Bantle v. Colvin
DECISION & ORDER The Commissioner's motion for judgment on the pleadings 15 is denied, and Bantle's motion for judgment on the pleadings 13 is granted to the extent that the Commissioner's decision is reversed, and this case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further administrative proceedings consistent with this decision. Signed by Hon. Marian W. Payson on 2/24/2017. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION & ORDER
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Plaintiff Rachel Bantle (“Bantle”) brings this action pursuant to Section 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying her application for
Supplemental Security Income Benefits (“SSI”). Pursuant to 28 U.S.C. § 636(c), the parties
have consented to the disposition of this case by a United States magistrate judge. (Docket
Currently before the Court are the parties’ motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket ## 13, 15). For the
reasons set forth below, I hereby vacate the decision of the Commissioner and remand this claim
for further administrative proceedings consistent with this decision.
Bantle protectively filed for SSI on July 13, 2012, alleging disability beginning on
April 26, 2012, due to pelvic pain syndrome, endometriosis, interstitial cystitis, myocardosis,
anxiety, panic attacks, depression, arthritis, cystic ovarian disease, and asthma. (Tr. 29, 127,
146).1 On October 23, 2012, the Social Security Administration denied Bantle’s claims for
benefits, finding that she was not disabled.2 (Tr. 55-69). Bantle requested and was granted a
hearing before Administrative Law Judge David J. Begley (the “ALJ”). (Tr. 76-78). The ALJ
conducted a hearing on February 19, 2014. (Tr. 26-54). In a decision dated June 2, 2014, the
ALJ found that Bantle was not disabled and was not entitled to benefits. (Tr. 11-21).
On July 22, 2015, the Appeals Council denied Bantle’s request for review of the
ALJ’s decision. (Tr. 1-6). In the denial, the Appeals Council considered additional evidence
submitted by Bantle that primarily predated the ALJ’s determination but was not submitted until
after the ALJ had rendered his decision. (Tr. 1-2, 5, 886-910, 911-81). The additional evidence
consisted of records from Wayne Behavioral Health Network, including treatment notes authored
by Bantle’s licensed clinical social worker, Patricia Nelson-Struck. (Tr. 911-81). The additional
evidence also included medical records from Strong Memorial Hospital. (Tr. 886-910). The
Appeals Council concluded that this additional evidence did not “provide a basis for changing
the [ALJ’s] decision.” (Tr. 2).
Bantle commenced this action on August 19, 2015, seeking review of the
Commissioner’s decision. (Docket # 1).
The administrative transcript shall be referred to as “Tr. __.”
Bantle’s previous request for benefits was denied on April 26, 2012. (Tr. 158).
Medical Opinions of Record
Jennifer Campbell, MD
On October 18, 2010, Jennifer Campbell (“Campbell”), MD, Bantle’s internist,
completed an employability assessment relating to Bantle, whom she had been treating for
eighteen months. (Tr. 830-31). She diagnosed Bantle with pelvic pain, endometriosis,
depression, anxiety, interstitial cystitis, and mild asthma. (Id.). Campbell opined that Bantle had
no evidence of mental limitations, but was moderately limited in her ability to perform lifting,
carrying, pushing, pulling, and bending. (Id.).
Campbell completed another employability assessment on December 20, 2010.
(Tr. 832-33). She indicated that Bantle suffered from pelvic pain, endometriosis, depression,
anxiety, asthma, and supraventricular tachycardia. (Id.). Campbell assessed no physical
limitations. (Id.). According to Campbell, Bantle had been receiving mental health treatment at
Wayne County Mental Health for the previous three to six months. (Id.). She opined that Bantle
was very limited in her ability to maintain attention and concentration, interact appropriately
with others, maintain socially appropriate behavior without exhibiting behavior extremes, and
function in a work setting at a consistent pace. (Id.). She also opined that Bantle was
moderately limited in her ability to understand, remember and carry out instructions, and make
simple decisions. (Id.). Campbell opined that Bantle’s limitations were expected to last
approximately four to six months. (Id.).
On January 17, 2011, Campbell completed another employability assessment
form. (Tr. 834-35). She opined that Campbell was very limited in her ability to lift and carry
objects and moderately limited in her ability to stand, push, pull, bend, see, hear, speak, use her
hands, and climb. (Id.). With respect to Bantle’s mental limitations, Campbell assessed that she
was moderately limited in her ability to maintain attention and concentration and function in a
work setting at a consistent pace. (Id.). She also opined that Bantle was unable to work and
referred her for mental health treatment. (Id.).
Campbell completed another employability assessment form on June 29, 2011.
(Tr. 836-37). She opined that Campbell was moderately limited in her ability to stand, sit, lift,
carry, push, pull, bend, and climb. (Id.). With respect to Bantle’s mental limitations, Campbell
assessed that she was moderately limited in her ability to interact appropriately with others,
maintain socially appropriate behavior without exhibiting behavior extremes, and function in a
work setting at a consistent pace. (Id.). She also opined that Bantle was unable to engage in
prolonged standing, pushing, pulling, and climbing, and was unable to lift objects greater than
ten pounds. (Id.).
On February 13, 2012, Campbell again completed an employability assessment
form. (Tr. 838-39). She diagnosed Bantle with endometriosis, chronic pelvic pain syndrome,
interstitial cystitis, chronic back pain, rheumatoid arthritis, supraventricular tachycardia,
palpations, extra valve in heart, panic and anxiety disorder, and “sometimes” depression. (Id.).
She assessed no physical limitations and opined that Bantle was moderately limited in her ability
to interact appropriately with others. (Id.).
Christine Ransom, PhD
On September 21, 2012, state examiner Christine Ransom (“Ransom”), PhD,
conducted a consultative psychiatric evaluation of Bantle. (Tr. 508-12). Bantle reported that she
was twenty-four years old and had been driven to the examination by her mother. (Id.). She
reported that she lived with her four-year-old child. (Id.). Bantle reported that she had
completed high school in a regular educational setting. (Id.). She reported that she had been
employed as an administrative assistant for approximately one year and had stopped working in
2010 due to mental health difficulties. (Id.).
According to Bantle, she was currently receiving mental health treatment,
including medication and counseling, at Wayne County Mental Health for PTSD, panic disorder,
and depression. (Id.). Bantle reportedly experienced and observed sexual molestation by her
cousins when she was growing up and in high school began having panic attacks, characterized
by palpitations, sweating, breathing difficulties, trembling, and fear. (Id.). Bantle reported that
she currently suffered from nightmares, flashbacks, intrusive thoughts, and anger. (Id.). She
also had sleep difficulties. (Id.). Bantle indicated that she was experiencing decreased appetite,
frequent crying spells, irritability, low energy, preoccupation with problems, and difficulty
Bantle reported that she socialized with a few friends and with her mother. (Id.).
Bantle spent most of her day resting and caring for her son, although at times she had to crawl to
do so. (Id.). Bantle denied generalized anxiety, manic symptomatology, thought disorder,
cognitive symptoms, and deficits. (Id.).
Bantle reported that pain made it difficult for her to attend to personal hygiene
and household chores, including cooking, laundry, and shopping. (Id.). According to Bantle, her
mother sometimes assisted her with these tasks and with managing her money because she had
difficulty focusing. (Id.). Bantle reported that she had a driver’s license, but did not have a car.
(Id.). She was able to care for her child. (Id.).
Upon examination, Ransom noted that Bantle appeared casually dressed, although
unkempt and poorly groomed. (Id.). She noted that Bantle’s motor behavior was lethargic and
her eye contact was downcast. (Id.). Ransom opined that Bantle had slow, halting speech with a
clear voice that was moderately to markedly dysphoric, irritable, labile, intense, and anxious, and
adequate language, coherent and goal-directed thought processes, moderately to markedly
dysphoric, irritable, labile, intense, and anxious affect and correlating mood, clear sensorium, full
orientation, good insight, good judgment, and average intellectual functioning. (Id.). Ransom
noted that Bantle’s attention and concentration appeared to be mildly impaired due to emotional
disturbance and anxiety. (Id.). According to Ransom, Bantle could count backwards from ten
and complete two out of three simple calculations, but had difficulty completing the serial threes.
(Id.). Bantle’s immediate memory skills appeared mildly impaired due to emotional disturbance
and anxiety. (Id.). According to Ransom, Bantle could recall one out of three objects
immediately, one out of three objects after delay, and could complete three digits forward and
two digits backward. (Id.).
According to Ransom, Bantle could follow and understand simple directions and
instructions, perform simple tasks independently, maintain attention and concentration for simple
tasks, maintain a simple regular schedule and learn simple new tasks, but would have moderate
to marked difficulty performing complex tasks, relating adequately with others, and
appropriately dealing with stress. (Id.). According to Ransom, her difficulties stemmed from
PTSD, currently moderate to marked, major depressive order, currently moderate to marked, and
panic disorder with agoraphobia, currently moderate to marked. (Id.). Ransom opined that the
results of the evaluation were consistent with Bantle’s allegations. (Id.).
Harbinder Toor, MD
On September 21, 2012, state examiner Harbinder Toor (“Toor”), MD, conducted
a consultative internal medicine examination. (Tr. 513-18). Bantle reported suffering from
endometriosis, interstitial cystitis, bleeding cyst, chronic pelvic and abdominal syndrome,
chronic lower back pain, possible rheumatoid arthritis, supraventricular tachycardia, depression,
panic attacks, anxiety attacks, asthma, and a history of seizures. (Id.).
Bantle reported that she cooked twice a week, cleaned the house twice a week,
and was able to do laundry, shop, and care for her child. (Id.). She showered and dressed daily
with assistance. (Id.). She reportedly enjoyed watching television and light reading. (Id.).
Upon examination, Toor noted that Bantle had an abnormal gait and appeared to
be in moderate pain. (Id.). She declined to attempt the heel and toe walk or squatting. (Id.).
Bantle needed assistance to change for the examination and had difficulty getting on and off the
examination table and rising from the chair. (Id.).
Toor noted that Bantle’s cervical spine showed forward flexion to twenty degrees,
lateral flexion and rotation to thirty degrees, and no extension. (Id.). Toor found that Bantle’s
lumbar flexion was limited to twenty degrees and her lateral flexion and rotation were limited to
twenty degrees bilaterally. (Id.). The straight leg raise was positive at twenty degrees bilaterally
in both the sitting and supine positions. (Id.). Toor found full range of motion in the shoulders,
elbows, forearms, and wrists, with tenderness in the wrists bilaterally, but more on the right.
(Id.). He found full movement in the left knee, and the right knee flexion and extension limited
to 140 degrees with pain and tenderness. (Id.). Similarly, he assessed full movement in the left
ankle, but plantar flexion limited to twenty degrees, and dorsiflexion limited to ten degrees in the
right ankle with tenderness. (Id.). Toor assessed that Bantle’s hand and finger dexterity was
intact in the left hand, but not the right hand. (Id.). Bantle’s grip strength was four out of five in
the right hand and five out of five in the left hand. (Id.). He noted mild difficulty grasping,
holding, writing, tying shoes, zipping a zipper, buttoning a button, manipulating a coin, and
holding objects with the right hand. (Id.).
Toor opined that Bantle had moderate to severe limitations standing, walking,
bending, and lifting, and that pain interfered with her balance. (Id.). He also assessed moderate
limitations with sitting for a long time. (Id.). Toor indicated that Bantle suffered from mild
limitations grasping, holding, writing, tying shoelaces, zipping a zipper, buttoning a button,
manipulating a coin, and holding objects. (Id.). According to Toor, pain interfered with Bantle’s
physical routine, and she had moderate limitations during exertion due to supraventricular
tachycardia, causing associated chest pain and shortness of breath. (Id.). Toor also indicated
that Bantle should avoid irritants or other factors that precipitate her asthma. (Id.).
R. Noble, Psychology
M. Parr, the disability analyst evaluating Bantle’s claim for benefits, requested
medical advice from non-examining agency medical consultant Dr. R. Noble (“Noble”).
(Tr. 522-24). Parr noted a previous determination of non-disability dated April 26, 2012, and
requested Noble to review the updated consultative examination and medical records to
determine whether the previous determination should be reconsidered. (Id.). On October 11,
2012, Noble responded, indicating that he had reviewed Ransom’s report and Bantle’s treatment
records from Wayne Behavioral Health from February through July 2012. (Tr. 59-60). Noble
also reviewed a consultative examination conducted in March 2012 in connection with Bantle’s
previous claim for benefits. (Id.). According to Noble, treatment records from June 22, 2012,
suggested that Bantle was unable to work, although progress notes from July 2012 indicated
improvement with medication. (Id.). He requested that the analyst attempt to obtain updated
information from the treating psychiatrist regarding Bantle’s current mental status and the extent
to which the note suggesting inability to work was based upon psychiatric symptoms as opposed
to medical and parental stressors, as well as the expected duration of Bantle’s inability to work.
(Id.). Although a request for further information was apparently made to Wayne Behavioral
Health on October 12, 2012 (Tr. 59, 619), the analyst was evidently unable to obtain additional
information (Tr. 65-66, 534-35).
On October 22, 2012, Noble completed a Psychiatric Review Technique.
(Tr. 60-61). Noble concluded that Bantle’s mental impairments did not meet or equal a listed
impairment. (Id.). According to Noble, Bantle suffered from mild limitations in her activities of
daily living, and moderate limitations in her ability to maintain social functioning and to
maintain concentration, persistence or pace. (Id.). According to Noble, Bantle had not suffered
from repeated episodes of deterioration. (Id.). Noble completed a mental Residual Functional
Capacity (“RFC”) assessment. (Tr. 63-66). Noble opined that Bantle suffered from moderate
limitations in her ability to understand, remember and carry out detailed instructions, maintain
attention and concentration for extended periods, perform activities within a schedule, maintain
regular attendance and be punctual within customary tolerances, complete a normal workday and
workweek without interruptions from psychologically-based symptoms, perform at a consistent
pace without an unreasonable number and length of rest periods, interact appropriately with the
general public, accept instructions and respond appropriately to criticism from supervisors, get
along with coworkers or peers without distracting them or exhibiting behavioral extremes,
respond appropriately to changes in a work setting, and travel in unfamiliar places or use public
transportation. (Id.). Noble opined that Bantle was mentally capable of performing simple
work-related tasks. (Id.).
I. Seok, MD
On September 26, 2012, I. Seok (“Seok”), MD, a non-examining agency medical
consultant, completed a physical RFC assessment of Bantle’s physical ability to perform
work-related tasks. (Tr. 62-63). Seok assessed that Bantle could occasionally3 lift ten pounds
and frequently4 lift less than ten pounds. (Id.). Seok also assessed that Bantle was capable of
standing or walking up to two hours and sitting up to six hours of an eight-hour workday. (Id.).
Seok opined that Bantle was unlimited in her ability to push and pull and was limited to frequent
climbing of ramps, stairs, ladders, ropes and scaffolds, and frequent postural limitations,
including balancing, stooping, kneeling, crouching and crawling. (Id.).
Ralph Madeb, MD
On January 9, 2013, Ralph Madeb (“Madeb”), MD, completed a Interstitial
Cystitis RFC Questionnaire. (Tr. 660-64). Madeb indicated that he had provided treatment to
Bantle for interstitial cystitis between May 2011 and March 2012. (Id.). According to Madeb,
Bantle’s condition caused her to experience urinary frequency, bladder and pelvic pain, and
urinary urgency. (Id.). He opined that Bantle’s impairment had not lasted and was not expected
to last in excess of twelve months and that her anxiety contributed to the severity of her
symptoms and functional limitations. (Id.). He indicated that Bantle would rarely5 experience
symptoms severe enough to interfere with the attention and concentration needed to perform
simple tasks, although she would need to urinate approximately every two hours. (Id.). He
opined that Bantle would need ready access to a restroom and would need to take unscheduled
restroom breaks during the workday, but would be able to provide approximately ten to fifteen
minutes notice of the need for a break. (Id.).
“Occasionally” meant cumulatively one-third or less of an eight-hour workday. (Id.).
“Frequently” meant cumulatively more than one-third and up to two-thirds of an eight-hour workday.
“Rarely” meant one to five percent of an eight-hour workday. (Id.).
Pat Nelson, LCSW
Pat Nelson, (“Nelson”), LCSW, Bantle’s treating therapist at Wayne Behavioral
Health, completed a mental RFC evaluation on January 17, 2013. (Tr. 700-03). Nelson
indicated that Bantle had undergone an intake evaluation on February 7, 2012, had been admitted
for outpatient treatment on February 28, 2012, and her last appointment had been on January 17,
2013, the day the form was completed. (Id.). Nelson assessed that Bantle suffered from
generalized anxiety disorder and panic disorder without agoraphobia. (Id.).
Nelson opined that Bantle had a “fair” 6 ability to comprehend and carry out
simple instructions, respond appropriately to supervision, function independently on a job,
exercise appropriate judgment, abide by occupational rules and regulations, make simple
work-related decisions, and be aware of normal hazards and make necessary adjustments to
avoid those hazards. (Id.). Nelson further opined that Bantle had a “poor” 7 ability to remember
work procedures, remember detailed instructions, respond appropriately to coworkers, complete
a normal workday on a sustained basis, concentrate and attend to a task over an eight-hour
period, maintain social functioning, and tolerate customary work pressures in a work setting,
including production requirements and demands.
According to Nelson, Bantle suffered from chronic physical pain and anxiety and
depression that affected her judgment, social functioning, and overall ability to work. (Id.).
Nelson also opined that Bantle reacted poorly to stress and her condition was likely to deteriorate
in stressful situations. (Id.). In Nelson’s opinion, Bantle was unable to work at the time of the
“Fair” meant “[t]he ability to function in this area is seriously limited and will result in periods of
unsatisfactory performance at unpredictable times.” (Id.).
“Poor” meant no useful ability to function in this area. (Id.).
On February 20, 2014, Nelson completed a form indicating that she continued to
assess the same limitations and held the same opinions reflected in her RFC assessment dated
January 17, 2013. (Tr. 879).
Standard of Review
This Court’s scope of review is limited to whether the Commissioner’s
determination is supported by substantial evidence in the record and whether the Commissioner
applied the correct legal standards. See Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004)
(“[i]n reviewing a final decision of the Commissioner, a district court must determine whether
the correct legal standards were applied and whether substantial evidence supports the
decision”), reh’g granted in part and denied in part, 416 F.3d 101 (2d Cir. 2005); see also
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (“it is not our function to determine de novo
whether plaintiff is disabled[;] . . . [r]ather, we must determine whether the Commissioner’s
conclusions are supported by substantial evidence in the record as a whole or are based on an
erroneous legal standard”) (internal citation and quotation omitted). Pursuant to 42 U.S.C.
§ 405(g), a district court reviewing the Commissioner’s determination to deny disability benefits
is directed to accept the Commissioner’s findings of fact unless they are not supported by
“substantial evidence.” See 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner . . . as to
any fact, if supported by substantial evidence, shall be conclusive”). Substantial evidence is
defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal quotation omitted).
To determine whether substantial evidence exists in the record, the court must
consider the record as a whole, examining the evidence submitted by both sides, “because an
analysis of the substantiality of the evidence must also include that which detracts from its
weight.” Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). To the extent
they are supported by substantial evidence, the Commissioner’s findings of fact must be
sustained “even where substantial evidence may support the claimant’s position and despite the
fact that the [c]ourt, had it heard the evidence de novo, might have found otherwise.” Matejka v.
Barnhart, 386 F. Supp. 2d 198, 204 (W.D.N.Y. 2005) (citing Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983)).
A person is disabled for the purposes of SSI and disability benefits if he or she is
unable “to engage in 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)(1)(A) & 1382c(a)(3)(A). In assessing whether a claimant is disabled, the ALJ must
employ a five-step sequential analysis. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). The five steps are:
whether the claimant is currently engaged in substantial
if not, whether the claimant has any “severe impairment”
that “significantly limits [the claimant’s] physical or mental
ability to do basic work activities”;
if so, whether any of the claimant’s severe impairments
meets or equals one of the impairments listed in Appendix
1 of Subpart P of Part 404 of the relevant regulations;
if not, whether despite the claimant’s severe impairments,
the claimant retains the residual functional capacity to
perform his past work; and
if not, whether the claimant retains the residual functional
capacity to perform any other work that exists in significant
numbers in the national economy.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) & 416.920(a)(4)(i)-(v); Berry v. Schweiker, 675 F.2d at 467.
“The claimant bears the burden of proving his or her case at steps one through four[;] . . . [a]t
step five the burden shifts to the Commissioner to ‘show there is other gainful work in the
national economy [which] the claimant could perform.’” Butts v. Barnhart, 388 F.3d at 383
(quoting Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).
The ALJ’s Decision
In his decision, the ALJ followed the required five-step analysis for evaluating
disability claims. (Tr. 11-21). Under step one of the process, the ALJ found that Bantle had not
engaged in substantial gainful activity since July 13, 2012, the application date. (Tr. 13). At step
two, the ALJ concluded that Bantle had the severe impairments of endometriosis, interstitial
cystitis, fibromyalgia syndrome, tachycardia, major depressive disorder, generalized anxiety
disorder, and panic disorder without agoraphobia. (Id.). The ALJ determined that Bantle’s
asthma and PTSD were not severe. (Id.). At step three, the ALJ determined that Bantle did not
have an impairment (or combination of impairments) that met or medically equaled one of the
listed impairments. (Tr. 14-15). With respect to Bantle’s mental impairments, the ALJ found
that Bantle suffered from no restrictions in activities of daily living and moderate difficulties in
maintaining concentration, persistence and pace, and social functioning. (Id.). The ALJ
concluded that Bantle had the RFC to perform sedentary work, but was limited to occasional
postural limitations, including climbing, balancing, stooping, kneeling, crouching, and crawling,
and required ready access to a bathroom. (Tr. 15-19). The ALJ also concluded that Bantle was
limited to work “that is simple, routine and repetitive tasks, involving only simple work related
decisions, with few, if any, work place changes,” and requiring only occasional interactions with
coworkers and supervisors and no interaction with the general public. (Id.). At steps four and
five, the ALJ determined that Bantle had no past relevant work, but that other jobs existed in the
national economy that Bantle could perform, including the positions of assembler/bench worker,
inspector, and packer. (Tr. 19-21). Accordingly, the ALJ found that Bantle was not disabled.
Bantle contends that the ALJ’s RFC determination is not supported by substantial
evidence and is the product of legal error. (Docket # 13-1). First, Bantle maintains that the ALJ
erred in evaluating the medical opinions of record. (Id. at 24-35). Specifically, Bantle argues
that the ALJ failed to adequately develop the record because he did not obtain treatment notes
from Nelson and Campbell; she also argues that the Appeals Council erred when it concluded
that consideration of Nelson’s treatment notes would not have altered the ALJ’s decision. (Id.).
Finally, Bantle maintains that the ALJ’s credibility analysis was flawed. (Id. at 35-41).
Evidentiary Gaps and Records Submitted to the Appeals Council
Bantle argues that the ALJ failed in his duty to adequately develop the record by
not requesting treatment records from Campbell and Nelson. (Docket # 13-1 at 29-30). The
government counters that the record was complete at the time of the hearing and the ALJ had no
duty to further develop the record. (Docket # 15-1 at 16-17). Having reviewed the record, I
agree with the government.
“It is well established in the Second Circuit that an ALJ is under an obligation to
develop the administrative record fully, to ensure that there are no inconsistencies in the record
that require further inquiry, and to obtain the reports of treating physicians and elicit the
appropriate testimony during the proceeding.” Martello v. Astrue, 2013 WL 1337311, *3
(W.D.N.Y. 2013). Given the non-adversarial nature of a Social Security hearing, “[t]he duty of
the ALJ, unlike that of a judge at trial, is to ‘investigate and develop the facts and develop the
arguments both for and against the granting of benefits.’” Vincent v. Comm’r of Soc. Sec., 651
F.3d 299, 305 (2d Cir. 2011) (quoting Butts, 388 F.3d at 386). Accordingly, before determining
whether the ALJ’s conclusions are supported by substantial evidence, a court must first evaluate
whether the claimant was provided a full hearing “in accordance with the beneficent purposes of
the [Social Security] Act.” Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755
(2d Cir. 1982); see also Archbald v. Colvin, 2015 WL 7294555, *3 (E.D.N.Y. 2015) (“[t]he
reviewing court must ensure that ‘all of the relevant facts [are] sufficiently developed and
considered’”) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 509 (2d Cir. 2009), cert.
denied, 559 U.S. 962 (2010)). “The ALJ’s duty to develop the record is enhanced when the
disability in question is a psychiatric impairment.” Ramos v. Colvin, 2015 WL 925965, *9
(W.D.N.Y. 2015) (internal quotations omitted).
The record demonstrates that records were requested from both Campbell and
Wayne County Mental Health, where Nelson was employed. (Tr. 59). Indeed, two requests for
information were addressed to Wayne County Mental Health. (Id.). Nothing in the record
suggested that further attempts to obtain more information from these sources would have been
successful. Accordingly, I conclude that the ALJ did not err by failing to further develop the
Subsequent to the ALJ’s decision, Bantle’s legal counsel did obtain additional
records from Wayne County Mental Health and submitted them to the Appeals Council. (Tr. 4,
911-81). The records contained treatment notes from Nelson for the period between February
2012 and June 2014. (Id.).
The regulations require the Appeals Council to consider “new and material”
evidence “if it relates to the period on or before the date of the [ALJ’s] hearing decision.” 20
C.F.R. §§ 404.970(b) and 416.1470(b); see Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996). The
Appeals Council, after evaluating the entire record, including the newly-submitted evidence,
must “then review the case if it finds that the [ALJ’s] action, findings, or conclusion is contrary
to the weight of evidence currently of record.” 20 C.F.R. §§ 404.970(b) and 416.1470(b);
Rutkowski v. Astrue, 368 F. App’x 226, 229 (2d Cir. 2010). “If the Appeals Council denies
review of a case, the ALJ’s decision, and not the Appeals Council’s, is the final agency
decision,” although the “[n]ew evidence submitted to the Appeals Council following the ALJ’s
decision becomes part of the administrative record for judicial review.” Lesterhuis v. Colvin,
805 F.3d 83, 87 (2d Cir. 2015) (quoting Perez v. Chater, 77 F.3d at 45). The reviewing court’s
task then is to determine “whether substantial evidence supports the ALJ’s decision, when the
new evidence is included in the administrative record.” Ryder v. Colvin, 2015 WL 9077628, *4
I find that Nelson’s treatment notes, which were submitted by Bantle’s attorney to
the Appeals Council, could have influenced the Commissioner to reach a different conclusion
regarding Bantle’s request for benefits. In his decision, the ALJ gave limited weight to Nelson’s
opinions because she was not an acceptable medical source and because her treatment records
were not in the record. (Tr. 18). Although social workers are not considered “acceptable
medical sources” under the regulations, 20 C.F.R. §§ 404.1513(a), 416.913(a), they are
considered “other sources” within the meaning of 20 C.F.R. §§ 404.1513(d) and 416.913(d), and
their opinions may be used “to show the severity of the individual’s impairment(s) and how it
affects the individual’s ability to function.” See SSR 06-03P, 2006 WL 2329939, *2 (2006).
Indeed, Social Security Ruling 06-03P recognizes that “[m]edical sources . . . ,
such as . . . licensed clinical social workers, have increasingly assumed a greater percentage of
the treatment and evaluation functions previously handled primarily by physicians and
psychologists.” Id. at *3. The ruling recognizes that such opinions are “important and should be
evaluated on key issues such as impairment severity and functional effects, along with the other
relevant evidence in the file.” Id. The ruling directs the ALJ “to use the same factors for
evaluation of the opinions of acceptable medical sources to evaluate the opinions of medical
sources who are not acceptable medical sources, including licensed social workers.” Genovese v.
Astrue, 2012 WL 4960355, *14 (E.D.N.Y. 2012) (internal quotations omitted). “An ALJ is not
required to give controlling weight to a social worker’s opinion; although he is not entitled to
disregard it altogether, he may use his discretion to determine the appropriate weight.” Cordero
v. Astrue, 2013 WL 3879727, *3 (S.D.N.Y. 2013); Jones v. Astrue, 2012 WL 1605566, *5
(N.D.N.Y.) (“the Second Circuit has held that ‘the ALJ has discretion to determine the
appropriate weight to accord the [other source’s] opinion based on all the evidence before him”)
(quoting Diaz v. Shalala, 59 F.3d 307, 313-14 (2d Cir. 1995)), report and recommendation
adopted, 2012 WL 1605593 (N.D.N.Y. 2012); Allen v. Astrue, 2008 WL 660510, *8 (N.D.N.Y.
2008) (although not an acceptable medical source, “[a]s plaintiff’s longtime treating
psychotherapist and the only treating source who evaluated the disabling effects of plaintiff’s
mental impairments, [plaintiff’s therapist’s] opinion was relevant to the ALJ’s disability
determination . . . [;] [t]hus, the ALJ should have articulated why he discredited [the therapist’s]
According to the ALJ, without the treatment records, the record did not support
Bantle’s testimony that she received treatment at Wayne Behavioral Health approximately three
to four times per month and Nelson’s RFC assessment could not be credited.8 (Tr. 18). The
treatment records submitted to the Appeals Council would have addressed both issues: they
would have permitted the ALJ to determine the frequency of contact between Nelson and Bantle
and to evaluate Nelson’s RFC assessments in light of her treatment notes. Although it is unclear
whether review of Nelson’s notes would have persuaded the ALJ to give greater weight to
Nelson’s opinion, the notes would have eliminated the stated basis on which the ALJ discounted
Nelson’s opinion – that the opinion could not be credited in the absence of the notes.
The ALJ’s determination, which discounted Nelson’s opinion, explicitly relied
upon Noble’s opinion – an assessment that was based solely upon his review of the record, rather
than his own evaluation of Bantle. Although the government correctly notes (Docket # 15-1 at
22) that a non-examining physician’s opinion may constitute substantial evidence, see Miller v.
Colvin, 2016 WL 4478690, *13 (W.D.N.Y. 2016) (“the law refutes any suggestion that the
opinions of non-examining physicians may never constitute substantial evidence to support an
RFC determination”), Noble’s assessment in this case rested upon his review of an incomplete
record. Even Noble opined that updated treatment records would assist his analysis. (Tr. 60).
Indeed, if Noble had reviewed the records submitted to the Appeals Council, he might have
The government suggests that Bantle testified that she treated with Nelson approximately three to four
times per month and that the additional records submitted to the Appeals Council contradict this testimony. (Docket
# 15-1 at 17). To the contrary, Bantle testified that she treated with Wayne Behavioral Health approximately three
to four times per month. (Tr. 35). The additional treatment records, reviewed in conjunction with the records before
the ALJ, suggest that Bantle was generally scheduled to meet with Nelson twice a month and to attend medication
management appointments once a quarter. (Tr. 867, 911-81). On this schedule, Bantle well may have attended
three appointments in one month at Wayne Behavioral Health.
reached different conclusions regarding Bantle’s ability to perform the requirements of simple
work. Under these circumstances, I cannot say that the ALJ’s determination was supported by
substantial evidence. See Welsh v. Colvin, 2016 WL 836081, *12 (W.D.N.Y. 2016) (ALJ’s
decision not supported by substantial evidence where it relied upon consulting physician opinion
that was based upon an incomplete record) (collecting cases).
More importantly, if the ALJ had reviewed the additional records and altered the
weight he accorded to Nelson’s opinions, which were consistent with some of the limitations
assessed by Campbell and Ransom, the ALJ might also have altered the weights he accorded to
Ransom, Campbell, and Noble. See Ryder v. Colvin, 2015 WL 9077628 at *5 (remanding where
additional evidence submitted to Appeals Council, which included an opinion from a treating
provider, “reasonably would have altered the weight [the ALJ] gave to the consulting opinions,
especially [the non-examining physician’s opinion], which was entirely based on a review of the
incomplete evidence in the administrative record”). Accordingly, I conclude that remand is
warranted for reconsideration of the entire administrative record, including the new evidence
submitted to the Appeals Council.
On remand, the ALJ should consider fully Bantle’s mental health treatment
records, including the treatment notes authored by Nelson. The ALJ should reevaluate the
weight, if any, to be given to each of the opinions of Bantle’s mental limitations contained in the
record, including the opinions submitted by Noble, Ransom, Campbell, and Nelson, and
recontact those sources for additional information, if necessary. In his decision, the ALJ should
identify the weight he accords to each of the opinions of record and explain his reasons for
discounting or rejecting any opinions. See Lesterhuis v. Colvin, 805 F.3d at 88 (that treating
physician’s opinion is generally entitled to controlling weight does not preclude ALJ from
concluding, upon remand, that opinion is “not entitled to any weight, much less controlling
weight, but that determination should be made by the agency in the first instance”).
Weighing Medical Opinions
It is well-settled that in weighing the medical opinions (physical and mental) from
treating physicians, the ALJ must consider various factors and should explain and give good
reasons for the weight, if any, he assigns to treating physician opinions. See Burgess v. Astrue,
537 F.3d 117, 129 (2d Cir. 2008) (“[a]fter considering the [relevant] factors, the ALJ must
comprehensively set forth his reasons for the weight assigned to a treating physician’s opinion”)
(internal quotations and brackets omitted). This requires the ALJ to do more than observe in
conclusory fashion that certain opinions are generally consistent with the overall evidence of
record, while others are inconsistent with that evidence. See Ely v. Colvin, 2016 WL 315980, *4
(W.D.N.Y. 2016) (“the ALJ’s statement that the rejected opinions were ‘not supported by the
record as a whole’ is too conclusory to constitute a ‘good reason’ to reject the . . . opinions[;] . . .
[w]ithout identifying the alleged inconsistencies in the record, the ALJ has failed to provide any
basis for rejecting [the] opinions”) (collecting cases); Erb v. Colvin, 2015 WL 5440699, *14
(W.D.N.Y. 2015) (same); Miller v. Comm’r of Soc. Servs., 2015 WL 337488, *22 (S.D.N.Y.
2015) (“[i]n giving ‘little weight’ to [treating physician’s] opinion, the ALJ also reasoned that it
was ‘inconsistent with the extensive activities of daily living that the claimant was able to
perform’[;] . . . [s]uch a conclusory statement, which does not identify which activities are being
referenced, is insufficient to meet the ALJ’s obligations to ‘comprehensively set forth [the]
reasons for the weight assigned’ to the opinion”) (quoting Burgess v. Astrue, 537 F.3d at 129).
With respect to consultative physicians’ opinions, the ALJ should consider the same factors to
determine the weight to give those opinions. Tomasello v. Astrue, 2011 WL 2516505, *3
(W.D.N.Y. 2011). On remand, the ALJ should reevaluate the weight assigned to each opinion of
record, explain his reasons for discounting or rejecting any opinions, and explain, with specific
references to the record, the manner in which the opinions are consistent or inconsistent with
other record evidence.9
Bantle also challenges the ALJ’s credibility analysis on the grounds that he failed
to provide good reasons for discounting Bantle’s testimony and mischaracterized the record.
(Docket ## 13-1 at 35-41; 16 at 6-7). In light of my determination that remand is warranted to
permit the ALJ to reevaluate the medical opinions contained in the record, I decline to evaluate
whether the ALJ erred in assessing Bantle’s credibility. See Norman v. Astrue, 912 F. Supp. 2d
33, 85 n.79 (S.D.N.Y. 2012) (“[b]ecause I find that remand is proper on the basis of the ALJ’s
failure to properly develop the record and to properly apply the treating physician rule, I do not
reach plaintiff’s arguments with respect to (1) the ALJ’s determination of his RFC at step four
and (2) whether the ALJ carried his burden at step five of the analysis[;] [t]he aforementioned
legal errors cause the remaining portions of the ALJ’s analysis to be inherently flawed”); Balodis
v. Leavitt, 704 F. Supp. 2d 255, 268 n.14 (E.D.N.Y. 2010) (“[b]ecause the [c]ourt concludes that
the ALJ erred in applying the treating physician rule, and that a remand is appropriate, the [c]ourt
need not decide at this time whether the ALJ erred in assessing plaintiff’s credibility”).
Bantle challenges the ALJ’s reliance upon Noble’s opinion on the grounds that Noble reviewed and
relied upon evidence not contained in the record in reaching his opinion. (Docket # 13-1 at 26-27). He argues that
Noble relied upon an opinion from Dr. Odysseus Adamides dated June 22, 2012, that was based upon an assessment
completed on June 7, 2012, and upon a consultative examination report completed in March 2012 in connection with
Bantle’s previous claim for benefits. I agree with the government (Docket # 15-1 at 13) that Noble’s opinion
referenced a treatment note authored by Sandi Grant, NP, and countersigned by Odysseus Adamides, MD, which is
contained in the record. (Tr. 507). The March 2012 consultative opinion, by contrast, does not appear to be
contained in the record. Noble cited it only for the proposition that Bantle had previously reported an ability to
manage her money. (Tr. 65-66). As the ALJ concluded that Bantle was capable of paying her own bills (Tr. 14,
19), he should revisit that issue on remand, and if he still reaches the same conclusion, he should cite evidence in the
record that supports his conclusion.
For the reasons stated above, the Commissioner’s motion for judgment on the
pleadings (Docket # 15) is DENIED, and Bantle’s motion for judgment on the pleadings
(Docket # 13) is GRANTED to the extent that the Commissioner’s decision is reversed, and this
case is remanded to the Commissioner pursuant to 42 U.S.C. § 405(g), sentence four, for further
administrative proceedings consistent with this decision.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
February 24, 2017
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