Demico v. Berryhill

Filing 32

RULING. For the reasons stated in the attached Ruling, plaintiff's 26 Motion to Reverse the Decision of the Commissioner is GRANTED, to the extent plaintiff seeks a remand for further administrative proceedings, and defendant's 31 Motion to Affirm the Decision of the Commissioner is DENIED. Signed by Judge Sarah A. L. Merriam on 5/17/2018. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
MARCELLO DEMICO
:
:
v.
:
:
NANCY A. BERRYHILL,
:
ACTING COMMISSIONER OF
:
SOCIAL SECURITY
:
:
------------------------------x

Civ. No. 3:17CV00805(SALM)

May 17, 2018

RULING ON CROSS MOTIONS
Plaintiff Marcello DeMico (“plaintiff”), brings this appeal
under §205(g) of the Social Security Act (the “Act”), as
amended, 42 U.S.C. §405(g), seeking review of a final decision
by the Commissioner of the Social Security Administration (the
“Commissioner” or “defendant”) denying his application for
Disability Insurance Benefits (“DIB”) for the period of December
12, 2002, through March 31, 2005.1 Plaintiff has moved to reverse
that portion of the Commissioner’s decision denying him
benefits. [Doc. #26]. Defendant has filed a cross motion seeking
an order affirming the decision of the Commissioner. [Doc. #31].

As will be discussed below, plaintiff was awarded disability
benefits for a closed period of July 1, 2001, through December
11, 2002. Plaintiff does not contest that aspect of the
Commissioner’s decision. See Doc. #26-2 at 2.
1

~ 1 ~

For the reasons set forth below, plaintiff’s Motion to
Reverse the Decision of the Commissioner [Doc. #26] is GRANTED,
to the extent plaintiff seeks a remand for further
administrative proceedings, and defendant’s Motion for an Order
Affirming the Decision of the Commissioner [Doc. #31] is DENIED.
I.

PROCEDURAL HISTORY2
Plaintiff filed an application for DIB on May 9, 2013,

alleging disability beginning July 1, 2001. See Certified
Transcript of the Administrative Record, compiled on July 28,
2017, Doc. #12 (hereinafter “Tr.”) 221-25.3 Plaintiff’s
application was denied initially on July 19, 2013, see Tr. 11219, and upon reconsideration on May 3, 2014. See Tr. 138-40.
On April 13, 2015, plaintiff, represented by Attorney Alan
Rubenstein, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Eskunder Boyd. See Tr. 40-111.
Vocational Expert (“VE”) Ruth Baruch testified by telephone at
that hearing. See Tr. 87-89, 91-106, 270-74. Plaintiff’s wife,

With his motion, plaintiff provided a Proposed Statement of
Facts. See Doc. #26-1. Defendant “generally adopts the facts as
stated therein[,]” but “has included a narrative of additional
facts which are relevant to the arguments asserted by
Plaintiff[.]” See Doc. #31-1 at 2.
2

Plaintiff’s initial application reflects the date of July 12,
2013. See Tr. 221-25. However, the application states in two
separate areas: “On May 9, 2013, we talked with you and
completed your application for SOCIAL SECURITY BENEFITS.” Tr.
221, 222.
~ 2 ~
3

Kim Alyson also appeared and testified at the administrative
hearing. See Tr. 80-87. On May 12, 2015, the ALJ issued a
partially favorable decision. See Tr. 19-39. On March 2, 2017,
the Appeals Council denied plaintiff’s request for review,
thereby making the ALJ’s May 12, 2015, decision the final
decision of the Commissioner. See Tr. 5-7. The case is now ripe
for review under 42 U.S.C. §405(g).
Plaintiff, now represented by Attorney Ivan Katz, timely
filed this action for review and now moves to reverse that
portion of the Commissioner’s decision finding plaintiff not
disabled from December 12, 2002, through March 31, 2005. [Doc.
#26].4 On appeal, plaintiff argues:
1. The ALJ failed to properly develop the administrative
record;
2. The ALJ’s Residual Functional Capacity (“RFC”)
determination is not supported by substantial evidence;
3. The ALJ’s finding of medical improvement is not
supported by substantial evidence;
4. The ALJ failed to consider plaintiff’s “chronic pain”;
and

Plaintiff received an extension of time through May 18, 2017,
“to commence a civil action for the purpose of reviewing the
decision issued on May 12, 2015, by an Administrative Law
Judge[.]” Tr. 1. The Complaint was filed on May 18, 2017. [Doc.
#1].
~ 3 ~
4

5. The ALJ improperly relied on the testimony of the VE.
See generally Doc. #26-2 at 2-23. As set forth below, the Court
finds that the ALJ failed to properly develop the administrative
record.
II.

STANDARD OF REVIEW
The review of a Social Security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
the determination is supported by substantial evidence. See
Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation
omitted). Substantial evidence is evidence that a reasonable
mind would accept as adequate to support a conclusion; it is
more than a “mere scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). The reviewing court’s responsibility is
to ensure that a claim has been fairly evaluated by the ALJ. See
Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ’s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
~ 4 ~

Commissioner’s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner’s conclusions were supported by substantial
evidence.” (citing Tejada v. Apfel, 167 F.3d 770, 773-74 (2d
Cir. 1999))). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alterations added) (citing Treadwell v. Schweiker, 698 F.2d
137, 142 (2d Cir. 1983)). The ALJ is free to accept or reject
the testimony of any witness, but a “finding that the witness is
not credible must nevertheless be set forth with sufficient
specificity to permit intelligible plenary review of the
record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 26061 (2d Cir. 1988) (citing Carroll v. Sec. Health and Human
Servs., 705 F.2d 638, 643 (2d Cir. 1983)). “Moreover, when a
~ 5 ~

finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, No. 3:13CV00073(JCH), 2014 WL
1304715, at *6 (D. Conn. Mar. 31, 2014) (citing Peoples v.
Shalala, No. 92CV4113, 1994 WL 621922, at *4 (N.D. Ill. Nov. 4,
1994)).
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)). “[W]hether there is substantial evidence
supporting the appellant’s view is not the question here;
rather, we must decide whether substantial evidence supports the
ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58,
59 (2d Cir. 2013) (citations omitted).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual who is
under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
~ 6 ~

To be considered disabled under the Act and therefore
entitled to benefits, a plaintiff must demonstrate that he or
she is unable to work after a date specified “by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
§423(d)(2)(A); 20 C.F.R. §404.1520(c) (requiring that the
impairment “significantly limit[] ... physical or mental ability
to do basic work activities” to be considered “severe”).5

Some of the Regulations cited in this decision were amended,
effective March 27, 2017. Throughout this decision, and unless
otherwise specifically noted, the Court applies and references
the versions of those Regulations that were in effect at the
time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x
801, 805 n.2 (2d Cir. 2012) (applying and referencing version of
regulation in effect when ALJ adjudicated plaintiff’s claim);
see also Alvarez v. Comm’r of Soc. Sec., No. 14CV3542(MKB), 2015
WL 5657389, at *11 n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he Court
considers the ALJ’s decision in light of the regulation in
effect at the time of the decision.” (citing Lowry, 474 F. App’x
at 805 n.2)).
~ 7 ~
5

There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520. In the Second
Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
~ 8 ~

the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given [her] residual functional capacity.” Gonzalez ex rel.
Guzman v. Dep’t of Health and Human Serv., 360 F. App’x 240, 243
(2d Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003));
Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per
curiam)). The RFC is what a person is still capable of doing
despite limitations resulting from his or her physical and
mental impairments. See 20 C.F.R. §404.1545(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that ‘the Social Security Act is a remedial statute to be
broadly construed and liberally applied.’” Id. (quoting Haberman
v. Finch, 418 F.2d 664, 667 (2d Cir. 1969)).

~ 9 ~

IV.

MEDICAL IMPROVEMENT STANDARD
Because this matter presents an issue of medical

improvement after a finding of a closed period of disability,
the Court briefly addresses the standard applied to claims
implicating medical improvement.6
Under the medical improvement standard, the Commissioner
“may terminate benefits to a person previously adjudged to be
disabled only upon substantial evidence that the individual’s
condition has improved to the point that he or she is no longer
disabled[.]” De Leon v. Sec’y of Health & Human Servs., 734 F.2d
930, 936 (2d Cir. 1984) “Medical improvement is defined as any
decrease in the medical severity of a claimant’s impairment
which was present at the time of the most recent favorable
medical decision that he or she was disabled or continues to be
disabled.” Nascimento v. Colvin, 90 F. Supp. 3d 47, 53 (E.D.N.Y.
2015) (citation omitted). “Thus, in order to determine whether
medical improvement has occurred, the SSA must compare the
current medical severity of the impairment to the medical
severity of that impairment at the time of the most recent
favorable medical decision.” Veino v. Barnhart, 312 F.3d 578,

The parties do not contest that the medical improvement
standard discussed herein applies to medical improvement cases
involving a closed period of disability.
6

~ 10 ~

586–87 (2d Cir. 2002) (internal quotation marks omitted)
(quoting 20 C.F.R. §404.1594(b)(7)).7 “A determination that there
has been a decrease in medical severity must be based on
improvement in the symptoms, signs, and/or laboratory findings
associated with [a claimant’s] impairment(s)[.]” 20 C.F.R.
§404.1594(b)(1).
“To determine whether or when a claimant has medically
improved and is no longer entitled to benefits, the SSA
regulations outline an eight-step evaluation process, which
Courts have also applied in closed period cases.” McDonagh, 2017
WL 9286987, at *10. “While the Second Circuit has not directly
ruled on this issue, several other Circuits have found that
indeed the medical improvement standard is appropriate for
closed period disability cases.” Chavis v. Astrue, No.
5:07CV0018(LEK)(VEB), 2010 WL 624039, at *5 (N.D.N.Y. Feb. 18,
2010); see also Carbone v. Astrue, No. 08CV2376(NGG), 2010 WL
3398960, at *13 (E.D.N.Y. Aug. 26, 2010); Deronde v. Astrue, No.
7:11CV0998(GTS)(ESH), 2013 WL 869489, at *2 (N.D.N.Y. Feb. 11,

“For closed period cases like the instant case, the most recent
favorable medical decision for comparison purposes is the
disability onset date.” McDonagh v. Acting Comm’r of Soc. Sec.,
No. 1:16CV08698(VSB)(KHP), 2017 WL 9286987, at *10 (S.D.N.Y.
Nov. 27, 2017), report and recommendation adopted, 2018 WL
2089340 (May 2, 2018).
7

~ 11 ~

2013), report and recommendation adopted, 2013 WL 868076 (Mar.
7, 2013) (“The Second Circuit has not confirmed whether the
eight-step process is appropriate for closed-period disability
cases. District courts in the Second Circuit, however, note that
it is an appropriate standard.” (internal citation omitted)).
The Regulations set forth the eight steps applicable to a
determination of whether a claimant has medically improved. See
20 C.F.R. §404.1594(f). The eight steps are:
(1) whether the claimant is engaged in substantial
gainful activity; (2) if not, whether any of the
claimant’s impairments meets or equals the severity of
the impairments listed in Appendix 1 of Subpart P of
Part 404 of the relevant regulations (“Listing”); (3) if
not, whether there has been a “medical improvement”
demonstrated by a decrease in medical severity; (4) if
so, whether the medical improvement was related to the
claimant’s ability to do work (i.e., whether there has
been an increase in the residual functional capacity
based on the impairment(s) that was present at the time
of the most recent favorable medical determination); (5)
if there has been no finding of medical improvement at
step three, or if any medical improvement was found not
to relate to an ability to work at step four, whether
the exceptions listed in paragraphs (d) and (e) of the
relevant section apply; (6) if medical improvement is
shown to be related to ability to do work, or if one of
the relevant exceptions apply, whether all of the
claimant’s current impairments in combination are
severe; (7) if so, whether claimant can perform previous
work based upon an assessment of the claimant’s residual
functional capacity considering all of the claimant’s
current impairments; and (8) if claimant is unable to
perform past work, whether, given claimant’s residual
functional capacity and considering the claimant’s age,
education, and past work experience, other work exists
in the national economy that the claimant can perform.

~ 12 ~

Galente v. Acting Comm’r of Soc. Sec., No. 1:16CV09981(KHP),
2018 WL 852113, at *11 (S.D.N.Y. Feb. 12, 2018) (citing 20
C.F.R. §404.1594(f)(1)-(8)); see also McDonagh, 2017 WL 9286987,
at *10. “Under this analytical model, the burden rests with the
Commissioner at every step.” Deronde, 2013 WL 869489, at *3.
V.

THE ALJ’S DECISION
By decision dated May 12, 2015, the ALJ found plaintiff

disabled between July 1, 2001, and December 11, 2002. See Tr.
30-31. At step one of the five-step sequential evaluation, the
ALJ found that plaintiff had not engaged in substantial gainful
activity since July 1, 2001, “the date the claimant became
disabled.” Tr. 27. At step two, the ALJ found that from July 1,
2001, through December 11, 2002, plaintiff had the severe
impairment of ulcerative colitis. See id.
At step three, the ALJ found that from July 1, 2001,
through December 11, 2002, that plaintiff did not have an
impairment, or combination of impairments, that met or medically
equaled any of the listed impairments in 20 C.F.R. Pt. 404,
Subpt. P, App. 1. See Tr. 27. The ALJ specifically considered
Listing 5.06 (digestive diseases). See id. Before moving on to
step four, the ALJ found that from July 1, 2001, through
December 11, 2002, plaintiff had the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a)
except he could never climb ladders, ropes or scaffolds,
~ 13 ~

but could have occasionally climbed stairs/ramps,
balance, stoop, and crouch with frequent reaching
overhead. He should have avoided work environments with
exposure to temperature extremes or humidity. The
claimant would have been absent four or more times per
month and would have had unpredictable restroom breaks.
Tr. 27-28.
At step four, the ALJ concluded that from July 1, 2001,
through December 11, 2002, plaintiff was not capable of
performing his past relevant work as a restaurant manager. See
Tr. 29. At step five, after considering plaintiff’s age,
education, work experience and RFC, as well as the testimony of
the VE, the ALJ found that from July 1, 2001, through December
11, 2002, there were no jobs that existed in significant numbers
in the national economy that plaintiff could have performed. See
Tr. 30-31.
Next, applying the eight-step framework for adjudicating
Social Security disability claims involving medical improvement,
the ALJ found that “[m]edical improvement occurred as of
December 12, 2002, the date the claimant’s disability ended.”
Tr. 31. The ALJ then determined that said medical improvement
“is related to the ability to work because there has been an
increase in the claimant’s residual functional capacity[.]” Tr.
32. The ALJ found that
beginning December 12, 2002, and through March 31, 2005,
the claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
~ 14 ~

except he could never climb ladders, ropes or scaffolds,
but could have occasionally climbed stairs/ramps,
balance, stoop, and crouch with frequent overhead
reaching. He should have avoided work environments with
exposure to temperature extremes or humidity.
Id. Based on that finding, the ALJ determined: “Beginning
December 12, 2002, and through March 31, 2005, the date last
insured, the claimant was capable of performing past relevant
work as a restaurant manager.” Tr. 34. The ALJ ultimately
concluded that although plaintiff was disabled from July 1,
2001, through December 11, 2002, that disability ended on
December 12, 2002. See id.
VI.

DISCUSSION
Plaintiff raises several arguments in support of reversal

or remand. Before turning to those arguments, the Court pauses
first to note the relevant time period under consideration.
A.

Relevant Time Period Under Consideration

Plaintiff’s claim is for DIB. See Tr. 221-25. A claimant
seeking DIB for a period of disability must, in addition to
presenting evidence of his or her disability, also satisfy the
“insured status” requirements of the Act. See 42 U.S.C. §423(a),
(c). To be entitled to benefits, a claimant must demonstrate
that he or she was disabled prior to the expiration of his or
her insured status, i.e., his or her date of last insured. See
Pratts v. Chater, 94 F.3d 34, 35-36 (2d Cir. 1996); Shaw v.
~ 15 ~

Chater, 221 F.3d 126, 131 (2d Cir. 2000); Monette v. Astrue, 269
F. App’x 109, 111 (2d Cir. 2008); see also 20 C.F.R. §§404.130,
404.131, 404.315(a), 404.320(b).8 There is no dispute that
plaintiff’s date of last insured is March 31, 2005. See Tr. 27.
Accordingly, the relevant period under consideration is the
alleged onset date of July 1, 2001, and more particularly for
purposes here, the date of medical improvement, December 12,
2002, through the date of last insured, March 31, 2005.
B.

Development of the Administrative Record

Plaintiff contends that the ALJ failed to adequately
develop the administrative record because it does not contain
medical opinions from plaintiff’s treating sources, and does not
contain records from certain of plaintiff’s physicians. See
generally Doc. #26-2 at 2-10. Defendant “disagrees” and responds
that the ALJ sufficiently developed the record. Doc. #31-1 at 9.
“Because a hearing on disability benefits is a nonadversarial proceeding, the ALJ generally has an affirmative
obligation to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996); see also Swiantek v.
Comm’r of Soc. Sec., 588 F. App’x 82, 84 (2d Cir. 2015).

By contrast, to be entitled to an award of Supplemental
Security Income, a claimant must demonstrate that he or she
became disabled at any time before the ALJ’s decision. See Frye
ex rel. A.O. v. Astrue, 485 F. App’x 484, 486 (2d Cir. 2012); 20
C.F.R. §§416.202, 416.203.
~ 16 ~
8

However, “where there are no obvious gaps in the administrative
record, and where the ALJ already possesses a complete medical
history, the ALJ is under no obligation to seek additional
information in advance of rejecting a benefits claim.” Rosa v.
Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citation and
internal quotation marks omitted). Accordingly, the duty to
develop the administrative record is triggered “only if the
evidence before [the ALJ] is inadequate to determine whether the
plaintiff is disabled.” Walsh v. Colvin, No. 3:13CV687(JAM),
2016 WL 1626817, at *2 (D. Conn. Apr. 25, 2016) (internal
quotation marks and citation omitted).
“When an unsuccessful claimant files a civil action on the
ground of inadequate development of the record, the issue is
whether the missing evidence is significant, and plaintiff bears
the burden of establishing such harmful error.” Parker v.
Colvin, No. 3:13CV1398(JGM)(CSH), 2015 WL 928299, at *12 (D.
Conn. Mar. 4, 2015) (quotation marks omitted).
Plaintiff takes issue with the ALJ’s development of the
record, asserting that the ALJ “made no effort to obtain the
opinion of any treating source.” Doc. #26-2 at 2. Defendant
responds, in pertinent part: “At no point during the
[administrative] hearing, despite ample opportunity to do so,
did Plaintiff’s counsel contend that the record was deficient
~ 17 ~

due to a lack of treating medical source opinions.” Doc. #31-1
at 14. Defendant also contends that the ALJ was under no
obligation to further develop the record where there were no
obvious gaps in the record and where the record contained
adequate evidence from which to make a disability determination.
See id. at 9-10.
During the administrative hearing, plaintiff’s counsel
never asserted that the record was deficient. See generally Tr.
40-111. At the administrative hearing stage, plaintiff was
represented by an experienced attorney who specialized in Social
Security proceedings.9 Not only did plaintiff fail to submit any
additional evidence to the ALJ, he also did not submit any
additional evidence to the Appeals Council, despite receiving
notice of his ability to do so. See Tr. 9, 17. Accordingly,
defendant contends that “it is rather specious for Plaintiff to
now argue that this matter be remanded due to the absence of
these documents, despite a sufficient record and Plaintiff’s own
refusal to obtain and submit the very documents which he now
argues are so vital. To find remand necessary under these
circumstances would simply provide savvy claimants and/or their
representatives a hidden mechanism with which to obtain remand.”

Attorney Rubenstein, who represented plaintiff at the
administrative level, has recently retired from practice.
~ 18 ~
9

Doc. #31-1 at 14. The Court appreciates defendant’s frustration,
but the law of this Circuit places the burden on the ALJ, not
the claimant, to develop the administrative record. See Tejada,
167 F.3d at 774 (“[I]t is the rule in our circuit that the ALJ,
unlike a judge in a trial, must affirmatively develop the record
in light of the essentially non-adversarial nature of a benefits
proceeding, even if the claimant is represented by counsel.”
(citation and internal quotation marks omitted)). Thus, “[w]hile
plaintiff has the burden of producing evidence of her
impairments ... it is the ALJ’s burden to affirmatively develop
the record.” Parker, 2015 WL 928299, at *12 n.14.
Indeed, “where there are deficiencies in the record, an ALJ
is under an affirmative obligation to develop a claimant’s
medical history even when the claimant is represented by counsel
or by a paralegal.” Rosa, 168 F.3d at 79; see also Spain v.
Barnhart, No. 02CV4605(FB), 2003 WL 21254782, at *4 (E.D.N.Y.
May 29, 2003) (“[A]n ALJ has an obligation to develop the record
... regardless of whether the claimant is represented by
counsel, if there is a reasonable basis to believe that relevant
medical evidence might be available.” (quoting Shaw, 221 F.3d at
131)). Here, despite defendant’s arguments to the contrary, not
only is there a deficiency in the record, but there was also a
reasonable basis to believe that relevant medical evidence,
~ 19 ~

including treatment notes and retrospective medical opinions,
were available.
There is a significant gap in the record for the time
period under consideration, December 12, 2002, through March 31,
2005. There is only one treatment note of record for the period
between May 29, 2003, and June 25, 2005, when the ALJ found
plaintiff’s condition improved. See Tr. 304 (treatment note
dated March 2, 2004). For the approximately 27 months under
consideration, there are only four treatment notes of record,
dated December 2, 2002, February 27, 2003, May 29, 2003, and
March 2, 2004. See Tr. 304, 306, 308, 317. In that regard,
defendant’s contention that there are no gaps in the record, and
that “the record contains approximately 250 pages of medical
records, spanning the rather short relevant period of less than
four years[,]” Doc. #31-1 at 10 (citing Tr. 275-527), is not
accurate. The records cited to in support of that assertion do
not entirely span the relevant time period now at issue -–
December 12, 2002, to March 31, 2005. Rather, the majority of
those records post-date plaintiff’s date of last insured by
anywhere from two to ten years. See Tr. 328-527.
The record also suggests that other medical records may
have existed that would have been helpful to the ALJ’s
determination. As plaintiff contends, “[t]here are no documents
~ 20 ~

of any sort or description from Dr. Panullo.” Doc. #26-2 at 10.
Evidence of record indicates that Dr. Panullo, a
gastroenterologist, saw plaintiff from the fall of 2005 until
December of 2006. See Tr. 296 (December 21, 2006, treatment note
authored by Dr. Vender: “In my absence in the past 1 1/2 years,
he saw Dr. Panullo, who discussed the use of Remicade.”).
Treatment records confirm this, as they reflect Dr. Vender last
saw plaintiff on June 28, 2005, and directed plaintiff to
follow-up within four months. See Tr. 299-300. Although Dr.
Panullo saw plaintiff after plaintiff’s date of last insured,
“the Second Circuit has held that medical records that post-date
the date last insured may be pertinent evidence of the severity
and continuity of impairments existing before the date last
insured or may identify additional impairments which could
reasonably be presumed to have been present and to have imposed
limitations as of the date last insured.” Carlson v. Barnhart,
No. 3:05CV1584(SRU)(WIG), 2006 WL 2926818, at *5 n.5 (D. Conn.
Aug. 30, 2006); see also Lisa v. Sec’y of Dep’t of Health &
Human Servs. of U.S., 940 F.2d 40, 44 (2d Cir. 1991). Given the
dearth of information for the time period under consideration,
the Court finds that Dr. Panullo’s treatment records could have
been helpful to the ALJ’s determination. This is particularly so
given the cyclical nature of plaintiff’s disorder, see Tr. 299
~ 21 ~

(June 28, 2005, treatment note: “Roughly every three months, he
has a flare of his symptoms[.]”), and the time frame in which
Dr. Panullo treated plaintiff. See Camilo v. Comm’r of the Soc.
Sec. Admin., No. 11CV1345(DAB)(MHD), 2013 WL 5692435, at *18
(S.D.N.Y. Oct. 2, 2013) (“[E]vidence that a claimant suffered
from a disability after the date last insured is relevant to the
question whether the claimant was disabled prior to the date
last insured.” (citation omitted)). The ALJ’s failure to make
any effort to obtain such records is therefore error.10
Most significant, however, is that the ALJ did not attempt
to obtain any retrospective medical opinions regarding
plaintiff’s functional capacity during the relevant time period.
Where “the record contains sufficient evidence from which an ALJ

Each of the four records covering the relevant time period was
sent by plaintiff’s gastroenterologists to plaintiff’s primary
care physician, Dr. Ginsberg. See Tr. 305, 307, 309, 318. This
suggests that Dr. Ginsberg was working with plaintiff’s
gastroenterologists to manage plaintiff’s care. See also Tr.
288-92 (letters from Dr. Vender to Dr. Ginsberg). Yet, as
plaintiff asserts, there are no treatment notes from Dr.
Ginsberg in the record. See Doc. #26-2 at 10. Although there is
no indication that the ALJ made any attempt to obtain these
records, it appears that these records may not exist. See Tr.
122 (“Clmt reports only source Pre DLI GI center of CT.” (sic));
Tr. 131 (“Clmt identified at initial claim that only one source
applied for time period prior to DLI. This MER has been received
and is in the file.” (sic)). Accordingly, the Court finds no
error in the ALJ’s failure to obtain the records from
plaintiff’s primary care physicians, as there is no indication
that such records exist.
10

~ 22 ~

can assess claimant’s residual functional capacity, a medical
source statement or formal medical opinion is not necessarily
required.” Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 8 (2d
Cir. Jan. 18, 2017) (quotation marks and citations omitted); see
also Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d
Cir. 2013) (“[R]emand is not always required when an ALJ fails
in his duty to request opinions, particularly where, as here,
the record contains sufficient evidence from which an ALJ can
assess the petitioner’s residual functional capacity.”).
Defendant emphasizes that point, contending that the record
contains substantial evidence to support the ALJ’s RFC
determination. See Doc. #31-1 at 10-12. The Court disagrees.
Here, there is little evidence -- just four treatment notes -upon which the ALJ relied. This is hardly significant, or
substantial, for a period covering nearly two and one half
years. Thus, given the dearth of evidence upon which the ALJ
based his decision, “it was legal error for the ALJ to rely on
Plaintiff’s lack of evidence from the relevant time period to
deny benefits without first attempting to adequately develop the
record, or to pursue or consider the possibility of
retrospective diagnosis[.]” Rogers v. Astrue, 895 F. Supp. 2d
541, 552 (S.D.N.Y. 2012) (citation and internal quotation marks
omitted)); see also Stewart v. Astrue, No. 10CV3032(DLI), 2012
~ 23 ~

WL 314867, at *10 (E.D.N.Y. Feb. 1, 2012); Pino v. Astrue, No.
09CV3465(DAB)(MHD), 2010 WL 5904110, at *20-21 (S.D.N.Y. Feb. 8,
2010), report and recommendation adopted,

2011 WL 814721 (Mar.

8, 2011).
Additionally, the four records on which the ALJ relied in
no way “shed any light on [plaintiff’s] residual functional
capacity.” Guillen v. Berryhill, 697 F. App’x 107, 108 (2d Cir.
2017) (remanding for further development of the record where the
ALJ failed to obtain a medical source statement from plaintiff’s
treating physician and where the medical records did not “shed
any light on [plaintiff’s] residual functional capacity.”);
Dennis v. Colvin, 195 F. Supp. 3d 469, 474 (W.D.N.Y. 2016)
(Where the “medical findings in the record merely diagnose [the]
claimant’s exertional impairments and do not relate these
diagnoses to specific residual functional capabilities such as
those set out in 20 C.F.R. §404.1567(a) ... [the Commissioner
may not] make the connection himself.” (quoting Deskin v. Comm’r
of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008))). Nor
is there sufficient medical evidence of record, for the time
period under consideration, from which the ALJ could have drawn
a reasonable conclusion.
Defendant further contends that “[i]t is also noteworthy
that any medical source opinion here would have been completed
~ 24 ~

10 years after the end of the relevant period.” Doc. #31-1 at
11. That argument, although compelling, is not supported by the
law in this Circuit. “Consideration of the duty to develop the
record, together with the inclusion of retrospective diagnoses
in the scope of the treating physician rule, produces an
obligation that encompasses the duty to obtain information from
physicians who can provide retrospective opinions about the
claimant.” Lacava v. Astrue, No. 11CV7727(WHP)(SN), 2012 WL
6621731, at *13 (S.D.N.Y. Nov. 27, 2012), report and
recommendation adopted, 2012 WL 6621722 (Dec. 19, 2012). Indeed,
“a retrospective diagnosis by a treating physician is entitled
to controlling weight unless it is contradicted by other medical
evidence or ‘overwhelmingly compelling’ non-medical
evidence.”

Martinez v. Massanari, 242 F. Supp. 2d 372, 377

(S.D.N.Y. 2003) (quoting Rivera v. Sullivan, 923 F.2d 964, 968–
69 (2nd Cir. 1991)). Even the retrospective opinion of a
treating physician who did not treat a claimant during the
relevant time period is “is entitled to significant weight[.]”
Campbell v. Barnhart, 178 F. Supp. 2d 123, 134 (D. Conn. 2001)
(quoting Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir. 1981)).
Accordingly, it does not alter the Court’s analysis that an
opinion elicited from one of plaintiff’s treating physicians
would post-date the relevant time period by over ten years,
~ 25 ~

because “the fact that a treating physician did not have that
status at the time referenced in a retrospective opinion does
not mean that the opinion should not be given some, or even
significant weight.” Monette, 269 F. App’x at 113.
Defendant further contends that “[t]he treatment records
clearly established that Plaintiff was essentially asymptomatic
during the time frame for which he was found not disabled.” Doc.
#30-1 at 12. Although the records relied upon by the ALJ do
reflect that plaintiff was then in good health, they do not
cover the entire period under consideration. This is
particularly significant in light of the cyclical nature of
plaintiff’s disease.
Accordingly, the Court finds the ALJ failed to adequately
develop the record. When a record is incomplete, a decision based
thereon is not supported by substantial evidence. See Pratts, 94
F.3d at 38. In light of this finding, the Court need not reach
the merits of plaintiff’s remaining arguments. Therefore, this
matter is remanded to the Commissioner for further
administrative proceedings consistent with this Ruling. On
remand the Commissioner will address the other claims of error
not discussed herein.
Finally, the Court offers no opinion on whether the ALJ
should or will find plaintiff disabled on remand. Rather the
~ 26 ~

Court finds remand is appropriate for further development of the
record, as discussed herein.
VII. CONCLUSION
For the reasons set forth herein, plaintiff’s Motion to
Reverse the Decision of the Commissioner [Doc. #26] is GRANTED,
to the extent plaintiff seeks a remand for further
administrative proceedings, and defendant’s Motion for an Order
Affirming the Decision of the Commissioner [Doc. #31] is DENIED.
SO ORDERED at New Haven, Connecticut, this 17th day of May,
2018.
__/s/____
__________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

~ 27 ~