Wallace v. Colvin

Filing 18

DECISION AND ORDER granting 9 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; and denying 11 Comm issioner's Motion for Judgment on the Pleadings. In light of the fact that Plaintiffs application was initially filed in October 2012 (more than five years ago), on remand, the administrative proceedings shall be conducted on an expedited basis, to be completed no later than December 31, 2018. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/30/18. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

NADINE D. WALLACE,
Plaintiff,
-vs-

No. 1:16-CV-00416 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented

by

counsel,

plaintiff

Nadine

D.

Wallace

(“Plaintiff”) brings this action pursuant to Titles II and XVI of
the Social Security Act (the “Act”), seeking review of the final
decision of defendant the Acting Commissioner of Social Security
(the “Commissioner” or “Defendant”) denying her applications for
supplemental

security

benefits (“DIB”).

income

(“SSI”)

and

disability

insurance

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.

II.

Procedural History
Plaintiff protectively filed concurrent applications for SSI

and DIB on October 30, 2012, alleging disability as of August 6,
2012 due to a neuroendocrine tumor.

Administrative Transcript

(“T.”) 41. Plaintiff’s applications were initially denied.

T. 58-

63.

before

At

Plaintiff’s

request,

a

hearing

was

held

administrative law judge (“ALJ”) William M. Weir on June 16, 2014,
at which Plaintiff appeared without a representative.

T. 64-65,

22-39. On October 9, 2014, the ALJ issued an unfavorable decision.
T. 10-21. On April 19, 2016, the Appeals Council denied Plaintiff’s
request

for

review,

making

Commissioner’s final decision.

the

ALJ’s

T. 1-6.

determination

the

This action followed.

III. The ALJ’s Decision
In determining whether Plaintiff was disabled, the ALJ applied
the

five-step

sequential

evaluation

set

forth

in

20

C.F.R.

§§ 404.1520, 416.920. Initially, the ALJ determined that Plaintiff
met the insured status requirements of the Act through December 31,
2017.

T. 15. At step one of the five-step sequential evaluation,

the ALJ determined that Plaintiff had not engaged in substantial
gainful activity since August 6, 2012, the alleged onset date. Id.
At step two, the ALJ found that Plaintiff suffered from the
medically determinable impairment of ovarian tumor with total
abdominal hysterectomy and bilateral salpingo-oophorectomy, status
post chemotherapy.

T. 15.

The ALJ further concluded that this

2

impairment had not significantly limited Plaintiff’s ability to
perform basic work-related activities for 12 consecutive months,
and that it was therefore not severe.

T. 15-18. Accordingly, the

ALJ ended his inquiry and found that Plaintiff was not disabled as
defined in the Act.
IV.

T. 18.

Discussion
A.
A

Scope of Review
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) (internal quotation
omitted).

Although the reviewing court must scrutinize the whole

record and examine evidence that supports or detracts from both
sides, Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted), “[i]f there is substantial evidence to support the
[Commissioner’s] determination, it must be upheld.” Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “The deferential standard
of

review

for

substantial

evidence

Commissioner’s conclusions of law.”
172, 179 (2d Cir. 2003).

3

does

not

apply

to

the

Byam v. Barnhart, 336 F.3d

Here, Plaintiff contends that remand of this matter for
further administrative proceedings is required because (1) the ALJ
improperly concluded that she did not have a severe impairment,
(2) the ALJ failed to properly develop the record, (3) the ALJ
failed to comply with the Hearings, Appeals, and Litigation Law
Manual (the “HALLEX”) in conducting the hearing, and (4) the ALJ
failed to properly evaluate Plaintiff’s credibility.

For the

reasons discussed below, the Court finds that the ALJ’s conclusion
that Plaintiff’s impairments were non-severe was based on an
incomplete record and not supported by substantial evidence and
that remand of this matter is therefore appropriate.
B.

Step Two Determination

The Court addresses Plaintiff’s first two arguments (that the
ALJ erred in concluding that she did not have a severe impairment
and that the ALJ failed to properly develop the record) together.
The

Court

agrees

with

Plaintiff

that

the

ALJ

failed

to

appropriately update Plaintiff’s medical records and failed to
properly investigate Plaintiff’s mental impairments.

The Court

further finds that the ALJ’s conclusion that Plaintiff did not
suffer from a severe impairment was based on an incomplete record
and not supported by substantial evidence.
“Because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.”

Perez v. Chater, 77 F.3d 41,

47 (2d Cir. 1996) (internal citation omitted).
4

“This duty arises

from

the

Commissioner’s

regulatory

obligations

to

develop

a

complete medical record before making a disability determination,”
Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996), and requires the
ALJ to take affirmative steps “where there are deficiencies in the
record,” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).

“[W]hen

the claimant is unrepresented,” as Plaintiff was at the hearing in
this case, “the ALJ is under a heightened duty to scrupulously and
conscientiously probe into, inquire of, and explore for all the
relevant facts.”

Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)

(internal quotation omitted).
In this case, the ALJ’s failure to develop the record was
twofold.

First, with respect to Plaintiff’s physical impairments,

the ALJ concluded that Plaintiff’s ovarian tumor and associated
chemotherapy treatment had not met the durational requirements of
the Act.

The Act provides that, in order for a claimant to be

found disabled, she must have a medically determinable impairment
that has lasted for at least twelve consecutive months. See Marine
v. Barnhart,

No. 00 CV 9392 (GBD), 2003 WL 22434094, at *2

(S.D.N.Y. Oct. 24, 2003). Here, the ALJ concluded that Plaintiff’s
ovarian tumor did not meet this requirement because “from the time
[Plaintiff] was precluded from working by her symptoms before the
diagnosis was made, August 6, 2012 to the last medical evidence of
record from Roswell Park, May 14, 2013 less than 12 months had gone
by.”

T. 17.

However, the record shows that Plaintiff expressly

informed that ALJ that her medical records from Roswell Park were
5

incomplete.

In particular, when the ALJ asked Plaintiff if the

record was completed, she informed him that it did not have her
most recent records and that she was still being seen every three
months at Roswell Park.

T. 25-26.

The ALJ asked Plaintiff if her

“status” had “changed” or if she’d had “any active disease or any
adverse findings” and she informed him that she was having issues
with fainting and that her physicians had told her it was related
to her chemotherapy.

T. 26.

Plaintiff further stated that she was

being prescribed pain medication for bone aches.

T. 27.

However,

despite these express statements by Plaintiff alerting the ALJ that
the evidence of record was incomplete and that she was still
receiving treatment for the side effects of her chemotherapy, the
ALJ apparently made no effort to obtain additional records from
Roswell Park.

The ALJ then compounded his error by using the

absence of such treatment records to conclude that Plaintiff’s
ovarian tumor did not meet the Act’s duration requirements.

This

conclusion, which was based on an incomplete record, was not
supported by substantial evidence.
The Court notes that the ALJ’s conclusions also contain
misstatements of Plaintiff’s testimony.

The ALJ stated that

“claimant testified that she has never been told by a doctor that
she is unable to work.”

T. 18.

This is incorrect.

A review of

the hearing transcript shows that, to the contrary, Plaintiff
testified that her physician did tell her she was unable to work
“when [she] went through chemo.”

6

T. 32.

While Plaintiff did

additionally state that no doctor had told her she was unable to
work recently, the ALJ made no effort to inquire further. As such,
it is wholly unclear on the current record whether Plaintiff simply
had not recently asked her doctor whether she was able to work or
if her doctor’s opinion had changed.

The ALJ’s failure to further

develop the record with respect to the opinions of Plaintiff’s
physicians

was

an

additional

error,

particularly

where

no

consultative examination had been performed.
The ALJ also failed to develop his duty to develop the record
with respect to Plaintiff’s potential mental impairments.

The

record in this case shows that Plaintiff suffered from anxiety, to
the point that she used marijuana to self-medicate.

Plaintiff’s

doctor assessed her with anxiety, instructed her to stop using
marijuana, and prescribed her Ativan.

T. 475-76.

Plaintiff also

reported in her appeal of the initial denial of her applications
that she was suffering from “depression (mood swings).”

T. 159.

Plaintiff further reported that she was receiving treatment from
Child and Family Services.

T. 160.

However, the ALJ failed to

perform any inquiry whatsoever into Plaintiff’s mental health.

He

did not ask Plaintiff about her mental health at the hearing, nor
did he seek or obtain any records from Child and Family Services,
nor

did

he

Plaintiff.

obtain
In

a

his

consultative
decision,

the

psychiatric
ALJ

did

examination
not

of

acknowledge

Plaintiff’s anxiety as a medically determinable impairment or
discuss it in any way.

7

The

ALJ’s

failure

to

perform

even

the

most

minimal

investigation into Plaintiff’s mental health was error.

“When

circumstances point to the probable existence of probative and
necessary evidence, which has not been furnished by the claimant,
the failure of an ALJ to ask further questions, request additional
records, or contact treating sources amount to neglect of the ALJ's
duty to develop the record. . . . Moreover, if the information
needed to make a determination is not readily available from
treating source records, and a clarification cannot be obtained,
the

ALJ

is

obligated

to

obtain

a

consultative

examination.”

Chandler v. Comm’r of Soc. Sec., No. 11-CV-152 DRH, 2012 WL
1935182,

at

*9

(N.D.N.Y.

May

29,

2012)

(internal

quotation

omitted). Here, the ALJ took no steps to develop the record
regarding Plaintiff’s mental health, resulting in a step two
determination based on an incomplete record and unsupported by
substantial evidence.
For the foregoing reasons, the Court finds that remand of this
matter for additional administrative proceedings is necessary.
remand,

the

ALJ

is

instructed

to

fully

develop

the

On

record,

including making efforts to obtain updated records from Roswell
Park and to obtain records from Child and Family Services.

If

necessary, the ALJ should obtain a consultative examination of
Plaintiff with respect to her mental health.
C.

Plaintiff’s Other Arguments

Plaintiff has also argued that the ALJ failed to comply with
the HALLEX and that the ALJ failed to properly evaluate her
8

credibility.

Having

determined

that

remand

for

additional

development of the record is necessary, the Court need not and does
not reach these arguments.
V.

Conclusion
For the foregoing reasons, Plaintiff’s motion for judgment on

the pleadings (Docket No. 9) is granted to the extent that this
matter is remanded to the Commissioner for further administrative
proceedings consistent with this Decision and Order. In light of
the fact that Plaintiff’s application was initially filed in
October

2012

(more

than

five

years

ago),

on

remand,

the

administrative proceedings shall be conducted on an expedited
basis, to be completed no later than December 31, 2018.

The

Commissioner’s motion for judgment on the pleadings (Docket No. 11)
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:

May 30, 2018
Rochester, New York.

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