Wolf v. Colvin

Filing 13

DECISION AND ORDER granting 7 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order; denying 10 Commissioner's Motion for Judgment on the Pleadings. (clerk to close case.) Signed by Hon. Michael A. Telesca on 8/30/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MARGARET M. WOLF,
Plaintiff,
-vs-

No. 1:15-CV-00036 (MAT)
DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I.

Introduction
Represented

by

counsel,

plaintiff

Margaret

M.

Wolf

(“plaintiff”) brings this action pursuant to the Social Security
Act (the “Act”), seeking review of the final decision of defendant
the Acting Commissioner of Social Security1 (the “Commissioner” or
“defendant”) denying her application for supplemental security
income

(“SSI”).

The

Court

has

jurisdiction

over

this

matter

pursuant to 42 U.S.C. § 405(g). Presently before the Court are the
parties’ cross-motions for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
discussed below, plaintiff’s motion is granted to the extent that
this

case

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.

1

Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
this matter.

II.

Procedural History
Plaintiff

protectively

filed

July 19, 2012, which was denied.
49-60, 109-14.

an

application

for

SSI

on

Administrative Transcript (“T.”)

At plaintiff’s request, a hearing was held before

administrative law judge (“ALJ”) Robert C. Dorf on July 29, 2013.
T. 25-43.

On August 27, 2013, ALJ Dorf issued a decision in which

he found that plaintiff was not disabled as defined in the act.
T. 9-21.

The Appeals Council denied plaintiff’s request for

review, rendering the ALJ’s determination the Commissioner’s final
decision.

T. 1-5.

This action followed.

III. The ALJ’s Decision
At step one of the five-step sequential evaluation, see
20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff
had not engaged in substantial gainful activity since July 19,
2012, the alleged onset date.
that

plaintiff

suffered

from

T. 14.
the

At step two, the ALJ found

severe

impairments

disorder, NOS, and substance abuse disorder.2

of

mood

Id. At step three,

the ALJ found that plaintiff’s impairments, including the substance
use disorders, met sections 12.04, 12.06, and 12.09 of 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 416.920(d)).
“In

1996,

Congress

enacted

the

Id.

Contract

with

America

Advancement Act . . .which amended the Act by providing that [a]n
2
As discussed later in this Decision and Order, the medical evidence of
record is incomplete with respect to plaintiff’s mental health treatment. It is
therefore unclear whether a more complete record would have revealed additional
severe impairments.

2

individual shall not be considered ... disabled ... if alcoholism
or drug addiction would ... be a contributing factor material to
the Commissioner’s determination that the individual is disabled.”
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012)
(internal

quotations

omitted).

Accordingly,

the

ALJ

next

considered whether, if plaintiff stopped her substance abuse, the
remaining limitations would cause more than a minimal impact on her
ability to perform basic work activities, and concluded that they
would.

T. 16.

However, the ALJ also concluded that if plaintiff

stopped her substance abuse, she would not have an impairment or
combination of impairments that would meet or medically equal one
of the listed impairments set forth in 20 C.F.R. § 404, Subpart P,
Appendix 1.

Id.

Before proceeding to step four, the ALJ determined that, if
plaintiff stopped her substance abuse and considering all of
plaintiff’s impairments, plaintiff retained the RFC to perform
light work as defined in 20 CFR 416.967(b) “except that [she] is
limited to performing simple, routine, and repetitive tasks in a
low

stress

environment

requiring

no

numerical production daily quota work.

decision-making

and

no

In addition, [she] is

precluded from operating machinery, can only occasionally climb
stairs, and can tolerate only occasional exposure to dusts, gases,
fumes, and temperature extremes.”

3

T. 17.

At step four, the ALJ found that plaintiff had no past
relevant work.

T. 19.

At step five, the ALJ concluded that,

considering plaintiff’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national
economy that plaintiff could perform if she stopped her substance
abuse.
IV.

T. 20.

Accordingly, the ALJ found plaintiff not disabled.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
I.

The ALJ Failed to Develop the Record

Plaintiff argues that remand of this case is required because
the

ALJ

failed

to

adequately

plaintiff’s impairments.

develop

the

record

regarding

In particular, plaintiff contends that

the ALJ made no effort to obtain missing mental health records,
despite having been put on notice that they existed.

The Court

agrees that the ALJ failed to adequately inquire into whether
additional mental health records existed and could be obtained, and
that remand is therefore required.
4

“[I]t is the well-established rule in our circuit that the
social security ALJ, unlike a judge in a trial, must on behalf of
all claimants ... affirmatively develop the record in light of the
essentially

non-adversarial

nature

of

a

benefits

proceeding.”

Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal
quotation omitted).

This duty is present “[e]ven when a claimant

is represented by counsel.”

Id.

However, “where there are no

obvious gaps in the administrative record, and where the ALJ
already possesses a ‘complete medical history,’ the ALJ is under no
obligation to seek additional information....” Rosa v. Callahan,
168 F.3d 72, 79 n.5 (2d Cir. 1999) (quoting Perez v. Chater, 77
F.3d 41, 48 (2d Cir. 1996)).
Here, notes from plaintiff’s providers at the Council on
Addiction Recovery Services outpatient chemical dependency program
indicate that she was seeing a mental health counselor (see T. 27879).

Plaintiff testified before the ALJ that she “was seeing

mental health [sic]” but that her “insurance was only going to pay
for so many sessions.”

T. 37.

The ALJ was thus clearly put on

notice that plaintiff had seen a mental health counselor, yet no
records from any such provider were provided.

Accordingly, there

was an obvious gap in the record that the ALJ was required to take
reasonable steps to fill.

The ALJ did not do so, having apparently

neither requested that plaintiff obtain these records nor attempted
to obtain them himself.

5

The Commissioner contends that the ALJ did not err in failing
to seek out additional mental health records because plaintiff has
not shown that any particular records are missing.

However, “[i]t

is the ALJ’s duty to investigate and develop the facts and ...
arguments both for and against the granting of benefits....” Butts
v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (quotation marks and
citations omitted).

In other words, the ALJ is not required to act

only where it is crystal clear that additional medical records
exist - instead, he has an affirmative obligation to perform
additional investigation when, as is the case here, the record
reasonably suggests that the medical evidence is incomplete.
The Court also cannot conclude that the ALJ’s error was
harmless.

As plaintiff notes, the mental health records at issue

relate to a period during which she was sober, and are therefore
potentially directly relevant to her capacity to function in the
absence of substance abuse.

Under these circumstances, remand for

further development of the record is necessary.
II.

The Court Declines to Reach Plaintiff’s Other Arguments

Plaintiff also argues that the ALJ failed to appropriately
adduce testimony related to her mental impairments, improperly
concluded that drug and alcohol abuse were material factors in her
disability, and failed to assess a severe impairment of borderline
intellectual functioning.

Because the Court has determined that

remand for further development of the record is necessary, it need
not and does not reach these issues.

On remand and after the

required additional development of the record, the Commissioner

6

should

revisit

her

determinations

regarding

materiality

and

plaintiff’s intellectual functioning in light of the record as a
whole.
V.

Conclusion

For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings motion (Docket No. 7) is granted to the extent that
this

matter

is

remanded

to

the

Commissioner

for

further

administrative proceedings consistent with this Decision and Order.
The Commissioner’s motion for judgment on the pleadings (Docket
No. 10) is denied.

The Clerk of the Court is directed to close

this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

August 30, 2017
Rochester, New York.

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