Tillack v. Colvin
DECISION & ORDER: Plaintiff's Motion for Judgment on the Pleadings 10 is GRANTED and the Commissioner's Motion for Judgment on the Pleadings 14 is DENIED. This matter is REMANDED to the Commissioner for further administrative proceedings in accordance with this decision. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 10/11/2016. (ZS)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TERRENCE ARTHUR TILLACK,
Case # 15-CV-6306-FPG
DECISION & ORDER
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
Plaintiff Terrence Tillack (“Plaintiff”) brings this action to challenge the final decision of
the Acting Commissioner of Social Security (“the Commissioner”) denying Plaintiff’s
application for disability insurance benefits (“DIB”) under Title II of the Social Security Act
(“the Act”). ECF No. 1. The Court has jurisdiction over this matter under 42 U.S.C. § 405(g).
Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. ECF Nos. 10, 14. For the reasons stated below, Plaintiff’s
motion (ECF No. 10) is GRANTED, the Commissioner’s motion (ECF No. 14) is DENIED, and
this matter is REMANDED for further administrative proceedings.
On February 3, 2012, Plaintiff protectively filed an application for DIB under the Act.
ECF No. 10-1, at 1; ECF No. 14-1, at 2. Plaintiff alleges disability since October 10, 2010 due
to schizophrenia, a heart condition, overactive thyroid, high cholesterol, and high blood pressure.
Tr. 1 222. After Plaintiff’s application was denied at the initial level, a hearing was held before
Administrative Law Judge Brian Kane (“the ALJ”) on June 14, 2013. Tr. 55-73. On July 2,
References to “Tr.” are to the administrative record in this matter.
2013, the ALJ issued a decision finding that Plaintiff is not disabled within the meaning of the
Act. Tr. 83-92. However, in an order dated July 8, 2014, the Appeals Council granted Plaintiff’s
request for review and remanded the case back to the ALJ for further proceedings. Tr. 94-95.
Among other things, the Appeals Council directed the ALJ to complete the record by obtaining
additional evidence concerning Plaintiff’s schizophrenia. Tr. 95.
On December 5, 2014, Plaintiff appeared and testified at a second hearing before the
ALJ. Tr. 30-54. On December 19, 2014, the ALJ issued a second decision finding that Plaintiff
is not disabled within the meaning of the Act. Tr. 16-24. That decision became the final
decision of the Commissioner when the Appeals Council denied Plaintiff’s request for review on
March 25, 2015. Tr. 1-3. Plaintiff then filed this civil action. ECF No. 1.
The Act defines “disability” as “the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d). Social Security Administration (“SSA”) regulations
outline the five-step process used to determine whether a claimant is “disabled” under the Act.
20 C.F.R. § 404.1520.
First, the ALJ must determine whether the claimant is engaged in any substantial gainful
work activity. 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. Id. If not, the ALJ
proceeds to step two and determines whether the claimant has a “severe” impairment or
combination of impairments. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe
impairment or combination of impairments, the claimant is not disabled. Id. If the claimant
does, the analysis proceeds to step three.
At step three, the ALJ must determine whether the claimant has an impairment (or
combination of impairments) that meets or medically equals one of the conditions listed in 20
C.F.R. Part 404, Subpart P, Appendix 1 of the regulations (“the Listings”). If the impairment
does meet or equal a condition in the Listings and the durational requirement (20 C.F.R. §
404.1509) is satisfied, then the claimant is disabled. 20 C.F.R. § 404.1520(d). If it does not, the
ALJ will make a finding regarding the claimant’s residual functional capacity (“RFC”), which is
an assessment of what the claimant can still do despite his or her limitations. 20 C.F.R. §
404.1545(a)(1). The RFC is then used at steps four and five. 20 C.F.R. § 404.1520(e).
The fourth inquiry is whether, given the claimant’s RFC, the claimant can still perform
his or her past relevant work. 20 C.F.R. § 404.1520(f). If the claimant can perform his or her
past relevant work, the claimant is not disabled. Id. If he or she cannot, the ALJ proceeds to step
At the fifth and final step, the ALJ must consider the claimant’s RFC as well as his or her
age, education, and work experience to determine whether the claimant can make an adjustment
to other work for which there are a significant number of jobs in the national economy. 20
C.F.R. § 404.1520(g). If the claimant can make an adjustment to other work, then the claimant is
not disabled. Id. If the claimant cannot make that adjustment, then the claimant is disabled. Id.
The burden of proving the first four elements is on the claimant, and the burden of
proving the fifth element is on the Commissioner. Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir.
1996); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
District Court Review
District Court review of the Commissioner’s decision is not de novo.
Richardson v. Barnhart, 443 F. Supp. 2d 411, 416 (W.D.N.Y. 2006) (quoting Melville v. Apfel,
198 F.3d 45, 52 (2d Cir. 1999)). The Commissioner’s decision may only be set aside if it is not
supported by “substantial evidence” or is the product of legal error. See, e.g., Miller v. Colvin,
85 F. Supp. 3d 742, 749 (W.D.N.Y. 2015); Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)
(quoting Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)). Substantial evidence means “more
than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Burgess, 537 F.3d at 127 (quoting Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004)) (internal quotation marks omitted).
The ALJ’s Decision
In this case, the ALJ analyzed Plaintiff’s claim for benefits under the process described
above. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since December 10, 2010, his alleged onset date. Tr. 18. At step two, the ALJ found that
Plaintiff has the following severe impairment: “residual schizophrenia.” Id. At step three, the
ALJ found that Plaintiff does not have an impairment or combination of impairments that meets
or medically equals a Listings impairment. Tr. 19-20.
The ALJ then determined Plaintiff’s RFC. Tr. 20-23. Specifically, the ALJ found that
Plaintiff could “perform the full range of work at all exertional levels but with the following
nonexertional limitations: [Plaintiff] can only have occasional interactions with coworkers and
the general public.” Tr. 20.
At step four, the ALJ found that Plaintiff’s RFC allows him to perform his past relevant
work as a stock clerk and batch processor. Tr. 23-24. Accordingly, the ALJ found that Plaintiff
is not disabled under the Act. Tr. 24.
Plaintiff’s Challenge to the ALJ’s Decision
Plaintiff argues that remand is warranted because the ALJ failed to fully develop the
record. ECF No. 10-1, at 26-28. 2 The Court agrees.
In light of the “essentially non-adversarial nature of a benefits proceeding,” the
Commissioner has an affirmative duty to develop the record in disability cases. Pratts v. Chater,
94 F.3d 34, 37 (2d Cir. 1996). Specifically, the Commissioner must develop a claimant’s
“complete medical history” for at least the 12 months preceding the month in which the claimant
filed his or her application. 20 C.F.R. § 404.1512(d). In doing so, the Commissioner must
“make every reasonable effort” to help the claimant get medical reports from his or her own
medical sources so long as the claimant has permitted the Commissioner to request such reports.
Id. This affirmative duty to develop the record exists even where the claimant is represented by
counsel. Pratts, 94 F.3d at 37. If the Commissioner fails to fulfill its duty, remand is warranted.
Id. at 39. On the other hand, where there are no “obvious gaps” in the record and the ALJ
already possesses a “complete medical history,” the Commissioner is not obligated to seek
additional evidence. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).
Here, the Department of Veterans Affairs (“VA”) issued a decision on May 16, 2012
regarding Plaintiff’s application for Dependents’ Educational Assistance. Tr. 246-255. The VA
found that Plaintiff was entitled to a 100% disability rating based on his “Individual
Unemployability.” Tr. 249. In its decision, the VA specifically listed the evidence that it relied
upon, including a February 9, 2012 statement from Plaintiff’s treating psychiatrist Thundathil
Abraham, M.D. (“Dr. Abraham”) and a VA examination dated April 26, 2012. Tr. 254-55.
Although the VA decision itself is part of the record, the statement from Dr. Abraham and the
VA examination are not.
Plaintiff also advances other challenges to the ALJ’s decision. See ECF No. 10-1. However, the Court
declines to reach these arguments because remand is warranted solely on the basis of the ALJ’s failure to develop
The ALJ expressly acknowledged that this evidence was missing from the record. Tr. 23
(“Although supporting medical evidence is cited in the award letter it was not included in full.”).
However, instead of fulfilling his affirmative duty to develop Plaintiff’s complete medical
history, the ALJ accorded “little weight” to the VA rating and found that it had “very limited
evidentiary value because of the lack of supporting evidence.” Tr. 23. In other words, the ALJ
used a gap in the record to Plaintiff’s detriment.
It is important to note that the salient issue here is not how the ALJ treated the VA’s
decision itself, but how the ALJ treated the evidence that supported the VA’s decision. The ALJ
correctly noted that the VA rating was based on different standards of disability and
employability. Tr. 23. Although the ALJ was not bound by the VA’s determination, it was
improper for him to ignore the evidence that the VA relied upon. 20 C.F.R. § 404.1512(d).
Because the ALJ failed to develop Plaintiff’s complete medical history despite an obvious gap in
the record, remand is warranted.
For the reasons stated above, Plaintiff’s Motion for Judgment on the Pleadings (ECF No.
10) is GRANTED and the Commissioner’s Motion for Judgment on the Pleadings (ECF No. 14)
This matter is REMANDED to the Commissioner for further administrative
proceedings in accordance with this decision. See 42 U.S.C. § 405(g). The Clerk of Court is
directed to enter judgment and close this case.
IT IS SO ORDERED.
Dated: October 11, 2016
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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