...