Gabrielsen v. Commissioner of Social Security

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION for 26 Report and Recommendation. For the foregoing reasons, the Court adopts Judge Davison' Report and Recommendation in part, finding that while the ALJ adequately considered the record, he failed to sufficiently develop it. The case is therefore remanded for further administrative proceedings consistent with this opinion pursuant to 42 U.S.C. § 405(g). (Signed by Judge Kenneth M. Karas on 7/30/2015) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOMINIK J. GABRIELSE1'<,
Plaintiff,

Case No. 12-CV-5694 (KMK)(PED)
ORDER ADOPTIN9 REPORT &
RECOMMENDATION IN PART

-v-

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

KENNETH M. KARAS, District Judge:
Pro se Plaintiff Dominik J. Gabrielsen ("Plaintiff') brings this action pursuant to 42
U.S.C. § 405(g) seekingjudicial review ofthe final decision ofthe Commissioner of Social
Security (the '"Commissioner"), who found that Plaintiff was not entitled to disability insurance
benefits under the Social Security Act ("SSA"). The Court referred the case to Magistrate Judge
Paul E. Davison (''Judge Davison"), pursuant to 28 U.S.C. § 636(b)(l)(A). (Dkt. No. 12.) The
Commissioner moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c). (Dkt. No. 18.) Judge Davison issued a Report and Recommendation ("'R&R")
recommending that the Court deny the Commissioner's Motion and remand the case for further
administrative proceedings. (Dkt. No. 26.) The Commissioner filed timely objections to the
R&R, which the Court considers here. (Dkt. No. 29.) For the reasons discussed below, the
Court adopts the Report and Recommendation in part and remands the case to the Commissioner
for further administrative proceedings consistent with this Opinion pursuant to 42 U.S.C.
§ 405(g).

I. Discussion
A. Standard of Review
A district court reviev.oing a report and recommendation addressing a dispositive motion
"'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 ); see also Bradley v. Comm 'r ofSoc. Sec .. No. 12-CV-

7300,2015 WL 1069307, at *1 (S.D.N.Y. Mar. 11, 2015) (same). Under 28 U.S.C. § 636(b)(l)
and Federal Rule of Civil Procedure 72(b )(2), parties may submit objections to the magistrate
judge's report and recommendation. The objections must be "'specific'' and ''written," and must
be made "'lwlithin 14 days after being served with a copy of the recommended disposition." Fed.
R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1).
When a party submits timely objections to a report and recommendation, the district court
reviews de novo the parts of the report and recommendation to which the party objected. See 28
U.S.C. § 636(b)(l): Fed. R. Civ. P. 72(b)(3); Bradley, 2015 WL 1069307, at *1. Further, the
district court ··may adopt those portions of the ... report land recommendation 1to 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.'' See

Eisenberg v. New Enf{land Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008)
(quoting Fed. R. Civ. P. 72(b)(2)); see alsoAlverio v. Colvin, No. 13-CV-4722, 2015 WL
1062411, at* 1 (S.D.N.Y. Mar. 9, 2015) ("When the parties make no objections to the frlreport
land recommendation!, the Iclourt may adopt fill if there is no clear error on the face of the
record.'' (internal quotation marks omitted)).
Regarding the merits of a Social Security claim, the reviewing court's function is not to
determine whether the plaintiff is disabled, and therefore entitled to Social Security benefits. See

2

Schaaf v. Apfel, 134 F.3d 496,501 (2d Cir. 1998) C'll]t is not our function to determine de novo
whether p1aintifT is disabled.") (alteration and internal quotation marks omitted); Riordan v.

Barnhart. No. 06-CV-4773, 2007 WL 1406649. at *4 (S.D.N.Y. May 8, 2007) ("'The court does
not engage in a de novo determination of whether or not the claimant is disabled .... "); Van

Dien v. Barnhart, No. 04-CV-7259, 2006 WL 785281, at *8 (S.D.N.Y. Mar. 24, 2006) ('"The
court is not permitted to determine whether the claimant is disabled de novo."). Instead. the
reviewing court determines only '"vihether the correct legal standards were applied and whether
substantial evidence supports the decision." Bulls v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004),

as amended on reh 'gin parr. 416 F.3d 101 (2d Cir. 2005); see also Rosa v. Callahan. 168 F.3d
72, 77 (2d. Cir. 1999) (noting that a court will only overturn the determination of an
Administrative Law Judge ("ALJ") if it is "based upon legal error" or '·not supported by
substantial evidence" (internal quotation marks omitted)); Morrel v. Ma.'isanari, No. 0 1-CV -186,
2001 WL 776950. at *5 (S.D.N.Y. July 1 L 2001) ('"A court's review of the Commissioner's
final decision is limited to determining whether there is 'substantial evidence' in the record to
support such determination.").
To determine whether a claimant is entitled to disability benefits. the AU must follow a
five-step sequential analysis. See 20 C.F.R.

~

404.1520(a)(l ); Williams\'. Aplef, 204 F.3d 48, 49

(2d Cir. 1999) (outlining the tive steps). First, the AU determines whether the claimant is
currently engaged in substantial gainful work. See 20 C.F.R.

~~

404.1520(a)(4)(i), 1520(b);

Mcintyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014); Rolon v. Comm 'r oj'Soc. Sec., 994 F.
Supp. 2d 496. 501 (S.D.N.Y. 2014). Second, ifthe claimant is not so engaged. the ALJ
considers whether the claimant has a severe impairment that limits his or her ability to participate
in work-related activities. See 20 C.F.R.

~§

404.1520(a)(4)(ii). 1520(c); Mcintyre. 758 F.3d at

3

150; Rolon, 994 F. Supp. 2d at 501. Third, if so, the ALJ determines whether the impairment is
listed, or equal to, those in 20 C.F.R. § 404.1520, Part 404. Subpart P. Appendix 1 ("Appendix
1");if it is, disability is presumed, and the claimant is considered unable to perform substantial
gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(iii). 1520(d); Mcintyre. 758 F.3d at 150;

Rolon, 994 F. Supp. 2d at 501. Fourth. ifthe impairment does not meet or equal the criteria of a
listed impairment, the ALJ assesses whether the claimant retains functional capacity to perform
his or her past work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (e)-(f); Mcintyre. 758 F.3d at 150;

Rolon. 994 F. Supp. 2d at 501. Fifth and finally, where a claimant is deemed unable to perform
his or her past work. the AU '"determine[ s] whether there is other work within the national
economy" that the claimant is qualified to perform. Mcintyre, 758 F.3d at 150; see also Peterson

\'.Barnhart, 219 F. Supp. 2d 491,493 (S.D.N.Y. 2002); 20 C.F.R. §§ 404.1520(a)(4)(v). 1520(g)
(noting that the J\LJ must show that there arc other jobs existing based on the claimant's
vocational factors. which include age, education, and work experience, as well as the claimant's
residual functional capacity). Ifthe AU concludes that there is work in the national economy
that the individual can perform, then the AU must determine that the individual is not disabled.

See Mcintyre, 758 F.3d at 150; 20 C.F.R. § 404.1520(a)(4)(v). 1

The Court adopts the extensive recitation of facts set forth by Judge Davison. (Report and
Recommendation ("R&IC) 2-24 (Dkt. No. 26)). and assumes the Parties' familiarity with it.

1

The claimant has the burden of proof for the first four steps, but the burden rests with
the Commissioner at the fifth step-the determination on alternative work-if the analysis
proceeds that far. See Mcintyre. 758 F.3d at 150; see also Bowen v. Yuckert, 482 U.S. 137. 146
n.5 (1987) (noting that the Commissioner has the burden of proof at step five ·'only if the
sequential evaluation process proceeds to the fifth step'').
4

The Court will repeat only those facts that are relevant to the consideration of Defendant's
objections.
The Commissioner objects to Judge Davison's recommendation that the Commissioner's
Motion be denied and that the case be remanded for further proceedings because the AIJ failed
to properly develop and consider the record. (See R&R 35.) First, the Commissioner argues that
the AU properly developed the record, and that Judge Davison erroneously ruled (a) that ··a
different standard for developing the record applies when a claimant asserts a disability based on
a mental impairment," and (b) that the AU was '"required to Ire-contact] a treating physician
where the physician's treatment notes conflict with his assessment of the claimant's residual
functional capacity." (Comm'r's Obj's to R&R ("Obj's'') 2-3 (Dkt. No. 29).) Second, the
Commissioner contends that the AU properly considered the evidence with respect to Dr. Rhea
Johnson ('"Dr. Johnson"), Plaintiffs psychiatrist and treating physician, and Joanne
Baechcr-DiSalvo (""Baecher-DiSalvo''), Plaintiff's social \Yorker. (See id at 8-9.) The Court
reviews the portions of the R&R relevant to the Commissioner's objections de novo.
1. Failure to DeveloQJ.h.e Record
a. Heightened Dt!!.Y__to Develop the Record
In his R&R, Judge Davison adopted two legal conclusions pertaining to how an
allegation of mental impairment impacts the process by which a claimant's eligibility for Social
Security benefits is assessed. First, Judge Davison explained that '"where a claimant suffers from
an alleged mental impairment, the AU is required to utilize a ·special technique· at the second
and third steps" of his eligibility determination. (R&R 27.f Second. Judge Davison indicated
that "'an ALJ must pay careful attention to developing the record when a disability claim is based

2

Judge Davison concluded that the ALJ employed this special technique. (R&R 29.)

5

upon a mental disorder." (R&R 29.) The Commissioner objects specifically to the second of
these conclusions, and challenges its three sources: ··a regulation, a ruling, and an unpublished
opinion.'' (See Obj's. 4.)
The primary support for Judge Davison's conclusion that an AU must "pay careful
attention to developing the record" is an appendix to a portion of the regulations governing
Social Security eligibility. (See R&R 29.) The appendix provides that because there are

''I p ]articular problems ... often

involved in evaluating mental impairments in individuals who

have long histories of repeated hospitalizations or prolonged outpatient care with supportive
therapy and medication,'' problems which arise in cases of "chronic organic, psychotic, and
affective disorders," the impairment may exceed what symptoms and signs indicate. 20 C.F.R.
pt. 404, subpt. P., app. 1 § 1200(E). Therefore, the appendix provides that it is "vital" that an
ALJ review ''all pertinent information relevant to [the claimant's] condition, especially at times
of increased stress." (/d.)
The Commissioner characterizes this portion of the appendix as "part of the introduction
to the mental impairments listings" \Vhich ··address[es I how the Commissioner assesses whether
a chronic mental impairment is of listing-level severity," as opposed to "set[lingJ a standard for
development of the record where a claimant alleges a mental impairment." (Obj's 4-5.)
Moreover, the Commissioner points out that the preceding section of the regulations explicitly
·'addresses the documentation of a mental impairment, and refers to the regulation at 20 C.F.R.

§ 416.912'' as governing the development of evidence. which ''applies equally to claims of
physical and mental impairments." (Obj's 5.) Given that the language at issue appears in an
appendix, and docs not clearly lay out any heightened duty in cases of mental impairment, the

6

Court is persuaded that the appendix. on its mrn, does not support the proposition that claims of
mental impairment occasion a heightened duty to develop the record.
There is, however, other support for Judge Davison· s conclusion. In a footnote, Judge
Davison cites a report and recommendation in Lacava v. As true, No. 11-CV -7727, 2012 WL
6621731 (S.D.N.Y. Nov. 27, 2012) (the "'/,acam R&R"). (R&R 29 n.11.) While, as the
Commissioner points out, the Lacava R&R is unpublished, (Obj's 6 ), it \\as adopted in its
entirety by the district court, see Lacava v. As true, No. 11-CV -7727, 2012 WL 6621722
(S.D.N.Y. Dec. 19, 2012). In the Lacava R&R, Magistrate Judge Sarah Netburn ("Judge
Netburn") explained that "'the AU's duty to develop the record is enhanced when the disability
in question is a psychiatric impairment," citing 20 C.F.R. pt. 404. subpt. P., app. 1 § 12.00(i). the
very same portion of the regulations discussed above. Lacava. 2012 WL 6621731, at *II. Judge
Netburn also cited Social Security Ruling 85-15, which discusses ·'the difficulty'' in determining
the disability of a person suffering from a mental health impairment, because such a person
"adopt[ s J a highly restricted and/or inf1exible lifestyle within which they appear to function
well,'' as well as Caputo v. Astrue, No. 07-CV-3992. 2010 WL 3924676 (E.D.N.Y. Sept. 29,
201 0), which discusses the "enhanced obligation to obtain a broad view of the claimant's history
and abilities is especially relevant once the AIJ has recognized an impairment and subsequently
must determine the date of its onset." Lacava, 2012 WL 6621722, at* 12 (internal quotation
marks omitted).
The Commissioner challenges the relevance of both SSA Ruling 85-15 specifically and
Lacava more generally. Addressing the former, the Commissioner contends that while the ruling
"addresses the use of the medical-vocational guidelines as a framework for evaluating mental
impairments,'' and the "'need to evaluate whether a claimant can adapt to the demands of the

7

workplace where a claimant appears to be functioning in a structured setting." it ··imposes no
special duty on the [AIJl to develop the record where a claimant alleges a mental impairment."
(Obj's 6.) Addressing the latter. the Commissioner argues simply that the Lacam R&R should
not be followed. citing several cases that purportedly stand for the proposition that after the
Commissioner "has compiled a claimant's complete medical history ... 'the ALJ is under no
obligation to seck additional infonnation in advance of rejecting a benefits claim."' (Id. (quoting

Rosa, 168 f.3d at 79 n.5).)
The Court finds the Commissioner's objections on this point to be without merit. As an
initial matter. although the Commissioner is correct that 20 C.F.R. § 416.912(d) establishes the
same duty to develop the record to all disability claimants. its language is still consistent with the
application of a heightened duty in some circumstances. Indeed, while the end of goal of
"develop[ingl" a •·complete medical history" is the same in all cases. more effort may be
required to reach that goal when mental impairment is alleged because of the difficulties unique
to such cases. as explained in Social Security Ruling 85-15 and Appendix 1. 20 C.f.R.

§ 416.912(d). 3
For this reason, it is unsurprising that the Lacava court is not alone in the Second Circuit
in holding that an AU has a heightened duty to develop the record when a claimant asserts a
mental impairment. See, e.g., Corporan v. Comm 'r of'Soc. Sec., No. 12-CV -6704. 2015 WL

3

It also bears noting that courts have held that an ALl has a heightened duty to develop
the record when a claimant appears prose. as Plaintifl did here. See. e.g.. Nelms\'. Astrue. 553
F.3d I 093, 1098 (7th Cir. 2009) ("The duty Ito develop the record I is enhanced when a claimant
appears without counsel ... .");Lashley\'. Sec)' ofHealrh and Human ,')'en•s., 708 F.2d 1048.
I 051 (6th Cir. 1983) (noting that there is a "special duty on the administrative law judge where
the claimant appears without counsel"); Smith v. Harris, 644 F.2d 985. 989 (3rd Cir. 1981)
("Particularly where the claimant is unrepresented by counseL the AU has a duty to exercise a
heightened level of care and assume a more active role." (internal quotation marks omitted)).
8

321832, at *22 (S.D.N.Y. Jan. 23, 2015) ("'The AU's duty to develop the record is enhanced
when the disability in question is a psychiatric impairment."); Rushansky v. Comm 'r ojSoc. Sec.,
No. 13-CV-2574, 2014 WL 4746092, at *5 (S.D.N.Y. Sept. 24, 2014) ("When a disability claim
is based on a psychiatric illness[,] the AU's duty to develop the record is enhanced.'' (internal
quotation marks omitted)); Hidalf?o v. Colvin, No. 12-CV-9009, 2014 WL 2884018, at *4
(S.D.N.Y. June 25, 2014) (noting that the AU's duty to develop the record is "particularly
important where an applicant alleges his is suffering from a mental illness"); Camilo v. Comm 'r

oj'the Soc. Sec. Admin., No. 11-CV-1345, 2013 WL 5692435, at *22 (S.D.N.Y. Oct. 2, 2013)
("[l]t is the AU's duty to develop the record and resolve any known ambiguities, and that duty is
enhanced when the disability in question is a psychiatric impairment."); see also Meriwether v.

Astrue, No. 12-CV-67, 2014 WL 8850108, at *6 (D.D.C. Nov. 24, 2014) ( .. The duty [to develop
the record] is heightened ... when the claimant is the victim of a mental illness that may
decrease his ability to represent himself." (internal quotation marks omitted)); ,)'chwan::. v.

Colvin. No. 13-CV-1101, 2014 WL 4722214, at* 11 (D. Or. Sept. 22. 2014) ("[T]he court
considers the enhanced duty of the AU to develop the record in cases involving claimants with
potential mental illness .... "); Quevedo

1'.

Colvin, No. 13-CV-6146, 2014 WL 3529435, at *5

(C.D. Cal. July 15. 2014) C'[T[he AU's duty to develop [the record] was 'heightened' because
there was evidence indicating the existence of a mental impairment.").
None ofthe cases that the Commissioner cites in support of her argument concern a
claimant who asserts only a mental impairment, or, for that matter, reject the application of a
heightened standard in such circumstances. See Rosa, 168 F.3d at 74 (physical disability
resulting from fallen refrigerator door); Coglitore v. Astrue, No. 11-CV-3683, 2012 WL
2512391, at *1, *3, *6 (S.D.N.Y. June 29, 2012) (physical disability consisting. inter alia, of

9

lower back pain and diabetes, together with allegations of depression and anxiety for which the
claimant never sought treatment): Arholeda v. Astrue, No. 12-CV-3987 (S.D.N.Y. tiled May 18.
2012), Dkt. No. 30 at 2 (report and recommendation in case of physical disability consisting of
sleep apnea. respiratory distress, and a clavicle fracture): Batista ex ref. 1\,f B. v. Astrue. No.
08-CV-2136. 2010 WL 3924684. at *1 (E.D.N.Y. Sept. 29. 2010) (physical disability involving.
inter alia, legs, ears, and heart); Brown v. Comm 'r ofSoc. Sec., 709 F. Supp. 2d 248. 250
(S.D.N.Y. 2010) (physical disability consisting of pain and difficulty breathing); Spurill v.

Astrue. No. 06-CV -5792, 2008 WL 4949326, at *2 (S.D.N.Y. Nov. 19, 2008) (physical disability
resulting from multiple sclerosis). Accordingly. based on the case law. and because the
Commissioner failed to identify any conilicting authority, the Court finds that Judge Davison
correctly determined that the ALJ had a heightened duty to develop the record in this case.
b. Failure to Re-contact the Treating Physician
The Commissioner next contends that Judge Davison incorrectly concluded that the ALJ
erred in "not recontacting Dr. Johnson 'to seek additional information and clarification regarding
her assessment of the nature and severity of fP]laintif'fs impairments."' (Obj's 7 (quoting R&R
32-33).) In support of his conclusion, Judge Davison cited two regulations. 20 C.F.R.

§§ 404.1512( c )(I) and 416. 912( e )(1 ), which collectively provide that the ALJ must "seek
additional evidence or clarification from [the] medical source when [a] report from [the] medical
source contains an conflict or ambiguity that must be resolved.'' (R&R 32.) Judge Davison also
cited two cases-Correale-Englehart \'. Astrue, 687 F. Supp. 2d 396 (S.D.N.Y. 2010), which
provides that ''ira physician. s report is believed to be insuf1iciently explained. lacking in
support. or inconsistent with the physician's other reports, the ALJ must seek clarification and
additional information from the physician, as needed, to till any gaps before rejecting the

10

doctor's opinion," id. at 428, and Clark v. Comm ·,. ofSoc. Sec., 143 F.3d 115 (2d Cir. 1998),
(R&R 33 ). 4
In response, the Commissioner notes that the regulations Judge Davison cited were
terminated on March 26,2012 ''in order to give adjudicators more flexibility in determining
when and how to obtain information from medical sources to resolve an inconsistency or
insut1iciency in the evidence." (Obj's 7.) The Commissioner is correct: section (c) was removed
from both cited regulations on February 23, 2012 (cfTective March 26, 2012), and the summary
of the final rule makes clear that such change was intended to "modify[ l the requirement to
recontact ... medical source(s) first when [there is a] need to resolve an inconsistency or
insufficiency in the evidence." How We Collect and Consider Evidence of Disability, 77 Fed.
Reg. 10,651, 10,651 (Feb. 23, 2012) (codified at 20 C.F.R. pts. 404 and 416); see also

Borgsmiller

1'.

As/rue, 499 F. App'x 812,815 n.4 (lOth Cir. 2012) (recognizing that '·[e[ffective

March 26, 2012, the regulations governing an AU's ·duty' to recontact a medical source have
changed." and rather than recontact the treating physician, the AU "'may instead seek further
evidence from another source, including the claimant herself'). 5 Those regulations. therefore, do
not govern this case.
The regulations that now control, 20 C.F.R. §§ 404.1520b(c)(l) and 416.920b(c), provide
that re-contacting the treating physician is an option for correcting inconsistencies in the record,
but that the AU "'may choose not seek additional evidence or clarification from a medical source

4

While, as the Commissioner correctly points out, the R&R misquotes Clark. in that case
the Second Circuit nonetheless remanded to the district court because there \Vas "a serious
question as to whether the ALI's duty to develop the administrative record was satisfied'"
because the ALl had not sought out clarifying information from the doctor who had examined
the claimant. Clark, 143 F.3d at 118.
5

The Court notes that a number of other courts ha,·e made the same error and applied the
no\v-outdated regulations.
11

if!the ALJ] know[ s1from experience that the source either cannot or will not provide the
necessary evidence." 20 C.F.R. § 416.920b(c)(1); see also Cancel v. Colvin, No. 14-CV-2034,
2015 WL 865479. at *4 (S.D.N.Y. Mar. 2. 2015) (noting that the regulations "require the SSA to
attempt to resolve inconsistencies or insufficiencies in the medical record. and suggest. as the
first two options for doing so. recontacting the claimant's treating physician or requesting
additional existing records''). Nonetheless. courts in the Second Circuit have concluded, citing
these regulations. that the ALJ still has an obligation to re-contact the treating physician in some
cases. See, e.g, Se!ian v.

A.~·true.

708 F.3d 409, 421 (2d Cir. 2013) (noting that, in a case where

the treating physician's opinion was "remarkably vague,'' that ''[a]t a minimum. the ALJ likely
should have contacted [the treating physician l and sought clarification of his report,'' citing these
regulations); Ashley v. Comm 'r of'Soc. Sec., No. 14-CV-40. 2014 WL 7409594, at *4 (N.D.N.Y.
Dec. 30, 2014) (concluding that in the circumstances of the case, under these regulations, ''[ t ]he
ALJ ought to have contacted the doctor for clarification on his conclusion''). Accordingly, the

change in the regulations does not mean that the ALJ here had no duty to re-contact the treating
physician.
The Commissioner also contends that ('lark is inapplicable because, unlike in Clark.
where the court found that the treating physician could have clarified his report with clinical
findings. the record in this case already contains Dr. Johnson's clinical findings. which show
''continued improvement[] and that [P]laintitrs symptoms imposed only moderate limitations."
(Obj's 7-8.) The Commissioner's reading of Clark, however, is overly narrow. The Clark court
noted that. if contacted, the treating physician in that case also ··might have been able to provide
a medical explanation for why [the plaintifTs] condition deteriorated over time." Clark. 143
F.3d at 118. Thus, Clark stands for the general proposition that an ALJ may. in some

12

circumstances. have an obligation to recontact the treating physician as part of his or her "'duty to
develop the administrative record." !d.
The Second Circuit has, on other occasions, and outside the context of the governing
regulations, found that an ALJ sometimes has an obligation to seek additional information from
the treating physician, deriving that obligation, again, from the AU's general duty to develop the
record. See. e.g, Selian, 708 F.3d at 420 (''To the extent [thej record is unclear, the
Commissioner has an afiirmative duty to fill any gaps in the administrative record before
rejecting a treating physician's diagnosis.'' (internal quotation marks omitted)): Burgess

1'.

Astrue, 537 F.3d 117, 129 (2d Cir. 2008) ("'In light of the ALl's duty to afiirmatively develop the
administrative record, an ALl cannot reject a treating physician's diagnosis without first
attempting to fill any clear gaps in the administrative record." (internal quotation marks
omitted)): Schaal, 134 F.3d at 505 ("'First, even if the clinical findings \Vere inadequate, it was
the AU's duty to seck additional information from the [treating physician] sua sponte." (italics
omitted)). Therefore, the Court holds that, in some cases. the nature of the record may render
re-contacting the treating physician the best, if not the only, way to address gaps or
inconsistencies in the record, such that it is incumbent upon the AU to do so.
This is such a case. In making his decision, the ALl, at step four of his analysis,
determined that he could not afTord "great weight" to two reports Dr. Johnson submitted in
connection with this matter. (Administrative Record (''A.R.") 17 (Dkt. No. 11 ); see also R&R
10, 15-16 (summarizing Dr. Johnson's evaluation).) The ALJ determined that Dr. Johnson's
assessment of Plaintiff's "marked occupational" and "'mental limitations,'' including her
diagnosis of bipolar disorder and attention deficit hyperactivity disorder. was '"inconsistent" with
Dr. Johnson's '"own treatment notes" and ''the objective evidence contained in the record and

13

[PlaintifYs[ own statements ... regarding his mental functioning." (A.R. 17.) While the ALl
certainly is entitled to assess the treating physician's opinion to detennine how much weight to
aflord it, see 20 C.F.R. § 404.1527( c), at least some ofthe deficiencies that the ALJ points out,
namely apparent inconsistencies between Dr. Johnson's own notes and her reports and a failure
to ·'document the signs and symptoms'' in treatment logs, are precisely the types of
inconsistencies that Dr. Johnson would best be able to resolve. (A.R. 17.) Indeed, the summary
of the aforementioned rule which eliminated the re-contacting requirement contemplates
sensitivity to the ·'nature of the inconsistency'' in determining how best to resolve it, and appears
to recognize that the change in the regulations only ''significantly reduce[ s ]."rather than
eliminates, the need to re-contact a treating physician in Social Security eligibility cases. See
How We Collect and Consider Evidence of Disability. 77 Fed. Reg. at 10,651. I Jere. the AU
has made no finding, nor has the Commissioner made any argument, about \vhy Dr. Johnson
could not have resolved at least some of the inconsistencies at issue, the only circumstance in
which the regulations explicitly provide that re-contacting the treating physician is inappropriate.
See 20 C.F.R. §§ 404.1520b(c)(1). 416.920b(c).

Granted, ·•[t]he courts leave it to the tinder of fact to resolve any conf1icts there may be in
the medical testimony," and ·'the AU need not ·reconcile every conf1icting shred of medical
testimony.'" Johnson v. Colvin, No. 14-CV-2334, 2015 WL 400623. at *9 (S.D.N.Y. Jan. 30,
2015) (quoting Gaiotti v. Astrue, 266 F. App'x 66,67 (2d Cir. 2008)), adopted by 2015 WL
3972378 (S.D.N.Y. June 1, 2015). Nonetheless, because many ofthe inconsistencies at issue
here likely can be explained by Dr. Johnson, and given the heightened duty to develop the record
in cases of mental impairment discussed above. the Court finds that the AU had an obligation to
re-contact Dr. Johnson to seek clarifying information. See. e.g., Cancel. 2015 WL 865479, at

14

*4-5 (remanding case and holding, citing the now-controlling regulations, that the ALJ failed to
develop the record because the ALJ did not request additional records or information from the
claimant's three psychiatrists in light of··perceived inconsistencies"): Ashley, 2014 WL
7409594, at *3-4 (remanding case and holding, citing the nmv-controlling regulations. that
''[ wJhile the regulations afford an AU broad discretion in determining and resolving
inconsistencies,'' the ALJ erred in f~liling to ·'contact[l the doctor for clarification" of apparent
inconsistency between treating physician's conclusion and treatment records): 1'1/unoz v. Colvin.
No. 13-CV-1269, 2014 WL 4449788. at *13 (S.D.N.Y. Sept. 10. 2014) ("In this
Circuit ... where ... the ALl finds a treating physician· s opinion lacking in support. he or she
must seek additional information from the treating physician sua .\ponte before rejecting his or
her opinion."): Ryszetnyk v. Astrue, No. 12-CV-243 L 2014 WL 2986700, at* 11 (E.D.N.Y. July
1, 2014) ("If the ALJ was concerned that [the treating physician's] functional capacity
assessment contradicted his treatment notes or any other part of the record, she should have
requested additional information from him in order to fill any gap or deficiency in the record."):
Mendolia v. Astrue, No. 10-CV-417, 2013 WL 3356960, at *6 (E.D.N.Y. July 3, 2013) (holding,
without citing the outdated regulations at issue. that the ALJ failed to develop the record because
he did not seek additional information from the treating physician to resolve .. perceived
inconsistencies in his medical opinion"): Padro v. As/rue. No. 10-CV -3387, 2012 WL 3043166,
at *6 (E.D.N.Y. July 25, 2012) (same); cf' Hidalgo, 2014 WL 2884018, at *4 ("The AU must
contact medical sources and gather additional information if the AU believes that the record is
inadequate to make a determination. When the AU has failed to develop the record adequately,
the District Court must remand the case to the Commissioner for further development." (citing

Pratts v. Charter, 94 F.3d 34.39 (2d Cir. 1996))). But see Thompson v. Colvin, No. 12-CV-

15

7024, 2014 WL 7392889. at* 17 (S.D.N.Y. Dec. 29, 2014) (holding that AU had no obligation
to re-contact treating physician because her assessment was also inconsistent with the plaintiffs
testimony); Vanterpoo! v. Colvin, No. 12-CV -8789, 2014 WL 1979925, at *3 (S.D.N.Y. May 15,
2014) (holding that mere inconsistency in the record did not require an ALJ to re-contact the
treating physician for clarification, where there was no obvious gap in the record); Barry v.

Colvin, No. 12-CV-1124, 2014 WL 1219191, at *3 (W.D.N.Y. Mar. 24, 2014) ("lfthe AU
already possess a complete medical history, he is not obligated to [re-contact] a physician.''),

aff'd, No. 14-CV -1792, 2015 WL 1782315 (2d Cir. Apr. 21, 2015). Accordingly, the Court
concludes that Judge Davison did not err in finding that the AU failed to adequately develop the
record, which tinding is sufficient, on its own, for the Court to remand the case. See Pratts, 94
F.3d at 39 ('"When there arc gaps in the administrative record ... we have, on numerous
occasions, remanded ... for further development of the evidence." (internal quotation marks
omitted)); Echevarria v. Sec )1 of Health and Human Servs., 685 F.2d 751, 753 (2d Cir. 1982)
("Because in our view there was a failure to develop a full and adequate record, we reverse and
remand for a new administrative hearing."); Corporan, 2015 WL 321832, at *22 ("'When the
AU has failed to develop the record adequately, the district court must remand to the
Commissioner for further development.").
2. Failure to Adequately Consider the Record
a. Treating Physician Rule
Judge Davison also recommended that the Court remand the case because the AU failed
to follow the ''treating physician rule'' when he did not explicitly consider ··the frequency. length,
nature[,] and extent oftrcatment[.[ and the amount of medical evidence supporting Dr. Johnson's
opinion.'' (R&R 32.) The Commissioner objects to this conclusion and contends that because

16

''the AU thoroughly considered and analyzed Dr. Johnson's opinion and gave good reasons for
the weight he accorded Dr. Johnson's opinion,'' the AU "'applied the substance of the treating
physician rule,' and his decision should be affirmed. (Obj's 9 (citing Halloran v. Barnhart, 362
F.3d 28, 32-33 (2d Cir. 2004))./'
The Commissioner is correct that a recitation of every factor of the treating physician rule
is unnecessary; the ALJ need not explicitly consider each factor of the treating physician rule,
but rather must only follow its mandate more generally. See Halloran, 362 f.3d at 32-33: see

also Atwater

1'.

Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) ("We require no such slavish

recitation of each and every factor where the AU's reasoning and adherence to the regulation are
clear.''). While in one case, Selian v. Astrue, 708 F.3d 409 (2d Cir. 2013 ), the Second Circuit
indicated that it previously ''held that the ALJ must explicitly consider" the factors that make up
the treating physician rule, id. at 418, (a) that case did not turn on an explicit-consideration
standard, and (b) the only case it cited in support was Burgess v. Astrue, 537 F.3d 117 (2d Cir.
2008), which itself did not articulate an explicit-consideration standard in its discussion of the

6

The Commissioner also makes an argument in the "consideration of the evidence"
portion of her objections that is reminiscent of the objection considered above, namely that "the
AU considered both a complete set of treatment notes and multiple opinions from Dr. Johnson,"
and then "determined that [the opinions] were inconsistent with each other and the ... treatment
notes." (Obj's 8.) The Commissioner contends that these conf1icts in the medical evidence were
"the AU's duty to resolve,'' (id. ), and cites Veino v. Barnhart, 312 F.3d 578 (2d Cir. 2002), for
the proposition that ''[g]enuine conflicts in the medical evidence are for the Commissioner to
resolve" by accepting parts of a doctor's opinion and rejecting others, (id. (citing Veino, 312 F.3d
at 588)). The Commissioner misrepresents the Veino opinion: the Veino court did not refer
specifically to a situation in which the treating physician's own opinion was inconsistent with
itself, but rather to a situation in which it was ·'contradicted by other substantial evidence on the
record." !d. Moreover, unlike the situation in Veino, where the ALJ compared the medical
evidence ofTered by the treating physician to that offered by the consultative examiner, id., the
ALJ here only stated that Dr. Johnson's report was "not consistent with the examination" of Dr.
Alan Dubro. the consultative examiner. (A.R. 17). The instant case therefore better resembles
the cases discussed supra, wherein ALJs failed to adequately develop the record because they
did not re-contact the treating physician. This objection is, accordingly, \Vithout merit.
17

treating physician rule, id. at 129. 7 Accordingly. the Court concludes that the cases that found an
explicit recitation of the factors unnecessary are controlling, and concludes that Judge Davison
erred in faulting the AU for not making explicit findings about each factor of the treating
physician rule. (R&R 32i
LQ.Illi:!ion of Baccher-DiSalvo
Judge Davison also concluded that the ALJ "failed to properly consider the opinion of
[social worker] Baecher-DiSalvo." which was the most ··extensive" examination of"[P]laintiffs
mental impairment." (R&R 33-34.) In particular, Judge Davison found that the ALl
"inexplicably ignored [Pllaintiffs course of treatment at [the hospitall from July 2009 through
December 2009," and "did not acknowledge any findings in Baecher-DiSalvo's medical source
statement, apart from his dismissal of her GAF rating (45).'' (R&R 34.) In this vein, Judge
Davison emphasized the importance of non-medical opinions, including the opinions of licensed
social workers. (R&R 33-34 (citing SSR 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006)
(noting that opinions from ''licensed clinical social workers .... are important and should be
evaluated on key issues such as impairment severity and functional effects")).) See also Mitchell

7

While the Second Circuit applied the explicit-consideration standard in one other 2010
summary order. see Gunter''· Comm 'r ofSoc:. Sec., 361 F. App 'x 197, 199 (2d Cir. 201 0).
among the other federal circuits, such standard appears to have only been applied in a single
unpublished case, see Dominguez-Herrera v. Astrue, 334 F. App 'x 651, 653 (5th Cir. 2009).
8

Notably, however, "the 'treating physician rule' is inextricably linked to the duty to
develop the record. Proper application of the rule ensures that the claimant's record is
comprehensive, including all relevant treating physician diagnoses and opinions. and requires the
ALJ to explain clearly how these opinions relate to the final detem1ination. '' Johnson. 2015 WL
400623, at *8 (some internal quotation marks omitted): accord Grant\'. C'olvin, No. 13-CV7673. 2014 WL 4667327. at *12 (S.D.N.Y. Sept. 19, 2014): Lacava. 2012 WL 6621731, at *13.
Therefore. while it was not error for the AU to not explicitly cite the factors that make up the
treating physician rule. the AU may have violated the rule by. as noted above. failing to seck
additional information from Dr. Johnson regarding perceived inconsistencies in her opinion.
18

v. Colvin, No. 09-CV-5429, 2013 WL 5676289, at *8 (E.D.N.Y. Oct. 17, 2013) (noting that such

opinions may ·'properly be determined to outweigh the opinion from a medical source, including
a treating source" (internal quotation marks omitted)).
In response, the Commissioner argues that the AU properly "aiiorded the social
worker's assessments little weight ... because her report that [P]laintiffhad marked limitations
conf1icted with opinions from acceptable medical sources that [he] had only mild to moderate
limitations.'' (Obj's 9). As an example, the Commissioner cites Dr. Alan Dubro's ("Dr. Dubro")
opinion. wherein Dr. Dubro concluded that his findings "were consistent with mood disorder
symptoms that did not significant[ly] interfere Yvith [P]laintiff's ability to function on a daily
basis." (ld at 10.)

It is within the AU's discretion to evaluate Baecher-DiSalvo's report and determine what
weight to afford it based on the evidence in the record. See Diaz v. Sha!a!a, 59 f.3d 307, 314
(2d Cir. 1995) ("'[T]he AU has the discretion to determine the appropriate weight to accord
[an] ... opinion based on all the evidence before him ... .''); Genovese v. Astrue, No. 11-CV2054, 2012 WL 4960355, at * 15 (E.D.N.Y. Oct. 17, 2012) (noting than an AU ''should use his
discretion to determine the appropriate weight to accord the opinion., of a medical source other
than the treating physician (internal quotation marks omitted)). Here, the AU afforded "[!little
weight" to Baecher-DiSalvo's opinion because the ALJ determined that the opinion was
contradicted by other evidence in the record. (A.R. 18.) 9 Accordingly, the ALJ acted
appropriately within his discretion: far from disregarding Baecher-DiSalvo's opinion. the AU
reviewed it and. on its merits. determined that it was not entitled to substantial weight. Judge

9

The AU appears to have also discounted Baecher-DiSalvo's opinion because it "was
completed specifically for the purposes of claiming disability." (A.R. 18.)
19

Davison therefore erred in finding that the ALJ failed to properly consider Baecher-DiSalvo 's
opinion. 10
II. Conclusion
--------For the foregoing reasons, the Court adopts Judge Davison' Report and Recommendation
in part, finding that while the AU adequately considered the record, he failed to sufficiently
develop it. The case is therefore remanded for further administrative proceedings consistent with
this opinion pursuant to 42 U.S.C. § 405(g).

SO ORDERED.
DATED:

July~j(}

, 2015
White Plains, New York

UN I'll :D STATES DftSTRICT JUDGE

10

The Court notes. hO\vcvcr, that Judge Davison is correct that the AU appears to have
ignored five months of Plaintifrs treatment, namely the treatment Plainti1T received from Julv
2009 through December 2009. (R&R 34.) The AU should clarify this portion of his findings on
remand.
20