Joseph James DeGraff v. Commissioner of Social Security
20-2945-cv
| 2d Cir. | Jun 21, 2021Background
- Plaintiff Joseph J. DeGraff applied in October 2015 for disabled child's insurance benefits (Title II) and SSI (Title XVI), alleging multiple mental health conditions including autism spectrum disorder, ADHD, PTSD, depression, bipolar disorder, and generalized anxiety.
- DeGraff received primary care from Dr. Jeffrey Vuillequez (2012–2017) and mental-health services at Hillside Crestwood Children’s Center from January 2014 through March 2018; Hillside providers included Amy Loblaw and Stefanie Greisch.
- At the March 2018 ALJ hearing, the record lacked Hillside treatment notes from March 2016–2018; the ALJ gave DeGraff’s counsel until the following Friday to seek and submit missing records.
- DeGraff later submitted 132 pages of Hillside treatment notes plus a March 2018 letter but did not file a formal motion to permit a late submission; the ALJ considered the letter but declined to consider the treatment notes under the SSA five‑day rule (20 C.F.R. § 404.935).
- DeGraff argued he had given adequate pre‑hearing notice of Hillside treatment, that his representative had actively sought the records, and that the ALJ failed to develop the record; the ALJ treated the late notes as excluded and denied benefits.
- The Second Circuit held the ALJ erred in refusing to consider the Hillside treatment records and in failing to affirmatively develop the record, and remanded for consideration of the excluded records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ properly excluded Hillside treatment records under the five‑day rule | DeGraff had informed the ALJ pre‑hearing of extensive Hillside treatment and met exceptions (counsel sought records); notice satisfied the rule | ALJ acted within discretion because DeGraff failed to timely submit records and did not move for late submission | ALJ erred: the five‑day rule requires informing the ALJ of evidence; pre‑hearing submissions showed the records’ existence and a clear evidentiary gap, so exclusion was improper |
| Whether the ALJ fulfilled the duty to affirmatively develop the record | ALJ should have requested or obtained missing Hillside records and/or accepted them once produced | ALJ had discretion and was not required to seek every missing note | ALJ failed to develop the record: duty to investigate applies even when claimant is represented; remand required for consideration of the Hillside records |
Key Cases Cited
- Sims v. Apfel, 530 U.S. 103 (2000) (Social Security proceedings are inquisitorial; ALJ must develop the record)
- Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996) (ALJ must affirmatively develop the record even when claimant is represented)
- Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999) (remand appropriate where there are clear gaps and the ALJ failed to seek potentially relevant information)
- Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010) (erroneous exclusion of evidence generally requires remand when the excluded evidence is significantly favorable to claimant)