GALLUZZO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 9/5/17. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 16—1446 (NM)
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
Antonette Galluzzo brings this action pursuant to 42 U.S.C.
§ 405(g) to
review a final decision of the commissioner of Social Security denying her
claim for Disability Insurance Benefits (“DIB”) and supplemental security
income (“551”) under Title II and Title XVI of the Social Security Act, 42 U.S.C.
§ 40 1—434. Galluzzo suffers from panic attacks and manic depression. On
June 27, 2014, Administrative Law Judge (“AL]”) Joel Friedman concluded
that her impairments were real, but not disabling.
I find no fault with the AI3’s thorough and conscientious analysis. At the
time he heard the case, however, the record lacked certain key treatment notes.
From July 20, 2009 to October 11, 2011 Cindy Gelber, a licensed clinical social
worker, treated Galluzzo at the Center for Revitalizing Psychiatry (“CRP’).
About eight months of those records overlap with the alleged onset date,
February 10, 2011. Because these are primary treatment records, they would
have been especially relevant to the issues before the ALT (R. 5 16-575)
The AW’s failure to obtain the Galluzzo’s CRP records is understandable.
At the time of the hearing, Galluzzo was proceeding pro se, and several key
pieces of evidence, including a consultative examination, were missing from the
record. The AL) conscientiously left the record open, ordered the production of
several absent treatment records, and requested a consultative examination.
The AL) did not, however, specifically note the absence of the CRP records or
order their production.
While ALJs are not required to “search out all relevant evidence which
might be available”, they do owe pro se claimants a special obligation to
“scrupulously and conscientiously probe into, inquire of, and explore for all
relevant facts.” Reefer v. Bamart, 326 F.3d 376, 381 (3d Cir. 2003). The CRP
records are undeniably relevant. The doctor who completed a treating source
assessment identified herself as a CRP employee. She noted in her report that
Galluzzo’s first “visit” to CRP was “7/10/09,” and that she had “weekly” visits.
(N. 359-64) Elsewhere in his decision, the AL) noted that Galluzzo “was
previously treated by a private psychiatrist.” (N. 34) These were fertile grounds
for further factual development, especially for a claimant alleging that her
mental illness was disabling. The AL) should have inquired, explored, and
obtained Galluzzo’s CRP records.
Based on the record before the AL), his denial of benefits appears to be
amply justified. It is not for me, however, to consider the CRP records and
decide whether they should change the agency’s decision. Whether the CRP
records change his mind is an issue for the AL) to decide in the first instance.
For now, however, it is sufficient to find that the AL) had an obligation to
develop fully and fairly the record for Galluzzo, who was then proceeding pro
se. See Dobrowoisky v. Califano, 60 F.2d 403, 408-409 (3d Cir. 1979)
(remanding case to AL) where “important aspects of [claimant’s] claim were not
adequately considered at the hearing” and specifically noting the claimant’s
“lack of legal counsel at the hearing.”) I will remand for that purpose.
For these reasons, the matter will be REMANDED to the AW for further
proceedings. The AW shall consider the relevant CRP records, and may develop
the record further, if appropriate. I do not suggest that the AW could not reach
the same result on remand. If these additional records demonstrate disabling
functional restrictions, the AW may so find. If, on the other hand, substantial
evidence indicates that Galluzzo’s panic attacks and manic depression do not
rise to the level of a disabling condition, the AW may so find.
Dated: September 5, 2017
United States District Judg
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