Hernandez v. Commissioner of Social Security

Filing 17

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines October 14, 2014 14 Report and Recommendation is ADOPTED in its entirety. That the decision of the Commissioner is REVERSED and REMANDED to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g). Signed by Chief Judge Gary L. Sharpe on 1/22/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
SIGFRIDO HERNANDEZ,
Plaintiff,

1:13-cv-959
(GLS/ESH)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter M. Margolius
7 Howard Street
Catskill, NY 12414
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261

PETER M. MARGOLIUS, ESQ.

DAVID B. MYERS
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Sigfrido Hernandez challenges defendant Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI), seeking review under 42 U.S.C.
§ 405(g).1 (Compl., Dkt. No. 1.) In a Report and Recommendation (R&R)
filed October 14, 2014, Magistrate Judge Earl S. Hines recommended that
the Commissioner’s decision be reversed and remanded. (Dkt. No. 14.)
Pending are the Commissioner’s objections to the R&R. (Dkt. No. 16.) For
the reasons that follow, the court adopts the R&R in its entirety.
II. Background2
On July 30, 2010, Hernandez filed applications for DIB and SSI under
the Social Security Act. (Tr. 3 at 50-51, 100-10.) After his applications were
denied, Hernandez requested a hearing before an Administrative Law
Judge (ALJ), which was held on November 1, 2011 (Id. at 32-49, 54-66.)
On November 23, 2011, the ALJ issued a decision denying the requested

1

42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI

claims.
2

The court incorporates the factual recitations of the parties and Judge Hines. ( See
generally Dkt. Nos. 11, 12, 14.)
3

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

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benefits, which became the Commissioner’s final determination upon the
Social Security Administration Appeals Council’s denial of review. (Id. at 16, 18-31.)
Hernandez commenced the present action by filing a complaint on
August 12, 2013, seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Hines
issued an R&R recommending that the Commissioner’s decision be
reversed and remanded. (See generally Dkt. No. 14.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
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objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
The Commissioner raises one specific objection to the R&R, which
the court will review de novo. The remainder of the R&R will be reviewed
for clear error.
A.

Medical Source Statement
The Commissioner objects to Judge Hines’ conclusion that the ALJ’s

residual functional capacity (RFC) 4 determination was not supported by
substantial evidence because the ALJ made such determination in the
absence of any acceptable medical source opinion concerning
Hernandez’s functional limitations. (Dkt. No. 16 at 1-6.) In Judge Hines’
view, the ALJ required the assessment of a treating or consulting physician
to interpret the raw medical data before him. (Dkt. No. 14 at 13-15.)
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A claimant’s RFC “is the most [he] can still do despite [his] limitations.” 20 C.F.R.
§ 404.1545(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 404.1545(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in
he record. See 42 U.S.C. § 405(g). If it is, that determination is conclusive and must be
affirmed upon judicial review. See id.; Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).

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According to the Commissioner, however, the lack of a medical source
statement does not make the administrative record incomplete, and,
further, the ALJ’s findings must be affirmed unless a reasonable fact-finder
would have to conclude otherwise. (Dkt. No. 16 at 1-6.)
“‘It is a well-settled rule in the Second Circuit that the Commissioner
must affirmatively develop the administrative record due to the essentially
non-adversarial nature of a benefits proceeding.’” Felder v. Astrue, No. 10CV-5747, 2012 WL 3993594, at *11 (E.D.N.Y. Sept. 11, 2012) (quoting
Garcia v. Apfel, No. 98 CIV. 1370, 1999 WL 1059968, at *5 (S.D.N.Y. Nov.
19, 1999)); see Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
However, the ALJ’s duty to develop the record is not without limit. See
Guile v. Barnhart, No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y.
June 14, 2010). Indeed, if all of the evidence received is consistent and
sufficient to determine whether a claimant is disabled, further development
of the record is unnecessary, and the ALJ may make his determination
based upon that evidence. See 20 C.F.R. § 404.1520b(a). Consistent with
that notion, where there are no “obvious gaps” in the record, the ALJ is not
required to seek additional information. Rosa v. Callahan, 168 F.3d 72, 79
n.5 (2d Cir. 1999).
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The Commissioner argues that the lack of a medical source
statement does not constitute a gap in the administrative record triggering
her duty to develop the record. (Dkt. No. 16 at 3-4.) However, in all of the
cases upon which she relies, where the Second Circuit held that the
administrative record was sufficiently developed, the administrative records
contained an assessment of the claimant’s limitations by either a treating or
consulting medical source. See generally Tankisi v. Comm’r of Soc. Sec.,
521 F. App’x 29, 34 (2d Cir. 2013); Pellam v. Astrue, 508 F. App’x 87, 90
n.2 (2d Cir. 2013); Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013);
Petrie v. Astrue, 412 F. App’x 401, 406 (2d Cir. 2011). In Tankisi, although
the administrative record did not contain “formal opinions” from treating
physicians, a treating source had otherwise assessed Tankisi’s limitations,
and the ALJ had before him the functional assessments of multiple
consultative examiners. 521 F. App’x at 34. In Pellam, the Second Circuit
explicitly left open the question of “whether a record would be rendered
incomplete by the failure to request a medical source opinion from a
treating physician if the ALJ made his [RFC] determination without the
support of any expert medical source opinion concerning the claimant’s
limitations.” 508 F. App’x at 90 n.2. Thus, these cases are inapplicable
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here, where the record lacks any medical source opinion regarding
Hernandez’s functional limitations.
The Commissioner also points to the Second Circuit’s decision in
Yancey, which held that an ALJ did not neglect his duty to fully develop the
administrative record by failing to order a consultative psychiatric
examination. 145 F.3d 106, 114 (2d Cir. 1998). However, in that case, the
claimant “provided no evidence of a psychiatric or psychological
impairment” and “the physicians of record neither suggested the existence
of a mental impairment nor recommended that the claimant undergo a
psychological or psychiatric evaluation.” Id. Here, on the other hand,
Hernandez’s treatment records evinced cardiovascular, lumbar, and
obesity impairments. (Tr. at 23.) As noted by Judge Hines, Hernandez’s
lumbar spine impairment is confirmed by MRI results as well as clinical
signs. (Dkt. No. 14 at 14.) Keeping in mind that “‘an [ALJ] is free to
resolve issues of credibility as to lay testimony or to choose between
properly submitted medical opinions,’” but “‘cannot arbitrarily substitute his
own judgment for competent medical opinion,’” Balsamo v. Chater, 142
F.3d 75, 81 (2d Cir. 1998) (quoting McBrayer v. Sec’y of Health and
Human Servs., 712 F.2d 795, 799 (2d Cir.1983)), remand is required here
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so that the ALJ can obtain the opinion of any treating physician or other
medical source. See, e.g., Gross v. Astrue, No. 12-CV-6207P, 2014 WL
1806779, at *18 (W.D.N.Y. May 7, 2014) (holding that remand was
appropriate where the ALJ determined a claimant’s RFC “primarily . . .
through her own interpretation of various MRIs and x-ray reports contained
in the treatment records”); cf. Lewis v. Colvin, No. 13-CV-1072S, 2014 WL
6609637, at *6 (W.D.N.Y. Nov. 20, 2014) (holding that remand was not
required due to the absence of a medical source opinion where the ALJ’s
RFC determination accounted for the limitations alleged by the claimant
and the claimant suffered relatively minor physical impairments). Without
the advice of such a medical source, the ALJ, as a layperson, cannot
bridge the gap between Hernandez’s impairments and the functional
limitations that flow from those impairments. See Dailey v. Astrue, No.
09-CV-0099, 2010 WL 4703599, at *11 (W.D.N.Y. Oct. 26, 2010).
B.

Remaining Findings and Conclusions
Having addressed the Commissioner’s specific objections de novo,

and otherwise finding no clear error in the R&R, the court accepts and
adopts Judge Hines’ R&R in its entirety.
V. Conclusion
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WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ October 14, 2014
Report and Recommendation (Dkt. No. 14) is ADOPTED in its entirety; and
it is further
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED to the Commissioner for further consideration pursuant to
sentence four of 42 U.S.C. § 405(g); and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
January 22, 2015
Albany, New York

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