Howe v. Colvin

          For 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.

         For Carolyn Colvin, Acting Commissioner of Social Security Administration, Defendant: Daniel S. Tarabelli, LEAD ATTORNEY, Social Security Administration, Boston, MA.

         ORDER

         John J. McConnell, Jr., United States District Judge.

         Days 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.

         Before 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 complete record.

         I. Background^[1]

         Ms. 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.

         Ms. 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 excuse."

( Id. at 41). The ALJ said she would take the explanation for the error under consideration. Id.

         During the hearing, the ALJ called Dr. John A. Pelletier,^[2] 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 attorney responded:

" 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 ...