Wolf v. Colvin
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,
No. 1:15-CV-00036 (MAT)
DECISION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
(“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
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
administrative proceedings consistent with this Decision and Order,
and the Commissioner’s motion is denied.
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
July 19, 2012, which was denied.
Administrative Transcript (“T.”)
At plaintiff’s request, a hearing was held before
administrative law judge (“ALJ”) Robert C. Dorf on July 29, 2013.
On August 27, 2013, ALJ Dorf issued a decision in which
he found that plaintiff was not disabled as defined in the act.
The Appeals Council denied plaintiff’s request for
review, rendering the ALJ’s determination the Commissioner’s final
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.
At step two, the ALJ found
disorder, NOS, and substance abuse disorder.2
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)).
Advancement Act . . .which amended the Act by providing that [a]n
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
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)
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
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,
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
numerical production daily quota work.
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.”
At step four, the ALJ found that plaintiff had no past
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
Accordingly, the ALJ found plaintiff not disabled.
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).
The ALJ Failed to Develop the Record
Plaintiff argues that remand of this case is required because
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.
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.
“[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
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal
This duty is present “[e]ven when a claimant
is represented by counsel.”
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.”
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.
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.
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.
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
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
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.
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
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
plaintiff’s intellectual functioning in light of the record as a
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings motion (Docket No. 7) is granted to the extent that
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
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
August 30, 2017
Rochester, New York.
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