Grann v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ASHLEY LEE GRANN,

Plaintiff, DECISION AND ORDER

-vs- 18-CV-6556-MJP

COMMISSIONER OF SOCIAL SECUIRTY,

Defendant.

INTRODUCTION

Pedersen, M.J. Plaintiff Ashley Lee Grann (“Plaintiff”) brings this

action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g)

(and 42 U.S.C. § 1383(c)(3) for Supplemental Security Income) seeking judicial

review of a final decision of the Commissioner of Social Security

(“Commissioner”) denying her application for Supplemental Security Income

(“SSI”) benefits. Pursuant to 28 U.S.C. § 636(c) the parties have consented to

the disposition of this case by a United States Magistrate Judge. (ECF No. 13.)

Presently before the Court are cross-motions for judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF

No. 9 & ECF No. 11.) For the reasons stated below, this matter must be

remanded for a rehearing.

PROCEDURAL BACKGROUND

On November 29, 2014, Plaintiff protectively filed an application for SSI

benefits alleging disability beginning on August 11, 2014, including

degenerative disc disease, “bad wear and tear on disc and nerves in Plaintiff’s

back” and manic depression. (R.1 152–56; 174.) The Social Security

Administration denied Plaintiff’s claim on January 26, 2015. (R. 69–72.) On

April 12, 2017, a hearing was held before Administrative Law Judge (“ALJ”)

Gretchen Mary Greisler in Rochester, New York. (R. 32–58.) Plaintiff and her

representative were present at the hearing. (R. 32.) A vocational expert also

testified at the hearing (R. 32, 34.)

The ALJ issued a decision on May 17, 2017, finding that Plaintiff had

the following severe impairments: “a back issue, obesity, depression, bipolar

disorder and panic disorder with agoraphobia.” (R. 14.) Nevertheless, the ALJ

determined that Plaintiff was able to

perform light work as defined in 20 CFR 416.967(b) except she

can never climb ladders/ropes/scaffolds or crawl; and she can only

occasionally stoop, crouch, kneel and balance. The claimant can

tolerate a low level of work pressure, defined as work not

requiring multitasking, detailed job tasks, significant

independent judgment, a production-rate pace, sharing of job

tasks or contact with the public.

(R. 16.)

Plaintiff appealed to the Social Security Administration’s Appeals

Counsel and that body denied her request for review on June 1, 2018, making

the ALJ’s decision the Commissioner’s final decision. (R. 1–5.) Plaintiff filed

this lawsuit on August 1, 2018.

1 “R __” refers to the pages in the Administrative Record filed by the

Commissioner of Social Security. (Jan. 2, 2019, ECF No. 8.)

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear

claims based on the denial of Social Security benefits. Section 405(g) provides

that the District Court “shall have the power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing the

decision of the Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g) (2007). It directs that when

considering a claim, the Court must accept the findings of fact made by the

Commissioner, provided that such findings are supported by substantial

evidence in the record. 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

(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the

Commissioner’s findings, the Court must “examine the entire record, including

contradictory evidence and evidence from which conflicting inferences can be

drawn.” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v.

Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curium)). Section 405(g) limits

the scope of the Court’s review to two inquiries: whether the Commissioner’s

findings were supported by substantial evidence in the record, and whether

the Commissioner’s conclusions are based upon an erroneous legal

standard. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see

also Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a

benefits case de novo).

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:

(1) whether the claimant is currently engaged in substantial

gainful activity;

(2) if not, whether the claimant has any “severe impairment”

that “significantly limits [the claimant’s] physical or mental

ability to do basic work activities”;

(3) 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;

(4) if not, whether despite the claimant’s severe impairments,

the claimant retains the residual functional capacity [(“RFC”)] to

perform his past work; and

(5) if not, whether the claimant retains the [RFC] 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, 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 377, 383 (2d Cir. 2004) (quoting Balsamo

v. Chater, 142 F.3d 75, 80 (2d Cir. 1998)).

ANALYSIS

Plaintiff raises two issues for the Court’s review. First, she asserts that

the Commissioner relied upon gaps in the record when denying her benefits

and that the ALJ failed to fulfill her obligation to develop the record. (Plaintiff’s

Mem. of Law at 1, Mar. 3, 2019, ECF No. 9-1.) In connection with this

argument, Plaintiff contends that the Appeals Council also failed to consider

evidence that would have cured a gap in the record. (Id.) Second, Plaintiff

asserts that there was not substantial evidence to support the ALJ’s RFC

finding because the ALJ failed to properly weigh the medical opinions. (Id.)

The ALJ failed to fulfill her obligation to develop the record and,

therefore, her RFC decision was not supported by substantial evidence.

It is well-settled that an ALJ is statutorily required to develop a

plaintiff’s “complete medical history, including arranging for a consultative

examination(s) if necessary, and making every reasonable effort to help [the

plaintiff] get medical reports from [the plaintiff's] own medical sources.” 20

C.F.R. § 416.945 (emphasis added); Villa v. Colvin, No. 1:14-CV-00463, 2016

WL 1054757, at *4 (W.D.N.Y. Mar. 17, 2016) (“[a]lthough a claimant is

generally responsible for providing evidence upon which to base an RFC

assessment, before the Administration makes a disability determination, the

ALJ is responsible for developing [the claimant’s] complete medical history . .

. ”) (internal quotations and citations omitted.) The Code of Federal

Regulations provides that “[e]very reasonable effort means that we will make

an initial request for evidence from your medical source or entity that

maintains your medical source’s evidence, and, at any time between 10 and 20

calendar days after the initial request, if the evidence has not been received,

we will make one follow-up request to obtain the medical evidence necessary

to make a determination.” 20 C.F.R. § 416.912.

Plaintiff contends that the ALJ “relied upon obvious gaps in the record

to deny Plaintiff’s benefits” and failed to “meet her affirmative duty to develop

the record.” (Pl.’s Mem. of Law at 13.) In particular, during the hearing on April

12, 2017, the ALJ stated that she “noticed a reference in the record to an MRI

being performed, but I have no record of that.” (R. 47.) The ALJ asked where

the MRI was performed and Plaintiff responded, “Borg & Ide Imaging, or

something like that, B&I Imaging.” (R. 48.) The ALJ then stated that she would

“really like to see [the] results [of the MRI].” (R. 48.) Plaintiff’s representative

indicated that he could try to obtain a copy of the MRI and the ALJ stated that

she wanted an update on the status of the MRI. (R. 48.) At the conclusion of

the hearing, the ALJ noted that she would leave the case open for a week, that

she “really would like to see the MRI results,” and that she would issue a

subpoena to obtain the MRI if necessary. (R.56–57.) While the Commissioner

argues otherwise, the Court credits Plaintiff’s assertion that the MRI was

submitted to the ALJ on May 9, 2017, over a week before the ALJ issued the

decision, as the facsimile cover page contains that date at the top (R. 29.)

Despite this, the ALJ did not consider the MRI when rendering her decision.

(see, e.g., R. 18 (“the record includes no MRI of the spine despite claimant’s

significant allegations.”)

Thereafter, Plaintiff submitted the MRI to the Appeals Council, which

it acknowledged constituted “Additional Evidence.” (R. 2.) In correspondence

dated June 1, 2018, the Appeals Counsel denied Plaintiff’s request for a review

of the ALJ’s decision. (R. 1.) In the denial letter, the Appeals Council

confusingly states: “You submitted evidence from Borg and Ide Imaging, dated

October 22, 2014 (3 pages). We find this evidence does not show a reasonable

probability that it would change the outcome of the decision. We did not

consider and exhibit this evidence.” (R. 2 (emphasis added).)

The ALJ cannot credibly make a claim that she was not aware that the

MRI existed given that she expressed on the record her desire to review it.

There is no indication in the ALJ’s decision as to why the MRI was not

considered nor any indication in the record that the ALJ made any attempt to

obtain the MRI that she stated she “really would like to see.” Based upon the

forgoing, the ALJ’s RFC was not supported by substantial evidence because

there were obvious gaps in the record. Rosa v. Callahan, 168 F.3d 72, 82-83 (2d

Cir. 1999) (remanding where there were gaps in the record due to the ALJ’s

failure to sufficiently develop the record); Davis v. Colvin, No. 15-CV-479-MJR,

2016 WL 4708515, *8 (W.D.N.Y., Sept. 9, 2016) (“Given the significance of the

missing records . . . the ALJ should have tried to obtain the records on his own

after not hearing from [Plaintiff’s] counsel. By not doing so, the ALJ created a

gap in the record that necessitates remand.”); see also, Burgess v. Astrue, 537

F.3d 117, 131 (2d Cir. 2008) (finding that the ALJ failed to recognize that the

MRI was in the record and thus the ALJ failed to consider it and noting that

the ALJ had a duty to develop the record even if the MRI had not been in the

record.)

Moreover, it is not even clear if the Appeals Council reviewed the MRI

given the confusing language contained in its decision. The Commissioner’s

speculation that the Appeals Council “had to at least review and assess” the

MRI to determine if it was material evidence is insufficient. (Commissioner’s

Mem. of Law at 9, May 2, 2019, ECF No. 11-1.) Importantly, the Commissioner

does not assert that the Appeals Council actually did review the MRI. It

appears that neither the ALJ nor the Appeals Council considered the MRI –

both having had the opportunity to do so – which, given Plaintiff’s assertion of

disability based upon degenerative disc disease and “bad wear and tear on disc

and nerves in Plaintiff’s back” (R. 174.), creates an obvious gap in the record.

For this reason, the ALJ’s RFC determination is not supported by substantial

evidence.

The forgoing errors require reversal and remand. Since remand is

required, the Court need not address the other argument advanced by Plaintiff

in support of her motion.

CONCLUSION

For the foregoing reasons, Plaintiff's motion for judgment on the

pleadings (ECF No. 9) is granted and the Commissioner’s motion for judgment

on the pleadings (ECF No. 11) is denied. This matter is remanded pursuant

to the fourth sentence of 42 U.S.C. § 405(g) for an expedited hearing. The Clerk

of the Court is directed to enter judgment in Plaintiff's favor and close this

case.

IT IS SO ORDERED.

DATED: February 29, 2020

Rochester, New York |

MARK W. PEDERSEN

United States Magistrate Judge