Carr v. Commissioner of Social Security

Filing 22

OPINION AND ORDER re: 16 MOTION for Judgment on the Pleadings . filed by Commissioner of Social Security, 11 MOTION for Judgment on the Pleadings . filed by Kevin Carr. I have reviewed the remainder of Magistrate Ju dge Francis's thorough Report and Recommendation for clear error and find none. Therefore, I adopt the Report in its entirety. Plaintiff's motion for judgment on the pleadings, (Doc. 11), is GRANTED, and the Commissioner's cross-moti on for judgment on the pleadings, (Doc. 16), is DENIED and this case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with the Report and Recommendation. The Clerk of Court is respectfully directed to terminate the open motions and close the case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 7/12/2018) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KEVIN CARR,
:
:
Plaintiff,
:
:
-v:
:
COMMISSIONER OF SOCIAL SECURITY, :
:
Defendant. :
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7/12/2018

16-CV-5877 (VSB) (JCF)
OPINION AND ORDER

Appearances:
Daniel Berger
NY Disability LLC
Bronx, New York
Counsel for Plaintiff
Leslie A. Ramirez-Fisher
United States Attorney’s Office
New York, New York
Counsel for Defendant
VERNON S. BRODERICK, United States District Judge:
Plaintiff Kevin Carr brings this action pursuant to §§ 205(g) and 1631(c)(3) of the Social
Security Act (the “SSA”), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a
determination by the Commissioner of Social Security (the “Commissioner”) that he is not
entitled to Supplemental Security Income (“SSI”) or disability insurance benefits (“DIB”).
Plaintiff and Defendant cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. On May 11, 2017, Magistrate Judge James C. Francis IV
issued a detailed and thorough Report and Recommendation (“Report” or “R&R”)
recommending that Plaintiff’s motion for judgment on the pleadings be granted and the
Commissioner’s cross-motion for judgment on the pleadings be denied. (Doc. 18.) Before me is

Defendant’s objection to the R&R. For the reasons discussed below, I adopt the R&R in full.
Factual Background and Procedural History
I assume the parties’ familiarity with the facts and record of prior proceedings, and
restate briefly only the information necessary to explain my decision.1
Plaintiff was born on September 13, 1958. (R&R 1.)2 Plaintiff worked as a meat packer
from April 2004 until June 2011, and worked as a construction worker for a few months at the
end of 2012. (R&R 2.) Plaintiff was fifty-four years old when he filed an application for DIB on
April 8, 2013 and an application for SSI on May 2, 2013. (R&R 2.) In his DIB application,
Plaintiff claimed that he became unable to work on June 1, 2011, and in his SSI application he
claimed a disability onset date of January 1, 2013. (R&R 2.) Plaintiff asserted that the following
conditions limited his ability to work: bipolar disorder, anxiety, depression, asthma, high blood
pressure, back pain, gastroesophageal reflux disease (“GERD”), and marcoglobulinemia3.
(R&R 2.) Plaintiff began seeking monthly treatment for lower back pain at La Casa de Salud in
June 2012, and continued treatments until at least October 2014. (R&R 3–7.) Plaintiff also
received psychiatric treatment from Dr. Carl St.-Preux, among others, at La Casa de Salud,
beginning in at least early 2013. (R&R 7–15.)
Plaintiff’s applications were denied on September 5, 2013. (R&R 16.) Plaintiff
requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held on
October 22, 2014, before ALJ Elias Feuer. (R&R 16.) The ALJ issued a decision on April 3,

1

A more detailed description of the underlying facts and procedural history is contained in Magistrate Judge
Francis’s Report and Recommendation, dated May 11, 2017. (Doc. 18.)
2

“R&R” refers to Magistrate Judge Francis’s Report and Recommendation, dated May 11, 2017. (Doc. 18.)

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Macroglobulinemia is a kind of non-Hodgkin lymphoma. “The cancer cells make large amounts of an abnormal
protein (called a macroglobulin). . . . This condition used to be called Waldenstrom’s macroglobulinemia, so some
people refer to it as Waldenstrom’s.” See https://www.cancer.org/cancer/waldenstrom-macroglobulinemia/about/
what-is-wm.html (last visited June 13, 2018).

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2015, finding that Plaintiff was not disabled under the SSA. (R&R 16.) The Appeals Council
denied review on June 23, 2016, making the ALJ’s determination the final decision of the
Commissioner in this case. (R&R 17.)
Plaintiff filed this action on July 22, 2016. (Doc. 1.) I referred the case to Magistrate
Judge Francis on January 4, 2017. (Doc. 13.) Magistrate Judge Francis issued his Report and
Recommendation on May 11, 2017. (Doc. 18.) On May 23, 2017, Defendant requested a thirtyday extension of time to file an objection to the Report and Recommendation, (Doc. 19), which I
granted, (Doc. 20). On June 23, 2017, Defendant timely filed its objection to the Report and
Recommendation. (Doc. 21.)
Legal Standards
A.

Review of the Magistrate Judge’s Report

A district court reviewing a magistrate judge’s report and recommendation “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). A party may make objections to a report and recommendation
“[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ.
P. 72(b)(2); 28 U.S.C. § 636(b)(1). The district court “may adopt those portions of the report to
which no ‘specific, written objection’ is made, as long as the factual and legal bases supporting
the findings and conclusions set forth in those sections are not clearly erroneous or contrary to
law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012) (quoting
Fed. R. Civ. P. 72(b)). “If a party timely objects to any portion of a magistrate judge’s report and
recommendation, the district court must ‘make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.’” Bush v.
Colvin, No. 15 Civ. 2062 (LGS) (DF), 2017 WL 1493689, at *4 (S.D.N.Y. Apr. 26, 2017)

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(quoting United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015)).
A party’s objection “must be specific and clearly aimed at particular findings in the
R&R.” Bussey v. Rock, No. 12-CV-8267 (NSR) (JCM), 2016 WL 7189847, at *2 (S.D.N.Y.
Dec. 8, 2016) (internal quotation marks omitted). “[T]he court will review the R&R strictly for
clear error when a party makes only conclusory or general objections, or simply reiterates the
original arguments.” Id. (internal quotation marks omitted); see also Ortiz v. Barkley, 558 F.
Supp. 2d 444, 451 (S.D.N.Y. 2008) (noting that reviewing court “is only obliged to review the
Report for clear error” where “objections largely reiterate the arguments made to, and rejected
by” the magistrate judge); Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y.
Sept. 30, 2002) (“[O]bjections that are merely perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same arguments set forth in the original petition
will not suffice to invoke de novo review of the magistrate’s recommendations.”).
B.

Review of the Commissioner’s Decision

In reviewing a social security claim, “it is not [the court’s] function to determine de novo
whether plaintiff is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Pratts
v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); see also Riordan v. Barnhart, No. 06 CIV 4773 AKH,
2007 WL 1406649, at *4 (S.D.N.Y. May 8, 2007). Instead, a reviewing court considers merely
whether the correct legal standards were applied and whether substantial evidence supports the
decision. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008); see also 42 U.S.C. § 405(a) (on
judicial review, “[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive”). “Substantial evidence means more than
a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Burgess, 537 F.3d at 127 (quoting Halloran v. Barnhart, 362

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F.3d 28, 31 (2d Cir. 2004)). It is “a very deferential standard of review—even more so than the
‘clearly erroneous’ standard.” Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448 (2d Cir. 2012)
(citing Dickinson v. Zurko, 527 U.S. 150, 153 (1999)). “The substantial evidence standard
means once an ALJ finds facts, [a reviewing court] can reject those facts only if a reasonable
factfinder would have to conclude otherwise.” Id. (internal quotation marks omitted).
Discussion
Defendant objects to Magistrate Judge Francis’s finding that the ALJ failed to adequately
develop the record with regard to Plaintiff’s medical records. (Def.’s Obj. 1.)4 Defendant asserts
that the ALJ acted reasonably in seeking the assistance of Plaintiff’s counsel in an effort to
obtain Plaintiff’s missing medical and psychological records at issue and, when counsel failed to
obtain or provide the records, reasonably decided the case on the records that could be obtained.
(See generally Def.’s Obj.) I disagree, and adopt the Report and Recommendation.
A.

Applicable Law

As a general rule, an ALJ has an affirmative duty to develop the factual record. Rosa v.
Callahan, 168 F.3d 72, 79–80 (2d Cir. 1999). Due to the non-adversarial nature of a Social
Security hearing, “[t]he duty of the ALJ, unlike that of a judge at trial, is to ‘investigate and
develop the facts and develop the arguments both for and against the granting of benefits.’”
Vincent v. Comm’r of Soc. Sec., 651 F.3d 299, 305 (2d Cir. 2011) (quoting Butts v. Barnhart, 388
F.3d 377, 386 (2d Cir. 2004)). Moreover, “it is the well-established rule in our circuit” that such
a duty exists “[e]ven when a claimant is represented by counsel.” Moran v. Astrue, 569 F.3d
108, 112 (2d Cir. 2009). While one tool in an ALJ’s toolbox might be to seek the assistance of

4

“Def.’s Obj.” refers to Defendant’s Objections to the Magistrate Judge’s Report and Recommendation for Remand,
filed on June 23, 2017. (Doc. 21.)

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Plaintiff’s counsel, an ALJ cannot merely rely on requests of counsel to obtain records to fulfill
the duty to investigate and develop the record. See, e.g., Rosa, 168 F.3d at 79 (“[Wh]ere 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.’” (quoting Perez v. Chater,
77 F.3d 41, 47 (2d Cir. 1996))); see also Pratts, 94 F.3d at 37 (“It is the rule in our circuit that
the 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. This duty . . . exists even when . . .
the claimant is represented by counsel or by a paralegal.” (internal quotation marks omitted)).
Typically, “if a physician’s report is believed to be insufficiently explained, lacking in
support, or inconsistent with the physician’s other reports, the ALJ must seek clarification and
additional information . . . to fill any clear gaps before rejecting the doctor’s opinion.” UreñaPerez v. Astrue, No. 06 Civ. 2589(JGK)(MHD), 2009 WL 1726217, at *29 (S.D.N.Y. Jan. 6,
2009), report and recommendation adopted as modified, 2009 WL 1726212 (S.D.N.Y. June 18,
2009). Where the gaps or inconsistencies concern a treating physician’s opinions, and in
particular those of a treating psychiatrist, this duty is especially crucial. See, e.g., Craig v.
Comm’r of Soc. Sec., No. 15-CV-4057 (JLC), 2016 WL 6885216, at *13 (S.D.N.Y. Nov. 22,
2016) (“The duty to develop the record is particularly important where an applicant alleges he is
suffering from a mental illness, due to the difficulty in determining whether these individuals
will be able to adapt to the demands or ‘stress’ of the workplace.”) (quoting Merriman v.
Comm’r of Soc. Sec., No. 14 Civ. 3510(PGG)(HBP), 2015 WL 5472934, at *19 (S.D.N.Y. Sept.
16, 2015)).
Failure to adequately develop the record is an independent ground for vacating the ALJ’s
decision and remanding for further findings. See Rosa, 168 F.3d at 83. However, even where an

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ALJ fails to develop the opinions of a treating physician, remand may not be required “where . . .
the record contains sufficient evidence from which an ALJ can assess the petitioner’s
[disability].” Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d Cir. 2013) (summary
order).
B.

Application

At the hearing and in his decision, ALJ Feuer commented on the dearth of treatment
notes in the record from Dr. St.-Preux, Plaintiff’s psychiatrist, and, generally, the “very limited”
medical record. (See R. 22–25, 38.)5 Indeed, the ALJ noted that he “neede[ed] [Dr. St.-Preux’s]
treatment notes so that [he could] weigh whether there’s a foundation for [Dr. St.-Preux’s]
opinions,” including “the [September 2014] medical source statement that was submitted from
[Dr. St.-Preux].” (R. 38.) The ALJ was similarly aware of the absence of treatment notes from
Nurse Practitioner Ocean, and her supervising physician, as well as records of Plaintiff’s
physical therapy. (See R. 37, 87–88, 93–94.) Despite stating that he “neede[ed] [Dr. St.Preux’s] treatment notes so that [he could] weigh whether there’s a foundation for [Dr. St.Preux’s] opinions,” and without independently making an effort to obtain those notes, ALJ Feuer
ultimately gave little weight to Dr. St.-Preux’s opinions from February 2013, April 2013, and
September 2014 because they were inconsistent with his April and August 2013 findings.
(R. 24.) That is, the ALJ noted internal inconsistencies in the April 2013 record, as well as
inconsistencies between the August 2013 record and the opinions of February 2013, April 2013,
and September 2014. The ALJ also discounted Nurse Practitioner Ocean’s September 2014
opinion “because it is unsupported by treatment notes and broadly inconsistent with the overall

5

“R.” refers to the Certified Administrative Record of proceedings relating to this case, submitted by the Acting
Commissioner on August 31, 2016. (Doc. 10.)

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medical evidence of record.” (R. 25.)
As a result of the gap in record evidence, the ALJ asked Plaintiff’s counsel at the hearing
to obtain certain missing medical records and treatment notes. (R&R 17; Def.’s Obj. 4.) In
January 2015, approximately two and a half months after the hearing, the ALJ wrote to
Plaintiff’s counsel noting that counsel had not provided any additional records and granting
counsel an additional ten days to submit the evidence or request an extension of time to do so.
(R&R 17; R. 312.) Plaintiff’s counsel never responded and no additional records were received
or considered. (See R&R 17.) The record does not indicate that the ALJ made any attempts on
his own to obtain these records or to otherwise develop the record by some other means,
including using his authority to issue subpoenas for the production of medical records or witness
testimony, cf. Devora v. Barnhart, 205 F. Supp. 2d 164, 172 (S.D.N.Y. 2002) (stating that an
ALJ has a “duty to develop the administrative record,” and that she is authorized to issue
subpoenas to ensure production of medical records and to obtain testimony).
Defendant contends that the ALJ’s effort to retrieve the missing medical information
through Plaintiff’s counsel was a sufficient attempt to fill the gap in the record, particularly in
light of the fact that the Commissioner had previously requested, on three separate occasions,
medical records from La Casa de Salud, and Plaintiff’s counsel had twice reached out to Dr. St.Preux for the same. (Def.’s Obj. 4.) However, as Magistrate Judge Francis found, courts in this
Circuit have held that an ALJ’s mere request to plaintiff or his counsel to provide additional
medical records does not sufficiently satisfy the ALJ’s duty to develop the record when the
records are never provided, see, e.g., Corona v. Berryhill, No. 15-CV-7117 (MKB), 2017 WL
1133341, at *16 (E.D.N.Y. Mar. 24, 2017) (finding that, where ALJ acknowledged gap in the
record, “[t]he ALJ’s discussion on the record with Plaintiff’s counsel regarding Dr. Chaudhry’s

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treatment notes and her decision to leave the record open for thirty days for the submission of his
records were not sufficient to satisfy her duty because the ALJ took no further action to ensure
that the record was complete”); Glast v. Astrue, No. 11-CV-5814 (SLT), 2013 WL 5532696, at
*10 (E.D.N.Y. Sept. 30, 2013) (“That the ALJ requested information from Plaintiff’s attorney
regarding two treating physicians and received nothing does not relieve the ALJ of his duty to
fully develop the record.” (internal quotation marks omitted)); Outley v. Astrue, No. 5:09-CV0141(FJS/VEB), 2010 WL 3703065, at *4 (N.D.N.Y. Aug. 26, 2010) (concluding that where
counsel did not provide records as requested, ALJ had duty to “obtain the necessary information
himself” and failure to do so “necessitates remand”).
The cases Defendant relies on in support of its position are unpersuasive because they
either involved situations where there was no indication that the ALJ believed the record was
incomplete or the ALJ took other steps besides reliance on plaintiff’s counsel. In Desane v.
Colvin, No. 3:15-CV-50 (GTS), 2015 WL 7748877 (N.D.N.Y. Nov. 30, 2015), counsel for
Plaintiff (rather than the ALJ) expressed his view at the conclusion of the hearing before the ALJ
that the record was incomplete. Id. at *5. In order to accommodate counsel, the ALJ agreed to
hold the record open in order to allow counsel the opportunity to obtain additional medical
records. Id. When counsel failed to submit any additional materials, the ALJ warned counsel
that if no additional materials were submitted the ALJ would decide the case on the evidence
before her. Id. Thus, unlike here, the ALJ never expressed her belief that the record was
incomplete, but merely acquiesced to counsel’s request for additional time to develop the record.
In Martinez-Paulino v. Astrue, No. 11 Civ. 5485(RPP), 2012 WL 3564140 (S.D.N.Y. Aug. 20,
2012), the ALJ kept the record open for an additional five weeks following the hearing for
further development of the record and, unlike here, the ALJ took the affirmative step of ordering

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a psychiatric consultative examination of the plaintiff since certain treatment records were not
accessible. Id. at *4. Defendant fails to cite any cases in support of its position with a scenario
that is factually aligned with the facts of this case.
Furthermore, as Magistrate Judge Francis noted, the Second Circuit, in two unpublished
opinions, indicated under what circumstances it would not be necessary for an ALJ to pursue
missing records on his or her own and those circumstances are not present here. See Frye ex rel.
A.O. v. Astrue, 485 F. App’x 484, 488 n.2 (2d Cir. 2012) (summary order) (holding that the
ALJ’s decision was based on a fully developed record because the ALJ requested submission of
additional relevant evidence, held the record open subsequent to the administrative hearing,
contacted counsel when no further evidence was received, granted counsel’s request for an
extension of time to obtain the evidence, and eventually considered additional evidence
submitted by counsel); Jordan v. Comm’r of Soc. Sec., 142 F. App’x 542, 543 (2d Cir. 2005)
(summary order) (affirming district court’s finding that ALJ fulfilled his duty to develop the
record where plaintiff’s counsel volunteered to secure the records, the record was left open, the
ALJ reminded plaintiff’s counsel to submit the records, and plaintiff’s counsel indicated that
there were no further records to add). In those cases, unlike here, either additional records were
actually submitted and considered by the ALJ, or the ALJ was assured that no additional records
were forthcoming.
In light of the investigative nature of an ALJ’s duty to develop the record, I agree with
Magistrate Judge Francis that ALJ Feuer did not satisfy his duty here. The ALJ was aware and
commented on the gaps in Plaintiff’s medical record and failed to take adequate action to ensure
that the record was complete. See Newsome v. Astrue, 817 F. Supp. 2d 111, 137–38 (E.D.N.Y.
2011) (finding that request for certain records from the plaintiff’s attorney that were never

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received did not satisfy ALJ’s duty to develop the record); Curtis v. Astrue, No. 11-CV-786
(GTS/VEB), 2012 WL 6098258, at *4–5 (N.D.N.Y. Oct. 30, 2012) (finding that ALJ did not
satisfy his duty to develop the record by requesting that plaintiff’s counsel supplement the record
with treatment notes, even where counsel promised at the hearing to obtain the records, because
no records were ever submitted).
Accordingly, I find that remand of this case is necessary to assure the proper disposition
of Plaintiff’s claim.
Conclusion
I have reviewed the remainder of Magistrate Judge Francis’s thorough Report and
Recommendation for clear error and find none. Therefore, I adopt the Report in its entirety.
Plaintiff’s motion for judgment on the pleadings, (Doc. 11), is GRANTED, and the
Commissioner’s cross-motion for judgment on the pleadings, (Doc. 16), is DENIED and this
case is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings
consistent with the Report and Recommendation.
The Clerk of Court is respectfully directed to terminate the open motions and close the
case.
SO ORDERED.
Dated: July 12, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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