Garzon v. Berryhill

Filing 28

ORDER REMANDING DECISION OF COMMISSIONER OF SOCIAL SECURITY. For the reasons stated in the accompanying ruling, Garzon's motion to reverse the decision of the Commissioner (Doc. # 22 ) is GRANTED IN PART insofar as the Commissioner's decision is remanded, and the Commissioner's motion to affirm the decision of the Commissioner (Doc. # 24 ) is DENIED. The Clerk of Court shall close this case. It is so ordered.Signed by Judge Jeffrey A. Meyer on 5/20/2019. (Rubin, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ANNA L. GARZON,
Plaintiff,
No. 3:18-cv-00799 (JAM)

v.
NANCY A. BERRYHILL,
Defendant.

ORDER REMANDING DECISION OF COMMISSIONER OF SOCIAL SECURITY
Plaintiff Anna Garzon asserts that she is disabled and unable to work due to several
conditions. She filed this action pursuant to 42 U.S.C. § 405(g) seeking review of a final decision
of defendant Nancy A. Berryhill, Acting Commissioner of Social Security, who denied Garzon’s
application for disability benefits. Garzon has filed a motion to reverse the Commissioner’s
decision (Doc. #22), and the Commissioner has filed a motion to affirm the Commissioner’s
decision (Doc. #24) For the reasons set forth below, I will grant the motion to remand and deny
the motion to affirm the decision of the Commissioner.
BACKGROUND
I refer to the transcripts the Commissioner provided. See Doc. #21-1 through Doc. #2116. Garzon filed an application for social security disability income on March 24, 2016, alleging
a disability beginning on February 2, 2016. Doc. #21-7 at 3-4. Garzon’s claim was initially
denied on July 6, 2016, Doc. #21-8 at 3, and denied again upon reconsideration on August 17,
2016, id. at 9. She then filed a request for a hearing on September 6, 2016. Id. at 12.
Garzon appeared and testified at a hearing in New Haven before Administrative Law
Judge (ALJ) Eskunder Boyd on September 1, 2017. Doc. #21-6 at 44. Garzon was not
represented by counsel. Id. at 46. On December 18, 2017, the ALJ issued a decision concluding
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that Garzon was not disabled within the meaning of the Social Security Act. See Doc. #21-2 at
36. The Appeals Council denied Garzon’s request for review on March 28, 2018. Id. at 2. Garzon
then filed this case on May 10, 2018. Doc. #1.
To qualify as disabled, a claimant must show that she is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not less
than 12 months,” and “the impairment must be ‘of such severity that [the claimant] 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.’” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir.
2015) (quoting 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national
economy when it exists in significant numbers either in the region where [a claimant] live[s] or
in several other regions of the country,” and “when there is a significant number of jobs (in one
or more occupations) having requirements which [a claimant] [is] able to meet with his physical
or mental abilities and vocational qualifications.” 20 C.F.R. § 416.966(a)-(b); see also Kennedy
v. Astrue, 343 F. App’x 719, 722 (2d Cir. 2009).
To evaluate a claimant’s disability, and to determine whether he qualifies for benefits, the
agency engages in the following five-step process:
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. Where the claimant is not, the Commissioner next considers
whether the claimant has a “severe impairment” that significantly limits her 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 that is listed [in the so-called “Listings”] in 20 C.F.R. pt. 404, subpt. P, app.
1. If the claimant has a listed impairment, the Commissioner will consider the claimant
disabled without considering vocational factors such as age, education, and work
experience; the Commissioner presumes that a claimant who is afflicted with a listed
impairment is unable to perform substantial gainful activity. Assuming the claimant does
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not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe
impairment, she has the residual functional capacity to perform her past work. Finally, if
the claimant is unable to perform her past work, the burden then shifts to the
Commissioner to determine whether there is other work which the claimant could
perform.
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122-23 (2d Cir. 2012) (alteration in original)
(citation omitted); see also 20 C.F.R. § 416.920(a)(4)(i)-(v). In applying this framework, an ALJ
may find a claimant to be disabled or not disabled at a particular step and may make a decision
without proceeding to the next step. See 20 C.F.R. § 416.920(a)(4). The claimant bears the
burden of proving the case at Steps One through Four; at Step Five, the burden shifts to the
Commissioner to demonstrate that there is other work that the claimant can perform. See
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
The ALJ concluded that Garzon was not disabled within the meaning of the Social
Security Act. At Step One, the ALJ concluded that Garzon met the insured status requirements of
the Social Security Act through December 31, 2021, and that she had engaged in substantial
gainful activity from January of 2016 to February 1, 2017—a time period that extended past the
date of her alleged onset of disability. Doc. #21-2 at 29. Because there was a time period after
February 1, 2017, when Garzon had not engaged in substantial gainful activity, the ALJ
continued his analysis as to that period. Ibid.
At Step Two, the ALJ found that Garzon experienced the following severe impairments:
“Status Post Bilateral Knee Arthroplasty; Fibromyalgia (FM); Obesity; and Depressive
Disorder.” Ibid. The ALJ did not take note of any non-severe impairments. Ibid.
At Step Three, the ALJ determined that Garzon did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Ibid.

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The ALJ then found that Garzon “had the residual functional capacity to perform light
work as defined in 20 CFR 416.967(b) except she is able to stand and/or walk up to four hours
and sit for six hours and she requires a sit/stand option defined as sitting for 30 minutes, alternate
to the standing position for five minutes and then resume sitting. She is unable to climb ladders,
ropes, or scaffolds but may occasionally climb stairs and ramps, balance, stoop, and crouch, but
never kneel or crawl. She is able to frequently handle and finger. There should be no work with
exposure to temperature extremes. The claimant is able to perform simple and detailed, but not
complex tasks and she is able to sustain concentration, persistence, or pace for three to four hour
segments with frequent interaction with coworkers and the public.” Id. at 31-32. At Step Four,
the ALJ concluded that Garzon could perform her past relevant work as an administrative clerk.
Id. at 35. The ALJ then held that Garzon was not disabled within the meaning of the Social
Security Act, and did not go on to make a Step Five finding. Id. at 36.
DISCUSSION
Garzon claims that the ALJ did not fulfill his affirmative duty to develop the
administrative record. Doc. #22-1 at 21-31. Garzon points out that following the hearing, the
ALJ did not obtain certain medical records from her physician and social worker at the Shoreline
Wellness clinic, largely did not obtain records from Yale-New Haven Health from after October
2016, and did not obtain records from Dr. Carlson, Garzon’s treating rheumatologist, from after
December 2015. Id. at 22.
It is well established that “[t]he ALJ, unlike a judge in a trial, must herself affirmatively
develop the record” in light of “the essentially non-adversarial nature of a benefits proceeding.”
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). The ALJ, in other words, has a duty “to
investigate and develop the facts and develop the arguments both for and against the granting of

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benefits.” Vincent v. Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011). This duty arises
from the Commissioner’s regulatory duty to develop a complete medical record before making a
disability determination, 20 C.F.R. § 404.1512(d)-(f). “This duty is heightened for a pro se
claimant.” Morris v. Berryhill, 721 F. App’x 25, 27 (2d Cir. 2018). Of course, the duty to
develop the record is not limitless. “[W]here 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 . . . .” Rosa, 168 F.3d at 79 n.5.
Garzon argues that the ALJ determined her residual functional capacity without
considering the opinions of Drs. Carlson, Puglisi, and Novella at Yale-New Haven Hospital. See
Doc. #22-1 at 30. Garzon also argues that while the ALJ considered a “medical statement” from
Kenneth Rando at Shoreline Wellness, see Doc. #21-2 at 34, the statement the ALJ considered
was actually a short undated letter that contained no functional evaluation. Doc. #22-1 at 24. The
Commissioner contends, however, that the ALJ made “every reasonable effort” to fill gaps in the
administrative record, by virtue of having made both “an initial request and one follow up
request” to Shoreline Wellness. Doc. #24-1 at 17. Moreover, the Commissioner argues, Garzon
indicated to the ALJ that she had brought additional records from Yale-New Haven to the
hearing, and the ALJ took every reasonable effort to help Garzon obtain the records she would
later submit to the Appeals Council. See ibid. (citing Doc. #21-6 at 74).
The Commissioner’s arguments are unpersuasive. To begin with, Shoreline Wellness’s
records indicate that while the Social Security Administration made an initial post-hearing
request for records, see Doc. #21-2 at 59, and that Rando spoke with Garzon after the Social
Security Administration “reported not receiving” Shoreline’s records, id. at 62, the record does

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not indicate whether the Social Security Administration had made that report to Shoreline
Wellness, Garzon, or some third party.
The Commissioner also did not develop the record as to medical reports from Yale-New
Haven. At the hearing, the ALJ stated that he was interested in Yale-New Haven records from
October 2016 onward into 2017. See Doc. #21-6 at 71, 73. But the ALJ’s decision did not
reference any Yale-New Haven records from that time, instead relying on the records Garzon
provided at the hearing that dated from 2013 to 2015. See Doc. #21-2 at 40-42; Doc. #21-6 at 71.
The Commissioner does not point to any evidence in the record that the ALJ took any steps after
the hearing to obtain Yale-New Haven records. At best, the hearing transcript does indicate that
there may have been significant confusion at the hearing between Garzon and the ALJ as to
whether Garzon had provided further records from Yale-New Haven. See Doc. #21-6 at 71-78.
But when faced with inconsistent and ambiguous records, the burden is on the ALJ to request
information for purposes of clarification. See Prince v. Berryhill, 304 F. Supp. 3d 281, 288 (D.
Conn. 2018). Faced with ambiguous statements from an uncounseled claimant about whether any
further records from Yale-New Haven existed, the ALJ here should have contacted Yale-New
Haven to clarify and resolve the issue.
These failures to request medical information led to obvious gaps in the record. The ALJ
had Yale-New Haven medical records at hand that dated through 2015, but focused his analysis
on the time period starting in February 2017. See Doc. #21-2 at 29, 33. Indeed, the ALJ explicitly
pointed to what he found to be deficiencies in the post-February 2017 medical records to
conclude that “there is no evidence in the record that takes the claimant out of the scope of the
physical portion of the residual functional capacity.” See id. at 33. And the record shows that a

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substantial number of medical records from Yale-New Haven existed for the post-February 2017
time period that the ALJ never considered. See Doc. #21-3; Doc. #21-4 at 1-56, 72-76.
It is of course true that the failure to consider a medical source statement does not require
a remand when the record is otherwise complete, see Tankisi v. Comm’r of Soc. Sec., 521 F.
App’x 29, 33–34 (2d Cir. 2013), but, as happened here, an ALJ may not rely on the absence of a
medical opinion to determine a claimant is not disabled when the ALJ could have requested
relevant medical records and did not, see Guillen v. Berryhill, 697 F. App’x 107, 108-09 (2d Cir.
2017). Accordingly, I conclude here that by failing to develop the record further, especially in
light of Garzon’s status as a pro se claimant, the ALJ left the record with obvious gaps. Because
the ALJ relied on those gaps to determine Garzon was not disabled, I will remand the decision of
the Commissioner. I therefore do not address Garzon’s other claims of error, but note that on
remand, the ALJ should be sure to consider any new information’s impact on the combined
effect of all the impairments Garzon experiences.
CONCLUSION
For the reasons set forth above, Garzon’s motion to reverse the decision of the
Commissioner (Doc. #22) is GRANTED IN PART insofar as the Commissioner’s decision is
remanded, and the Commissioner’s motion to affirm the decision of the Commissioner (Doc.
#24) is DENIED. The Clerk of Court shall close this case.
It is so ordered.
Dated at New Haven this 20th day of May 2019.
/s/Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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