Burke v. Commissioner of Social Security

Filing 28

ORDER: on re: 23 Report and Recommendation. For the foregoing reasons, the Court adopts Judge Davison' s Report and Recommendation. The case is therefore remanded for further administrative proceedings consistent with this opinion pursuan t to 42 U.S.C. § 405(g). The Clerk is to terminate the pending motions, (Dkt. No. 10, 21), and close this case, and as further set forth in this order. Motions terminated: 21 CROSS MOTION for Judgment on the Pleadings, filed by Jason Burke, 10 MOTION for Judgment on the Pleadings, filed by Commissioner of Social Security. (Signed by Judge Kenneth M. Karas on 12/5/2017) (ap)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JASON BURKE,
Plaintiff,

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Case Nq. l 6-CV-6520 (KMK) (PED)
v.

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COMMISSIONER OF SOCIAL SECURITY,

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ORDER

Defendant.

KENNETH M. KARAS, District Judge:
Jason Burke ("Plaintiff') brings this action against the cdmmissioner of Social Security
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("Defendant" or the "Commissioner"), pursuant to 42 U.S.C. § 4p5(g), challenging the decision
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of an administrative law judge (the "ALJ") to deny Plaintiffs apflication for benefits on the
ground that Plaintiff was not disabled within the meaning of the

~ocial Security Act (the "SSA"),
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42 U.S.C. §§ 423, et seq. Plaintiff and Defendant cross-moved ff r judgment on the pleadings.
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(Dkt. Nos. 10, 21.) The Court referred the case to Magistrate Judge Paul E. Davison ("Judge

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Davison") pursuant to 28 U.S.C. § 636(b)(J)(A). (See Dkt. No.~.) On August 21, 2017, Judge
Davison issued a Report and Recommendation (the "R&R") recdmmending that the Court grant
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Plaintiffs Motion for Judgment on the Pleadings, deny Defendartt's Cross-Motion for Judgment
on the Pleadings, and remand the ease for further administrative

~roceedings. (Dkt. No. 23.)

Defendant filed an objection to the R&R on September 19, 2017 J(Dkt. No. 26), and Plaintiff
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filed a response to the objection on October 2, 2017, (Dkt. No. 27). For the reasons discussed
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below, the Court adopts the R&R and remands the case to the c1mmissioner for further
administrative proceedings consistent with this Opinion pursuan~ to 42 U.S.C. § 405(g).
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I. Discussion
A. Standard of Review
1. Review qf a Report ai;id Recomrpen<;Iation
A district court reviewing a report and recommendation

~ddressing a dispositive motion
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"may accept, reject, or modify, in whole or in part, the findings qr recommendations made by the
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magistrate judge." 28 U.S.C. § 636(b)(l), see also Bradley v.

C~mm 'r ofSoc. Sec., No.

12-CV-

7300, 2015 WL 1069307, at *l (S.D.N.Y. Mar. 11, 2015) (same{ Pursuant to 28 U.S.C.
§ 636(b)(l) and Federal Rule of Civil Procedure 72(b)(2), partie~I may submit objections to the
magistrate judge's report and recommendation. The objections

~ust be "specific" and "written,"
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and must be made "[w]ithin 14 days after being served with a co~y of the recommended
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disposition." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(l ).
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When a party submits timely objections to a report and re'commendation, as the
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Defendants have here, the district court reviews de novo the portlons of the report and
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recommendation to which the party objected. See 28 U.S.C. § 6~6(b)(l); Fed. R. Civ. P.
72(b)(3); Bradley, 2015 WL 1069307, at* 1. The district court "fnay adopt those portions of
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the ... report [and recommendation] to which no 'specific writte~ objection' is made, so long as

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the factual and legal bases supporting the findings and conclusiobs set forth in those sections are
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not clearly erroneous or contrary to Jaw." Eisenberg v. New Engl Motor Freight, Inc., 564 F.
Supp. 2d 224, 226 (S.D.N.Y. 2008) (quoting Fed. R. Civ. P. 72(tj)(2)); see also Alverio v. Colvin,
No. 13-CV-4722, 2015 WL 1062411, at *l (S.D.N.Y. Mar. 9,

2~15) ("When the parties make no
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objections to the [r]eport [and recommendation], the [c]ourt may1adopt [it] if there is no clear
error on the face of the record." (internal quotation marks omitte~)).

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2. Review of a

Soci~I

Secµrity Claim

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In reviewing a Social Security claim, the reviewing court!does not determine for itself

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whether the plaintiff was disabled, and therefore entitled to SociJI Security benefits. See Schaal
v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) ("[I]t is not our

functi~n to determine de nova whether
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[the] plaintiff is disabled." (italics, alteration, and internal quotation marks omitted)); Riordan v.
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Barnhart, No. 06-CV-4773, 2007 WL 1406649, at *4 (S.D.N.Y.1May 8, 2007) ("The court does
not engage in a de novo determination of whether or not the

clai~ant is disabled ...."(italics

omitted); Van Dien v. Barnhart, No. 04-CV-7259, 2006 WL

785~81, at *8 (S.D.N.Y. Mar. 24,
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2006) ("The court is not permitted to determine whether the cla+ant is disabled de nova."

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(italics omitted)). Instead, the reviewing court considers merely l'whether the correct legal
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standards were applied and whether substantial evidence supportf the decision." Butts v.
Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended on reh'g ihpart by 416 F.3d 101 (2d Cir.
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2005). Accordingly, a court may overturn an ALJ's determinatidn only if it was "based upon

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legal error" or "not supported by substantial evidence." Rosa v. Callahan, 168 F .3d 72, 77 (2d
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Cir. 1999) (internal quotation marks omitted). "'Substantial evi~ence' is 'more than a mere
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scintilla'[;] ... [i]t means such relevant evidence as a reasonablelmind might accept as adequate
to support a conclusion."' Lamay v. Comm 'r ofSoc. Sec., 562

F.~d 503, 507 (2d Cir. 2009)
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(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In ctnsidering whether substantial
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evidence supports the ALJ's decision, the reviewing court must 'Jexamine the entire record,
including contradictory evidence and evidence from which confljcting inferences can be drawn."
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal

q~otation marks omitted).
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In determining whether a claimant is entitled to disability! insurance benefits, the ALJ
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follows a five-step sequential analysis:

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1. The Commissioner considers whether the claimant is ¢urrently engaged in
substantial gainful activity.
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2. If not, the Commissioner considers whether the claim4nt has a "severe
impairment" which limits his or her mental or physical ability to do basic work
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activities.
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3. If the claimant has a "severe impairment," the Comm1·sioner must ask
whether, based solely on medical evidence, claimant has n impairment listed in
Appendix I of the regulations. If the claimant has one o these enumerated
impairments, the Commissioner will automatically consi er him [or her] disabled,
without considering vocational factors such as age, education, and work
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experience.
4. If the impairment is not 'listed" in the regulations, thelCommissioner then asks
whether, despite the claimant's severe impairment, he or khe has residual
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functional capacity to perform his or her past work.
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5. If the claimant is unable to perform his or her past wo~k, the Commissioner
then determines whether there is other work which the cl'imant could perform.
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Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000)(citing DeChi'1i°co v. Callahan, 134 F.3d 1177,
1179-80 (2d Cir. 1998)); see also 20 C.F.R. § 404.1520(a)(4)(i)i(v). The claimant bears the
burden of proof for the first four steps. See Green-Younger v. Bqrnhart, 335 F.3d 99, 106 (2d
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Cir. 2003). If, however, the claimant proves that the impairmentlprevents him or her from

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performing the claimant's past work, the burden shifts to the Corhmissioner at the fifth step. See

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id. There, the Commissioner must prove 'ihat there is other gait! work in the national
economy that [the claimant] could perform." Kamerlingv. Massrnari, 295 F.3d 206, 210 (2d
Cir. 2002). If the ALJ determines that "significant numbers of jdbs exist in the national economy
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that the claimant can perform," Mcintyre v. Colvin, 758 F.3d

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must determine that the individual is not disabled, see 20 C.F.R.

~ 404.1520(a)(4)(v).
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151 (2d Cir. 2014), the ALJ

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B. Anfilysis

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The Court adopts the extensive recitation of facts set fortt by Judge Davison in the R&R,

(R&R 2-35), and assumes the Parties' familiarity with it. The Crurt will repeat only those facts
relevant to the consideration of Defendant's objection.

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The Commissioner objects to Judge Davison's

recomme~dation that the Commissioner's

motion be denied and that the case be remanded for further procJedings because the ALJ failed
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to properly develop the record by failing to re-contact Dr. Rybakbv after finding apparent
inconsistences between his June 18, 2015 medical source statem~nt and his treatment notes. (See
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Comm'r's Obj's to R&R ("Obj's") 1-2 (Dkt. No. 26); R&R 36-f8.) The Commissioner argues
that the ALJ properly developed the record, and that Judge

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Davi~on

"ALJ was required to re-contact Plaintiffs treating psychiatrist

erroneously ruled that the

b~fore finding the psychiatrist's
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opinion was inconsistent with other evidence in the record."

(O~'s

1-2.)

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The ALJ has an affirmative obligation to develop the rec~rd. See Burgess v. Astrue, 537
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F.3d 117, 128 (2d Cir. 2008). For example, the ALJ must "seek rdditional evidence or
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clarification where the documentation from a claimant's treating~hysician, psychologist, or
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other medical source is inadequate to determine whether the clairant is disabled." Velez v.
Colvin, No. 14-CV-3084, 2017 WL 1831103, at* 15 (S.D.N.Y.

~fay 5, 2017) (alterations and
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internal quotation omitted). "This duty to develop the record is tjarticularly important where an
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applicant alleges he is suffering from a mental illnesses, due to ttte difficulty in determining
whether these individuals will be able to adapt to the demands

o~I stress of the workplace."

Hidalgo v. Colvin, No. 12-CV-9009, 2014 WL 2884018, at *4

(~.D.N.Y,

June 25, 2014)

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(internal quotation marks omitted). "[I]n some cases, the nature bfthe record may render re!
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contacting the treating physician the best, if not the only, way to ~ddress gaps or inconsistencies

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in the record, such that it is incumbent upon the ALJ to do so." fabrielsen v. Colvin, No. 121

CV-5694, 2015 WL 4597548, at *6 (S.D.N.Y. July 30, 2015); se~ also Selian v. Astrue, 708 F.3d
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409, 420 (2d Cir. 2013) ("To the extent [the] record is unclear,

t~e

Commissioner has an

affirmative duty to fill any gaps in the administrative record bef+e rejecting a treating
physician's diagnosis." (internal quotation marks omitted)); Burgess, 537 F.3d at 129 ("In light
of the ALJ's duty to affirmatively develop the administrative

rec~rd, an ALJ cannot reject a

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treating physician's diagnosis without first attempting to fill any rlear gaps in the administrative

record." (internal quotation marks omitted)); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)
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("First, even if the clinical findings were inadequate, it was the ~LJ's duty to seek additional
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information from the [treating physician] sua sponte." (italics orriitted)).
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The Commissioner attempts to distinguish the facts here from Gabrielsen, arguing that
"this is not a case where the circumstances required the ALJ to r1-contact the treating physician
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to clarify his opinion." (Obj's 2; see also id. 5-7) The Court agres with Judge Davison that, in
fact, this is such a case. The circumstances here are nearly ident~cal to those in Gabrielsen,
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where the ALJ "determined that he could not afford 'great weighj' to two reports [the treating
physician] submitted in connection with this matter." 2015 WL ~597548, at *7. As the

Gabrielsen Court explained, "[t]he ALJ detennined that [the trolling physician's] assessment of
[the p]laintiffs marked occupational and mental limitations, ... was inconsistent with [the
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treating physician's] own treatment notes and the objective evidejnce contained in the record and
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[the p]laintiff sown statements ... regarding his mental functioning." Id. (internal quotation

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marks omitted).

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Here, as in Gabrielsen, the ALJ determined that he couldigive "partial, but limited,
weight" to Dr. Rybakov's medical opinion dated June 18, 2015 dutlining Plaintiffs serious

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limitations. (SSA Administrative Record ALJ Hearing Decision!("ALJ Hearing Decision") at 26
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(Dkt. No. 9).) This was because "treatment notes do not support!the limitations stated, other than
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[Plaintiffs] self-serving statements about getting along with oth~rs." (Id) The ALJ further
commented that there were "no documented limitations in the retord to this severe degree," and
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"no evidence in the record that [Plaintift] has ever experienced ahy episodes of decompensation
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to suggest he would miss 4 days of work per month." (Id.) The {\LJ noted that Plaintiffs own
statements were contrary to the treating physicians conclusions.

i(/d.)

The ALJ also noted that

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"interestingly ... with all of these severe restrictions, Dr. Rybak~v finds [Plaintiff] capable of
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managing benefits on his own." (Id.) But, as Judge Davison explained, the record here

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contained additional gaps because it did not include treatment notes from the therapists working
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with Dr. Rybakov, who regularly treated Plaintiff as St. Marks P'ace Institute. (SSA
Administrative Record Medical Records Ex. 7, at 571-97 (Dkt.

~o. 9); R&R 38 n.21.)

Gabrielsen 's conclusion is on point: "While the ALJ ce+inly is entitled to assess the

treating physician's opinion to determine how much weight to a1ord it, at least some of the
deficiencies that the ALJ points out ... are precisely the types o~ inconsistencies that Dr.
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[Rybakov] would best be able to resolve." 2015 WL 4597548, a{ *7 (citation omitted).
Specifically, as relevant here, the ALJ identified apparent inconsistencies between the treatment
notes and the limitations; inconsistencies between the conclusion! of severe restrictions and the
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conclusion the Plaintiff was able to manage benefits; the lack of treatment notes to support the
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conclusion Plaintiff would be absent from work four days a

mon~h; the lack of documented

limitations in the record; and the gap in the record of the !realm+ notes from St. Marks Place
Institute. (ALJ Hearing Decision 26.) Dr. Rybakov would best ~e able to resolve these

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inconsistencies. As in Gabrielsen, "the ALJ has made no finding, nor has the Commissioner

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made any argument, about why Dr. [Rybakov] could not have reLived at least some of the

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inconsistencies at issue, the only circumstance in which the [Soc,al SecurityJ regulations
explicitly provide that re-contacting the treating physician is inaJpropriate." 2015 WL 4597548,
at *7.
It is true that, "[ t ]he courts leave it to the finder of fact to iresolve any conflicts there may

be in the medical testimony, and the ALI need not reconcile evet conflicting shred of medical
testimony." Id. (internal quotation marks omitted). "Nonethelefs, because many of the
inconsistencies at issue here likely can be explained by Dr.

[Ryb~kov], and given the heightened

duty to develop the record in [c]ases of mental impairment disculsed above, the Court finds that
the ALJ had an obligation to re-contact Dr. [Rybakov] to seek

cl~rifying information. Id. (citing
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inter alia Cancel v. Colvin, No. 14-CV-2034, 2015 WL 865479, ~t *4-5 (S.D.N.Y. Mar. 2, 2015)

(remanding case where the ALI failed to develop the record becf se the ALJ did not request
additional records or information from the claimant's three psyc1iatrists in light of
unsubstantiated conclusions and "perceived inconsistencies")); s~e also Reynoso v. Colvin, No.
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13-CV-5587, 2015 WL 1378902, at *12 (S.D.N.Y. Mar. 26,

201~) (remanding when ALJ

determined "[n]o explanation or detailed analysis was provided tl support the extreme
limitations mentioned in this report" and the "conclusions were

~ot supported by the record," but
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failed to develop record by re-contacting treating physicians); As~ley v. Comm 'r ofSoc. Sec., No.

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14-CV-0040, 2014 WL 7409594, at *4 (N.D.N.Y. Dec. 30, 2014} (holding that "[w]hile the
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regulations afford an ALJ broad discretion in determining and re~olving inconsistencies," the
ALJ erred in failing to "contact[ ] the doctor for clarification" of

~pparent inconsistency between

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treating physician's conclusion and treatment records); Munoz v.:Colvin, No. 13-CV-1269, 2014
WL 4449788, at *13 (S.D.N.Y. Sept. 10, 2014) ("In th[e Secondl Circuit ... where ... the ALJ

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finds a treating physician's opinion lacking in support, he or she ~ust seek additional
information from the treating physician sua sponte before

rejecti~g his or her opinion.") (italics
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omitted); Ryszetnyk v. Astrue, No. I2-CV-243 I, 20I4 WL 2986~00, at *I I (E.D.N.Y. July 1,
20I4) ("If the ALJ was concerned that [the treating physician's], nctional capacity assessment
contradicted his treatment notes or any other part of the record, s e should have requested
additional information from him in order to fill any gap or deficifncy in the record."); but see
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Thompson v. Colvin, No. 12-CV-7024, 2014 WL 7392889, at *31(S.D.N.Y. Dec. 29, 20I4)
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(holding that ALJ had no obligation to re-contact treating physician because her assessment was
also inconsistent with the other record evidence, including plaint' ff s testimony); Vanterpool v.

Colvin, No. 12-CV-8789, 20I4 WL I 979925, at* I 7 (S.D.N.Y.

ay 15, 20I4) (holding that

mere inconsistency in the record did not require an ALJ to re-co tact the treating physician for
clarification, where there was no obvious gap in the record);

Bar~ v. Colvin, No. I2-CV-l 124,
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2014 WL 1219191, at *3 (W.D.N.Y. Mar. 24, 2014) (holding th~t where no doctor had placed a
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limit on claimant's physical abilities, ALJ was not obligated to r~-contact a physician if the ALJ
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already possessed a complete medical history) aff'd, 606 F.App'f 62 I (2d Cir. 2015).
Accordingly, the Court concludes that Judge Davison was
to adequately develop the record and remanding the case.

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correc~ in finding that the ALJ failed

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II. Conclusion

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For the foregoing reasons, the Court adopts Judge Davis+' s Report and
Recommendation. The case is therefore remanded for further adfliinistrative proceedings
consistent with this opinion pursuant to 42 U.S.C. § 405(g).

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The Clerk is to terminate the pending motions, (Dkt. No. !10, 21), and close this case.

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SO ORDERED.
DATED:

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December
2017
White Plains, New York

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