ROSA v. ASTRUE

Filing 15

MEMORANDUM. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 06/28/2013. 06/28/2013 ENTERED AND COPIES E-MAILED.(jmg, )

IN THE UNITED ST~TES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

WILLIAM ROSA,
Plaintiff,
v.

NO. 12-5102

CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL SECURITY
Defendant

MEMORANDUM
:PLAINTIFF'S MOTION
FOR SUMMARY JuiDGMENT OR REMAND
June 28, 2013

Baylson, J.
I.

INTRODUCTION

Plaintiff, William Rosa, seeks judicial eview of the Social Security Administration's
("SSA") denial of his application for Supplem ntal Security Income ("SSI"). Rosa contends that
the Administrative Law Judge ("ALJ") denied him a full and fair hearing by failing to order a
consultative examination of his physical impairments, and failing to obtain the treatment records
from his psychiatrist. For the reasons discuss I d below, the Court agrees that the ALJ erred in
failing to obtain Plaintiffs mental health treat ent records and will GRANT Plaintiffs motion
to remand on this basis.
II.

FACTUAL BACKGROUND & PROCEDU~L HISTORY

On December 11, 2009, Plaintiff filed an application for SSI on the basis of a heel injury
he suffered in a September 2009 car crash. 1 P aintiff s heel, which was shattered in the crash,
now has an inserted metal plate and several m .tal screws to hold it together. Although Plaintiff
was initially unable to walk, he is now able to

1

alk with the assistance of a cane. Plaintiff

Plaintiffs application also referenced high blood pres ure, but a subsequent medical examination found his blood
pressure to be within normal limits. Since Plaintiff no l nger alleges a disability on this basis, the Court will not
address the issue here.

claims that his heel continues to give him con tant pain, and makes it difficult to walk, stand, and
balance.
On April13, 2010, Dr. Kurt Maas co

leted a residual functional capacity assessment of

Plaintiffs physical abilities on behalf of the S$A. After reviewing Plaintiffs medical records,
Maas concluded that the heel fracture was res, onding well to treatment (i.e., physical therapy
and medication), and that Plaintiff would havelthe ability to resume work at the medium
exertionallevel by September 2010. On the same day that Maas completed his assessment, the
SSA denied Plaintiff's claim for SSI benefits i n the grounds that his injury was "not expected to
remain severe enough for 12 months in a row o keep [Plaintiff] from working." Administrative
Record ("A.R.") at 59.
Following the SSA's denial of his claim, Plaintiff requested a hearing and underwent
several medical examinations by DL Thomas

t·

Zavitsanos and Dr. Galina Zeltser. These

examinations, which occurred between April26, 2010 and July 7, 2010, revealed "persistent
right foot pain post heel surgery" and "possib+ degenerative changes (i.e., "possible
radiculopathy per EMG in conjunction with a right peroneal neuropathy"). Id. at 266. Based on
indications of degenerative changes, an MRI 1 as conducted of Plaintiff's spine. The MRI
showed "minimal disc bulging from L2-L3 through L4-L5," but otherwise "normal height and
marrow signal" of the vertebral bodies, and "n[ significant narrowing of the central canal or
neural foramina." !d. at 261. Shortly thereaf+ , Plaintiff received a steroid injection in his
lumbar spine. The record does not contain ad1itional reports of spine-related ailments
subsequent to this injection.
Plaintiffs hearing before the ALJ (Gerald Spitz) occurred on November 17, 2010. At the
hearing, ALJ Spitz asked Plaintiff: "Is it fair to say, and please correct me if it's not fair to say,

2

that the-what brings you here today, the proiJlem you have, let' s say, one year after the
accident, is all from the heel and pain from th heel, or do you have some other problems in
addition to difficulties arising from . . . that da age to your heel?" Id. at 40. The Plaintiff, who
represented himself prose, responded: "Yes. l really can' t walk the way I used to walk," adding
that he was "constantly in pain" because of the heel. Id.
The AU followed up by asking PlainJ fto describe his daily routine. In his response,
Plaintiff mentioned "going on doctor visits," it eluding to his "psych doctor." ld. at 41.
Plaintiffs reference to having a "psych doctorr prompted the ALJ to ask "where do you go for
your mental health? ... I don't have that, I dor t believe, and I'm [sic] want to go get it." Id.
Plaintiff handed the ALJ a one-page docume t from the Hispanic Community Counseling
Services ("HCCS"). The document, dated No ember 16,2010, identified Plaintiff as suffering
from adjustment disorder (i.e., "309 Adj. Diso der NOS") and stated that he was receiving
"psychotherapy" from one ofHCCS's therapi~s (Miguel Cotes) and medications from an HCCS
psychiatrist (Dr. Geraldine Mayor). !d. at

2701Plaintiffs admission date was listed as August

16, 2010, and an antidepressant (Citalopram) was listed as one of the medications he was being
prescribed. 2
After receiving the HCCS document, t e ALJ told Plaintiff several times that he would
attempt to obtain Plaintiffs mental health trea

ent records from HCCS. See id. at 41 -42, 45 ,

51 , 55. The ALJ reiterated this assurance at the close of the hearing, stating: "So, what I'll do is
close the record for today and, upon receipt of r e records from Hispanic counseling, I'll review
the totality of the records that I have, the testil ony, the documents. I'll apply all of it to the
statutory law and regulations .... " Id. at 55.
2

The HCCS document appears to list two medications, li>ut only the Citlopram prescription is legible. A.R. at 270.
At the hearing, Plaintiff provided the ALJ prescription nbtes for two antidepressants (Citloplam and Mirtazapine).
l..Q_,at44 .

3

During the hearing, the ALJ asked Plai tiff a question to clarify the nature of his mental
health problem. The ALJ asked, "how do you feel the mental aspects would impact- how do
they impact you now? How do you think they

ould impact on a job?" Id. at 48. Plaintiff

responded: "Well, I'm mostly depressed. I m ·an, I'm-I'm not used to being-how do you say
it---<lependent on people. Now, I feel like, I df n't know, I guess, less than a man, because . .. I
never needed any help from anybody." Id. Plaintiff, who had previously mentioned having a
problem with "anxiety," id. at 39-40, stated tht t his inability to work or exercise made it difficult
for him to get his "mind off of things," id. at

4
r.

On March 1, 2011 , the ALJ issued an opinion denying Plaintiffs disability claim.
Although finding Plaintiff s heel injury to be

severe impairment that continued to cause

residual pain, the ALJ concluded that Plaintif retained the residual functional capacity (RFC) to
perform light exertional work. The ALJ

base~

this conclusion on both Dr. Maas's RFC

l

assessment in March 2010 and the absence of by reports of spine-related injuries following
Plaintiffs steroid injection in June 2010.

With respect to Plaintiffs mental healt status, the ALJ stated that he sent HCCS "three
requests for treatment records," but "received l o response whatsoever." Id. at 14, 16. The ALJ
thus limited his consideration of Plaintiff's mt tal health problems to the evidence already in the
record, which the ALJ described as "sporadic and inconsistent references to panic attacks and
anxiety" which have "not been well documentt d or alleged as a disabling condition." !d. at 14.
In finding Plaintiffs mental issues to be non-sr ere, the ALJ gave "significant weight" to a
March 20 I 0 review of Plaintiffs pre-HCCS rt ords by state consultant, Dr. James Cunningham.
While Dr. Cunningham found evidence of an adjustment disorder, he found no indication of a
"severe psych disorder." Id. at 242.

4

After the ALJ issued his opinion, Plai~iffhired an attorney to file an appeal to the SSA's
Appeals CounciL Plaintiffs attorney provide, the Appeals Council allegedly new and material
evidence, including two "ability to do work-re ated activities" assessments from Dr. Mayor
(dated June 2, 2011 and March 15, 2012), and an RFC assessment from Plaintiffs treating
podiatrist, Dr. Justin Fleming (dated March 17 2011). 3 According to Dr. Mayor, Plaintiff has
extreme limitations in his capacity to (1) under tand, remember, and carry out detailed
instructions; (2) interact appropriately with th1 public, supervisors, and co-workers; and (3)
respond to changes and pressure in a work settling. According to Dr. Flemming, Plaintiff can
only walk/stand for one hour in an eight hour t orkday, and has a number of serious postural
.s
limitations. Although Mayor's and Flemming r assessments were prepared after the ALJ
released his opinion, Plaintiffs attorney arguer that "[b ]oth physicians had been treating the
claimant for several years by the time they coipleted the medical statements," and thus "their
opinions pertain to the claimant's disability pnor to the ALJ' s decision." 4 Id. at 148.
On July 11, 2012, the Appeals Council denied Plaintiffs appeaL Plaintiffthereupon filed
a request for review with this Court. (ECF No.3). Plaintiff has moved for reversal or remand
based on the ALJ' s failure to order a consultatL e examination of his physical injuries and
I

subpoena the mental health treatment records l orn HCCS. (ECF No. 8).
On May 30, 2013 , the Court issued an Order requesting further briefing from the parties
on three issues: (I) whether the failure by Plait tiff's attorney to obtain the HCCS treatment
records during the Appeals Council proceedin · waived Plaintiffs claim with respect to the

3

Plaintiff's attorney did not obtain HCCS ' s treatment records from 2010. In a supplemental briefto this Court,
Plaintiff explained that the HCCS records were not subfitted to the Appeals Council because HCCS has a strict
policy against releasing treatment records in the absence of a subpoena.
4
In his briefs to this Court, Plaintiff concedes that the a~sessments by Drs. Mayor and Fleming are not new and
material evidence, and thus the Court will not consider t em as such.

5

5

ALJ's previous failure to obtain these same re ords; (2) whether this Court can credit the ALJ's

r

statements that he requested the HCCS record1 in the absence of docwnentation that the requests
were made; 6 and (3) whether an ALJ's failure

issue a subpoena can ever constitute an abuse of

discretion where the claimant did not request Tat a subpoena be issued. (ECF No. 12). The
parties filed their responses on June 13, 2013, (ECF Nos. 13 &14), and the matter is now ripe for
decision.

III.

LEGAL STANDARD

7

A district court must uphold an ALJ's isability determination so long as it is supported
by "substantial evidence." Rutherford v. Ba

art, 399 F.3d 546, 552 (3d Cir. 2005).

Substantial evidence is "more than a mere scinl illa but may be somewhat less than a
preponderance of the evidence." ld. A districj court may not "weigh the evidence or substitute
[its own] conclusions for those of the fact-finder." ld. "Evidence is not substantial," however, if
the ALJ "failed to consider all relevant evideJ e . .. ." Sanchez v. Comm'r of Soc. Sec., 271 F.
App'x. 230,232 (3d Cir. 2008) (citing Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d
Cir. 2000)); see also Dobrowolsky v. Califanj 606 F.2d 403,407 (3d Cir. 1979) (stating that
ALJ must consider all "relevant, probative anl available evidence").
While a claimant bears the burden ofpr ving his disability, 20 C.F.R. § 404.1512(a), the
Third Circuit "has repeatedly emphasized that ~he special nature of proceedings for disability
benefits dictates extra care on the part of the agency in developing an administrative record and
in explicitly weighing all evidence," DobrowoLk , 606 F.2d at 406-07. "ALJs have a duty to
develop a full and fair record in social security cases," Ventura v. Shalala, 55 F.3d 900, 902 (3d
5

In its response, Defendant conceded that this circumstance did not constitute a waiver.
See infra note 9 for a discussion of the parties' respectlve arguments on this issue. Under the circumstances of this
case, the ALJ's duty to develop a full and fair record re9uired more than just requesting the HCCS records .
Accordingly, whether or not the ALJ made the requests r as ultimately immaterial to the outcome of this case.
7
This Court has subject matter jurisdiction ofthis action pursuant to 42 U.S .C. §§ 405 and 1383(c)(3).
6

6

Cir. 1995), and this duty is heightened when tlie claimant appears at the hearing without the
benefit of counsel. When a claimant is unreprt sented, "the ALJ must ' scrupulously and
l
conscientiously probe into, inquire of, and ex~ lore for all the relevant facts."' Reefer v.

Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (i ernal quotation marks omitted); see also
Comiskey v. Astrue, No. 09-0252, 2010 WL 308979, at *5 (E.D. Pa. Jan. 27, 2010) ("The Third
Circuit repeatedly has recognized that an ALJ

ust 'assume a more active role when the

claimant is unrepresented. '"). When an ALJ ' as failed to exercise his authority to attempt to fill
significant evidentiary gaps that are material t the disability determination," remand is
appropriate. Comiskey, 2010 WL 308979, at 17 (quoting Jozefick v. Shalala, 854 F. Supp. 342,
349 (M.D. Pa. 1994)).
IV.

ANALYSI S

A.

The ALJ Was Not Required to Ord r a Consultative Exam
The Court will begin its analysis by adr ressing Plaintiffs argument that the ALJ erred in

not ordering a consultative examination ofhis lphysical injuries. Under SSA regulations, an ALJ
"may decide to purchase a consultative examT ation" where "there is an indication of a change in
[claimant's] condition that is likely to affect [1laimant' s] ability to work."' 20 C.F.R. §
404.1519a. Plaintiff argues that the findings

~y

Drs. Zavitsanos and Zeltzer with regard to

degenerative nerve damage and persistent heej pain "qualify as a change in condition likely to
affect Plaintiff s ability to work. " PI ' s Br. at 9. Plaintiff contends that these findings imposed a
duty on the ALJ to order a consultative exami ation. This argument falls short, however,

8

In a previous case involving a represented claimant, t is Court held that use of the word "may" in the regulations
" leaves the decision of ordering a consultative exam ina ion at government expense entirely within the ALl ' s
discretion. " Reid v. Astrue, No. 06-2694 , 2008 WL 21 15100, at *4 (E.D. Pa. May 23 , 2008). Whether or not Reid 's
holding applies equally to prose claimants is a question that is not addressed here because the ALl was justified in
concluding that the evidence did not indicate a likely c ange in Plaintiff's physical ability to work.
1

7

because the ALJ provided a clear basis why h did not believe Zavitsanos's and Zeltzer's
findings suggested a likely material change to Plaintiffs physical ability to work.
First, Zavitranos's and Meltzer's initia I concern about "possible" degenerative changes
was not confirmed by the MRI that Zavitranos subsequently ordered. As the ALJ noted, the MRI
found "only minimal disc bulging" and no infll"ngement on the spinal cord. A.R. at 15. Second,
according to Zavitranos, the only treatment in icated by these findings was a lumbar steroid
injection, and subsequent to this single injectij n, "there are no further records regarding any back
injuries." Id. When the ALJ asked Plaintiff al the hearing whether he was receiving any
treatment for his back, Plaintiff said "no." Id. at 46. Although Plaintiff testified to having back
pain when he sits down for extended periods

o time, Plaintiff did not reference his back when
[

asked if he was alleging disability based on "other problems" besides his heel injury. Id. at 40,
45-46. Finally, while the ALJ gave little credJ to Plaintiffs alleged back-related injuries, the
ALJ did credit the persistence of Plaintiffs heL pain. Whereas Dr. Maas had previously
concluded that Plaintiff could resume work at r e medium exertionallevel by September 20 I 0,
the ALJ concluded that Plaintiffs persistent heel pain limited him to only mild work.
The Court is satisfied that the ALJ ade1uately accounted for Drs. Zavitsanos's and
Zeltzer' s findings and had a reasonable basis f<Dr concluding that Plaintiff did not experience a
change in his physical condition that was

B.

likel~ to affect his ability to work.

The ALJ Failed to Develop a "Full at d Fair Record"
Plaintiff argues that the ALJ erred by failing to develop the record with respect to his

mental impairment. For the reasons that folio{ , the Court agrees that the ALJ erred, and finds
that the error was sufficiently prejudicial to warrant remand.

8

1.

The ALJ Committed Legal Error

Since Plaintiff was a pro se claimant, there can be no dispute that the ALJ had a duty to
request Plaintiff's psychiatric treatment

record~ from HCCS. See Reefer, 326 F.3d at 380;

Comiskey, 2010 WL 308979, at *5 . In his opihion, the ALJ states that he made three requests
for the records; the Administrative Record, hor ever, contains no evidence of these requests' If
the requests were not made, the error would

b~

obvious. But, even if the requests were made,

requests alone were not sufficient under the cir umstances of this case to satisfy the ALJ' s
heightened duty to develop a full and fair recoid.
The Third Circuit has stated that the adequacy of an ALI's investigation is determined on
a "case-by-case" basis. Reefer, 326 F.3d at 38r . In this case, there were several factors-in
addition to Plaintiffs prose status-that heig~tened the ALI's duty to obtain Plaintiffs
treatment records. These factors included: the I LJ's awareness of the records' existence; 10 the
A
ALJ' s statements that he would hold off on writing an opinion until obtaining the records; 11 the
fact that the records suggested a mental impail ent; 12 and the fact that the records were from

9

Defendant argues that the "presumption of regularity" r,or public officer actions requires that this Court presume
the requests were made. This presumption, however, only applies "in the absence of contrary evidence." Kephart v.
Richardson, 505 F.2d 1085, 1090 (3d Cir. 1974). Contr1ry evidence includes evidence "showing the government
did not comply with proper procedures when taking the action at issue." United States v. Fry, No. 05-5300, 2007
WL 1696015, at *5-6 (E.D. Pa. Apr. 2, 2007). In social lsecurity cases, it is routine procedure for the Administrative
Record to include records (e.g. , Notice of Hearing) demonstrating the SSA's fulfillment of duties owed to the
claimant. Some courts have taken the position that this procedure applies to an ALl's duty to develop the
evidentiary record. See Smith v. Astrue, No. 05-1433 ,2008 WL 4517810, at *7 (N.D.N.Y. Sept. 30, 2008) ("The
ALJ must also enter these attempts at evidentiary develdpment into the record."); Suriel, 2006 WL 2516429, at *4
(same); Jones v. Apfel, 66 F. Supp. 2d 518,524 (S.D.Ny. 1999) (same). The Court need not resolve this issue here.
10
See Wooten v. Astrue, No. 11-7592,2012 WL 66013],1, at *4 (E.D. Pa. Dec. 17, 2012) ("When there is a
perceived gap in the historical record, the ALJ has an ollligation to obtain the missing information.").
11
Courts have found unfairness where, as here, the ALJ jmdicates that he will obtain evidence on behalf of a pro se
claimant but does not subsequently do so. See Hess v. Sec. of Health, Educ. & Welfare, 497 F.2d 837, 841 (3d Cir.
1974); Jozefick, 854 F. Supp. at 349.
I
12
See Plummer v. Apfel, 186 F.3d 422, 434 (3d Cir. 19~9) ("The ALJ has a duty to develop the record when there is
a suggestion ofmental impairment .... "); Wooten v. A$true, No. 11-7592,2012 WL 6601397, at *3 (E.D. Pa. Dec.
17, 20 12) ("The ALl's duty to develop the record is heightened where a claimant acts pro se .... It is even more
compelling when the pro se claimant has a mental impairment.").

9

Plaintiffs treating psychotherapist and psychirrist.

13

The presence of these independently

significant factors imposed a heightened duty on the ALJ.

·

While the ALJ had no control over wht ther HCCS responded to his requests, he had
other options at his disposal to address the situation. First and foremost, he could have issued a
subpoena. 20 C.F.R. § 416.1450(d)(l) (statinJ that an ALJ has authority "on his or her own
I

initiative" to issue and enforce subpoenas for the production of records "[w]hen it is reasonably
necessary for the full presentation of a case"). l While the controlling regulations speak in terms
of when ALJs "may" exercise this authority, s me district courts have stated that the authority to
issue/enforce subpoenas can become mandator where, as here, the claimant is prose. Ez.,
Jozefick, 854 F. Supp. at 348; Suriel, 2006

W~ 2516429 ,

at *4; Jones, 66 F. Supp. 2d at 524. As

Plaintiff notes, "[i]fthe [the ALJ] is not required to subpoena records for an unrepresented
claimant from a medical provider who won' t 1rovide full treatment records without a subpoena,
then her obligation to develop the record is rendered pointless." PI ' s Suppl. Br. at 6.
To the extent that the ALJ had a reaso, able basis for not issuing a subpoena, his
heightened duty obligated him, at a minimum, ~ to notify Plaintiff of his intent to forego
considering the HCCS records prior to issuinf the opinion. The ALJ owed this to Plaintiff, in
part, because of the ALJ's statement at the hej ing that he would attempt to obtain the records
and would hold off on issuing his final opinion until receiving them. See A.R. at 55 (" [U]pon
receipt of the records from Hispanic counselink, I'll review the totality of the records that I have,
the testimony, the documents. I'll apply all o+ to the statutory law and regulations .. . .").
Having given Plaintiff the reasonable expectation that the final decision would not be issued until
I

the HCCS records were obtained, the ALJ's failure to notify Plaintiff of his intent to issue the

~

"
Suriel v. Comm' r of Soc. Sec., No. 05-1218, 20J WL 2516429, " '4 (E.D .N .Y. Aug. 29, 2006) (" [An
ALJ's] affirmative duty is heightened in cases involving prose plaintiffs, and is further enhanced when the record
sought is that of a treating physician.").

10

opinion in the absence of these records was manifestly unfair. See Jozefick, 854 F. Supp. at 349
("[The claimant] was clearly justified in

belte~ing that efforts would be undertaken to secure

evidence from Dr. Dretbelb1s, etther m wntmJ or by way of testimony, before a declSlon was
made. It is manifestly unfair to have issued a decision without such efforts being pursued."); see
also Hess, 497 F.2d at 841 (" [W]e note that

al~ough no definite commitment was made [by the

ALJ], the claimant may well have inferred that the latest records of the Geisinger Medical Center
would be obtained before a decision would be r anded down.").
In light of the ALl's heightened duty ij this case to obtain the treatment records, his
failure to either subpoena the records or provide notice to Plaintiff of his intent to issue the
opinion without considering them, violated Plaintiffs right to a full and fair hearing.

2.

The ALJ's Error Prejudiced Plaintiff's Substantial Rights
In Shinseki v. Sanders, 556 U.S. 396, 107 (2009), the Supreme Court made clear that the

"harmless error" rule that reviewing courts apJ?ly in "ordinary civil cases," is equally applicable
I

to "administrative cases." 14 Under the harmless error rule, an error only warrants remand if it
prejudiced a party's "substantial rights." 28 U S.C. § 2111. An error implicates substantial
rights if it likely affects the outcome of the pror eeding, or like! y affects the "perceived fairness,
integrity, or public reputation of judicial procef dings." Sanders, 556 U.S. at 411-412.
Since the burden of proving prejudice in civil and administrative cases is on the party
alleging error, id. at 409, a quandary is created where the error, as here, led to a deficiency in the
evidentiary record. If the evidence that may hL e been obtained is not yet known, it is naturally
difficult to assess the error's impact on the outj ome of the proceeding. This, however, is not a

14

Although Sanders addressed administrative proceedings within the Department of Veterans Affairs, courts have
interpreted its holding and reasoning as being equally applicable to social security proceedings. g , McLeod v.
Astrue, 640 F.3d 881 , 887 (9th Cir. 2011); Watts v. Astrue, No. 12-4116,2013 WL 2392909, at *3 (E.D. Pa. June 3,
2013) (Baylson, J.).

11

barrier to a demonstration of harmfulness. SJ McLeod, 640 F.3d 881, 887-88 ("Sanders does
I

not mean that the claimant necessarily has to show what other evidence could have been
obtained."); Comiskey, 2010 WL 308979, at *7 ("[T]he Third Circuit has not required the
claimant to produce the very records to be considered in order to show prejudice . ... ").
The Sanders opinion provides useful gL dance for determining when an administrative
court' s failure to develop the record enables

I

a~

inference of prejudice. In Sanders, the Court

addressed two veteran affairs proceedings where defective notices impeded the claimants' ability
to produce evidence of their alleged

service-re~ated disability. In one case, the error was held

harmless because the claimant did not specify any "specific additional evidence" he would have
obtained, or how this evidence "could have made any difference," despite the fact that the
claimant had been alleging a service-related

d~sability for over 60 years and had had "numerous

medical examinations." !d. at 413. In the otht r case, the Court held that remand was warranted

because there were reasonable "uncertainties" [
about the error's impact on the judgment. Id. at
414. Although the Court acknowledged that "fs]ome features ofthe record suggest[ed] the error
was harmless," remand was appropriate because other evidence in the record suggested that the
missing evidence (i.e., an additional medical examination) "might have" have changed the
I

outcome. Id. A failure to develop the record can thus be found harmful in the absence of clear
evidence of prejudice.
In this Circuit, district courts have found prejudice where the ALJ's failure to develop the
I

record resulted in "significant evidentiary gaps that are material to the disability determination."
Comiskey, 2010 WL 308979, at *7 (quoting Jl zefick, 854 F. Supp. at 349)). Under Sanders,
however, reviewing courts cannot presume prejudice based on per se rules. 556 U.S. at 408. A
finding of prejudice must rest, instead, "on the facts and circumstances of the particular case."

12

Id. at 411. A reviewing court can, however, tj ke account of the "natural effects" of the error at
issue. Id. "Natural effects" are "empirically l ased generalizations about what kinds of errors are
likely, as a factual matter, to prove harmful." [d. In the wake of Sanders, therefore, the existing

I

rule in this Circuit that a claimant is prejudiced when there are "significant evidentiary gaps that
are material to the disability determination" is perhaps best viewed as a "natural effect," rather
than a presumption.
As in Sanders, there are factors in this case that suggest the ALJ's error was harmless.
One of these factors is Dr. Cunningham's conLusion that Plaintiffs pre-HCCS medical records
"do[] not indicate the presence of a severe psl h disorder." A.R. at 242. Another factor is
Plaintiffs failure to allege, either in his SSI

a~plication

or at the hearing, that his mental

impairments were a disabling condition. In his SSI application, Plaintiff focused solely on his
heel injury and stated that he had no impairmt ts that would limit his memory, ability to pay
attention, follow instructions, or get along with others. ld. at 128-129. At the hearing, Plaintiff
responded in the affirmative when the ALJ as{ed if"it was fair to say" that the heel injury was
the sole basis for his disability claim. ld. at 40. Further, when asked to describe his mental
impairment, Plaintiff stated that he was "mostly depressed" because he was "not used to being . .
. dependent on people," id. at 48-a response lhat is arguably suggestive of a minor impairment
secondary to the heel injury.
While the aforementioned factors suggj st the ALJ' s error was harmless, there are "other
features" in this case that "suggest the opposite." See Sanders, 556 U.S. at 414. First, while the
ALJ may have been right that the current recojd is insufficient to demonstrate a "severe"
impairment, a mental impairment need not be severe to have a material effect on a disability
.
.
. I
.
.
. .
determmatwn. Th"IS IS because menta1 Impairments sueh as anxiety an d depress10n are

I
13

considered "nonexertionallimitations," 20 C.,.R. § 404 .1569a, which must be considered in the
ALJ's determination of a claimant's RFC, even when they do not constitute a "severe"
impairment under step 2 of the disability an1.sis. See Sykes v. Apfel, 228 F.3d 259,261 (3d
Cir. 2000). While nonexertionallirnitations "['t be "significant" to warrant consideration in the
RFC determination, id. at 268, the record is sufficient to justify this inference. First, Plaintiffs
pre-HCCS medical records contain several re+ences to mental health problems, including
"panic attack" and "anxiety," for which Plaintiff was prescribed Xanax. A.R. at 206, 212, 21 7,
221. Second, in the HCCS document that Plaibtiffprovided to the ALJ, Plaintiff is identified as
suffering from adjustment disorder and receivt g ongoing therapy, including anti-depressant

~~

medication.

Finally, the RFC assessments from HCCS's Dr. Mayor, while post-dating the ALJ's
ruling, provide added plausibility to Plaintiffs claim that the HCCS records could have had a
material effect on the outcome. Dr. Mayor assesses that Plaintiffs adjustment disorder has
caused a number of "marked" and "extreme" e fects on his capacity to understand, remember,
and carry out detailed instructions and respon appropriately to work-related pressures. ld. at
272-76. If the HCCS treatment records prior tr March 2011 are consistent with Dr. Mayor's
recent assessments, the records would be material to the RFC determination, particularly given
the "great weight" that courts give to the recort of a claimant's treating physician. Plummer,
186 F.3d at 429. ALJ's failure to obtain the trlatment records thus produced a "significant
evidentiary gap" that was "material" to the diJbility determination. Courts in this Circuit have
recognized that prejudice is a "natural effect"
308979, at *7; Isaac v. Astrue, No. 08-1661,

1an error of this kind. See Comiskey, 2010 WL
f

2~09

14

WL 1492277, at* 14 (W.D. Pa. May 28,

2009); Gauthney v. Shalala, 890 F.Supp. 401 ,

riO (E.D. Pa. Feb. 24, 1995); Jozefick, 854 F.

Supp. at 348.
Under the circumstances ofthis case,

t~erefore ,

the Court finds a sufficient basis to infer

that the ALI's failure to develop a full and fair record prejudiced Plaintiffs substantial rights.
V.

CONCLUSION

Based on the foregoing considerations, the Court will GRANT Plaintiffs Motion to
Remand. On remand, the ALJ should obtain t~e treatment records from HCCS as of March 1,
2011, or solicit the testimony of Dr. Mayor as to the status of Plaintiffs mental health during this
relevant time period. The ALJ should thereupon reassess its previous RFC determination in light
of this additional evidence.
An appropriate order follows.

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15