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Rembert v. Commissioner of Social Security

United States District Court, E.D. New York

January 7, 2020




         The 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.

         The 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. 35.)

         The ALJ 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.)

         The 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.)


         A 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).


         The 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.

         I. Duty to Develop the Record

         "Social 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) (citations omitted).

         The ALJ 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.").

         The 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.[1] (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), [2] "[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 ...

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