United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
DONNELLY, UNITED STATES DISTRICT JUDGE
plaintiff seeks review of the Commissioner of Social
Security's decision that he was not disabled for the
purposes of receiving supplemental security income under
Title XVI of the Social Security Act. For the reasons that
follow, I remand the case for further proceedings.
plaintiff applied for supplemental security income on July
31, 2015, alleging disability as a result of mental health
symptoms associated with bipolar disorder and depression.
(Tr. 13, 182.) After his claim was denied on December 1,
2015. the plaintiff requested a hearing. (Tr. 13.)
Administrative Law Judge Michael Carr held a hearing on
December 7, 2017, at which a vocational expert and the
plaintiff, who was represented by counsel, testified. (Tr.
denied the plaintiffs claim for benefits, concluding he had
the residual functional capacity to "perform a full
range of work at all exertional levels, but with the
following nonexertional limitations:" he could perform
only "simple, routine tasks" and "tolerate
occasional contact with supervisors, co-workers, and the
general public." (Tr. 17.)
Appeals Council denied the plaintiffs request for review on
December 19, 2018. (Tr. 4.) The plaintiff commenced this
action on February 11, 2019, and both parties moved for
judgment on the pleadings. (ECF Nos. 1, 15, 20.)
district court reviewing a final decision of the Commissioner
must determine "whether the correct legal standards were
applied and whether substantial evidence supports the
decision." Butts v. Barnhart, 388 F.3d 377, 384
(2d Cir. 2004) as amended on reh'g inpart, 416
F.3d 101 (2d Cir. 2005). The court must uphold the
Commissioner's factual findings if there is substantial
evidence in the record to support them. 42 U.S.C. §
405(g). "Substantial evidence" is "more than a
mere scintilla" and "means such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation omitted). "Although
factual findings by the Commissioner are 'binding'
when 'supported by substantial evidence, '" the
court will not defer to an ALJ's determination
"[w]here an error of law has been made that might have
affected the disposition of the case." Pollard v.
Halter, 371 F.3d 183, 188-89 (2d Cir. 2004) (quoting
Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)
(internal citations omitted)). Thus, "[e]ven if the
Commissioner's decision is supported by substantial
evidence, legal error alone can be enough to overturn the
ALJ's decision." Ellington v. Astrue, 641
F.Supp.2d 322, 328 (S.D.N.Y. 2009) (citation omitted).
plaintiff alleges two points of error: (1) failure to develop
the record and a resulting misapplication of the treating
physician rule; and (2) improper analysis of the plaintiffs
credibility. Because I agree that the ALJ did not adequately
develop the record or properly evaluate the plaintiffs
credibility, I remand the case for further proceedings.
to Develop the Record
Security proceedings are inquisitorial rather than
adversarial." Sims v. Apfel, 530 U.S. 103,
110-11 (2000). Accordingly, an ALJ "must...
affirmatively develop the record in light of the essentially
non-adversarial nature of a benefits proceeding."
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)
(internal quotation marks and citation omitted).
"Whether the ALJ has met his duty to develop the record
is a threshold question." Craig v. Comm 'r of
Soc. Sec, 218 F.Supp.3d 249, 261-62 (S.D.N.Y. 2016). An
ALJ is obligated to request missing information from a
physician when he "is not able to fully credit a
treating physician's opinion because the medical records
from the physician are incomplete or do not contain detailed
support for the opinions expressed," or where there is a
"clear gap" in the record. Correale-Englehart
v. Astrue, 687 F.Supp.2d 396, 428 (S.D.N.Y. 2010)
gave "limited weight" to the treating medical
source statements prepared by Licensed Clinical Social Worker
Maria Liguori and co-signed by Dr. Tom Tuzel, concluding that
the record did not support their conclusions that the
plaintiff had "relatively severe" limitations. (Tr.
19-20.) The ALJ noted, however, that the medical record was
"sparse" and that the physicians' opinion was
"a checklist form that d[id] not provide an analytical
narrative, but simply refer[ed] to the attached treatment
records." (Tr. 19-20.) According to the ALJ, the
"gap in treatment records" and absence of more
recent treatment records "suggest[ed] that the
[plaintiff]'s mental health symptoms ha[d] stabilized
over time" (Tr. 18-19.) An ALJ should not reject a
treating physician's findings simply because there are
gaps in the record. See Rosa v. Callahan, 168 F.3d
72, 79 (2d Cir. 1999) ("[A]n ALJ cannot reject a
treating physician's diagnosis without first attempting
to fill any clear gaps in the administrative record.").
record suggests that there are additional records. The
plaintiff testified that he was treated three times a week
for about three years at his treating physicians'
facility. (Tr. 41.) The Government, conceding that
the record is "unclear," notes that a state
psychological consultant-whose opinion the ALJ gave
"some weight"-requested additional documents from
the treating physicians but was unable to obtain them. (Tr.
20-1 at 12, 20.) While plaintiffs counsel did not seek to
complete the record (Tr. 38),  "[t]he ALJ's affirmative
duty to develop the record 'exists even when the claimant
is represented by counsel.'" Klemens v.
Berryhill,703 Fed.Appx. 35, 36 (2d Cir. 2017) (summary
order) (citation ...