United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
Perdomo brings this action on behalf of X.M., a minor,
pursuant to 45 U.S.C. § 405(g) to review a final
decision of the Commissioner of Social Security
("Commissioner") denying her claim for child's
Supplemental Security Income ("SSI") under the
Social Security Act ("SSA").
reasons set forth below, I remand this action to the Appeals
Council to consider new evidence.
Perdomo seeks to reverse a decision that her child, X.M., was
not disabled and not entitled to child's SSI. Ms. Perdomo
originally applied for SSI on behalf of X.M. in May 2012,
with a protective filing date of April 30, 2012, when X.M.
was five years old. (R. 170-75, 216). The claim was denied
initially and upon reconsideration on July 9, 2014. (R.
hearing was held before an ALJ on February 7, 2014. (R.
43-66, 100-07). Ms. Perdomo and X.M. testified.
[Id.). On July 11, 2014 die ALJ rendered a decision
denying benefits. (R. 16-37) On December 9, 2015, the Appeals
Council denied Ms. Perdomo's request for review of the
AUJ's decision. (R. 1-4). Ms. Perdomo then appealed to
federal court, where the case was assigned to me. (R. 439-43;
see 16-cv-644 (KM)). On July 21, 2016, I issued a
consent order remanding the case back to the Appeals Council
to vacate its prior denial of Ms. Perdomo's request for
review, allow Ms. Perdomo's representative review the
administrative record and submit a brief, and, finally,
process the request for review. (R. 442; see Consent Order,
DE 9, 16-cv-655 (KM)). After taking those tiiree steps,
January 9, 2017, the Appeals Council denied Ms. Perdomo's
request for review, (R. 419-25), rendering it the final
decision of the Commissioner.
Perdomo appealed to this Court, asserting that the
Commissioner erred in denying benefits or in the alternative
that the case should be remanded for die consideration of
additional evidence. (See DE 1; PI. Br.).
here on Ms. Perdomo's claim tiiat tiie Commissioner erred
in declining to supplement the record to include new school
IEP records, and that this case should be remanded so that
tiiose records can be considered. (PI. Br. p. 30). Because I
agree with that argument, I do not reach her other tiiree
claims of error, which could be mooted on
consider Ms. Perdomo's argument that the Court should
order a "new evidence" remand of the case pursuant
to either "Sentence Four" or "Sentence
Six." (PI. Br. pp. 26-28).
evidence to which Ms. Perdomo refers consists of the December
18, 2015 school records from Newark Board of
Education, Robert Clemente School (hereinafter, the
"December 18, 2015 IEP" or the "2015
IEP")• (DE 18 pp. 27-28; DE 21 pp. 4-5). The SSA
Appeals Council declined to supplement the record to permit
consideration of the information in the 2015 IEP. The basis
for its decision was the date of the records (Dec, 18, 2015),
which fell after the relevant period of alleged disability.
(See R. 420 ("We also looked at the records
from your [IEP], dated December 18, 2015 . . . the
Administrative Law Judge decided your case through July 11,
2014. This new information is about a later time. Therefore,
it does not affect the decision about whether you were
disabled beginning on or before July 11, 2014.").
that the Appeals Council continued, "If you want us to
consider whether you were disabled after July 11, 2014, you
need to apply again." (Id.). It appears that
Ms. Perdomo did apply again in 2016, and that this
time the application for DIB was approved.
all legal issues, this Court conducts a plenary review.
See Schaudeck v. Comm'r of Soc. Sec, 181 F.3d
429, 431 (3d Cir. 1999). As to factual findings, this Court
adheres to the ALJ's findings, as long as they are
supported by substantial evidence. Jones v. Bamhart,
364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. §
405(g)). Where facts are disputed, this Court will
"determine whether the administrative record contains
substantial evidence supporting the findings." Sykes
v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
"Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." Zimsak v. Colvin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation
omitted). Substantial evidence "is more than a mere
scintilla but may be somewhat less than a preponderance of
the evidence." Id. (internal quotation marks
and citation omitted).
court has two options when deciding whether to remand a
Commissioner's decision. When the Appeals Council has
denied review, the court may apply "Sentence Four"
review to "affirm, modify, or reverse the
Commissioner's decision, witii or without a remand based
on the record that was made before the ALJ."
Matthews v. Apfel,239 F.3d 589, 593 (3d Cir. 2001);
see also 42 U.S.C. § 405(g). However, Sentence
Four review is inappropriate when, as here, the claimant asks
the court to review the Appeals Council's decision to not
consider evidence that also was not before the ALJ.
Matthews, 239 F.3d at 594. That being said, the
Court may remand the Case to die Commissioner under
"Sentence Six" review if the claimant seeks to rely
on "new and material" ...