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Cortes v. Berryhill

United States District Court, D. Connecticut

March 19, 2018

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


          Janet C. Hall Janet C. Hall United States District Judge


         Plaintiff Marybel Cortes (“Cortes”) brings this appeal under section 405(g) of title 42 of the United States Code from the final decision of the Commissioner of the Social Security Administration (“SSA”), which denied her application for Title II disability insurance benefits and Title XVI supplemental security income. See Complaint (“Compl.”) (Doc. No. 1). Cortes seeks either reversal or remand of the Decision rendered by Administrative Law Judge (“ALJ”) Richard A. DiBiccaro, which affirmed the Commissioner's denial. See Motion to Reverse the Decision of the Commissioner (“Mot. to Reverse”) (Doc. No. 21). The Commissioner cross-moves for an order affirming that Decision. See Motion to Affirm the Decision of the Commissioner (“Mot. to Affirm”) (Doc. No. 26).

         For the reasons set forth below, the Motion for Order to Reverse Final Decision of Commissioner is GRANTED. The Motion for Order Affirming the Commissioner's Decision is DENIED.


         Cortes applied for disability and supplemental security income benefits on April 4, 2008, alleging a disability onset date of January 31, 2006. See Mem. in Supp. of Mot. to Reverse the Decision of the Comm'r (“Pl.'s Mem.”) (Doc. No. 21-1) at 1. The Commissioner denied Cortes's application initially and upon reconsideration. See Id. Cortes requested a hearing with an ALJ, which was held before ALJ DiBiccaro on March 1, 2010. See id. On September 24, 2010, ALJ DiBiccaro issued an unfavorable decision for Cortes, affirming the Commissioner's denial and finding that Cortes was not disabled. See id. Cortes requested review by the Appeals Court, which denied the request. See id. After appeal to this court, the Commissioner moved to voluntarily remand the case under sentence four of section 405(g) of title 42 of the United States Code and judgment entered in Cortes's favor on September 19, 2012. See id.

         Cortes filed subsequent Title II and XVI claims on April 20, 2011, and April 29, 2013, which the Appeals Council consolidated with her earlier claims. See R. at 524. A hearing was held before ALJ DiBiccaro on March 18, 2015, followed by a supplemental hearing on June 29, 2015. See Pl.'s Mem. at 1. On October 29, 2015, ALJ DiBiccaro issued a second unfavorable decision. See id. By notice dated September 20, 2016, the Appeals Council refused to take jurisdiction, making ALJ DiBiccaro's October 29, 2015 decision a final decision reviewable by this court. See id. at 1-2. Cortes filed this appeal on November 18, 2016. See Compl.

         III. FACTS[2]

         Marybel Cortes was born in 1967, making her 50 at the time of this Ruling. See R. at 75. The Record in this case begins in 2002, when Cortes sought treatment at Fair Haven Community Health Center (“Fair Haven”) for relief from her asthma, back pain, and bilateral carpal tunnel syndrome (“CTS”). See Pl.'s Mem. at 2. In 2003 and 2004, Cortes continued attending appointments and received prescriptions for medication to help with her depression and anemia, along with her other conditions. See id. at 3. After Cortes's alleged onset date in 2006, the Record reflects a visit to Fair Haven for treatment for her asthma, followed by a two year gap in the Record during which she lived in Puerto Rico. See id. at 4.

         Cortes's next recorded treatment involved a visit to Community Health Services / Meriden Medical (“CHS”) in 2008, where she complained of depression and anemia. See id. Cortes continued her treatment for severe anemia due to menorrhagia and asthma and also began seeing a psychiatrist at CHS, who diagnosed her with major depression, post-traumatic stress disorder (“PTSD”), and obsessive-compulsive disorder (“OCD”). See id. at 5-6. Physicians recommended surgery to address Cortes's menorrhagia, but decided to wait for improvements in her asthma and sleep apnea. See id. at 14. Cortes finally had a hysterectomy in November 2012. See id. at 16.

         Cortes has struggled with cocaine use, along with abuse of prescription drugs such as Xanax. See id. at 12, 19. In November 2014, Cortes was hospitalized at Stonington Institute for addiction to crack cocaine, where she also admitted to being addicted to pain medication. See id. at 19. Cortes has attempted suicide four times. See id. at 19.


         Under section 405(g) of title 42 of the United States Code, it is not a function of the district court to review de novo the ALJ's decision as to whether the claimant was disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Instead, the court may only set aside an ALJ's determination as to social security disability if the decision “is based upon legal error or is not supported by substantial evidence.” Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence requires “more than a mere scintilla, ” but is a “very deferential standard of review.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447-48 (2d Cir. 2012). It requires “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 448. If the Commissioner's findings of fact are supported by substantial evidence, those findings are conclusive, and the court will not substitute its judgment for the Commissioner's. 42 U.S.C. § 405(g) (2016); see also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).

         V. DISCUSSION

         Cortes argues that ALJ DiBicarro's Decision should be reversed or remanded for four reasons. First, she argues that the ALJ erred when he did not give controlling weight to the 2009 or 2011 opinions of Cortes's treating physician, Dr. Danielle Butler. See Pl.'s Mem. at 31-34. Second, Cortes argues that the ALJ improperly evaluated the credibility of Cortes's statements regarding her symptoms. See id. at 37-39. Third, Cortes argues that the ALJ's decision “cherry-picked” the Record, leading to a decision that was not supported by substantial evidence. See id. at 34-37. Fourth, she argues that the vocational expert's testimony was baseless and that the ALJ committed legal error by relying on it. See id. at 24-31.

         Cortes does not argue that the ALJ committed legal error by failing to satisfy his duty to develop the record. However, the court cannot ignore the gap in the Record concerning Cortes's treatment for mental illness from February 2015 until the Record closed at the end of July 2015. See R. at 524, 1547. A court will not typically consider a non-jurisdictional issue that a party has failed to raise. See Hardiman v. Reynolds, 971 F.2d 500, 502 (1992). However, the claims process for Social Security benefits is nonadversarial and, on appeal, courts “conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision and if the correct legal standards have been applied.” See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). An ALJ commits legal error when he fails to fulfill his affirmative obligation to develop the administrative record. See Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999). Many courts have found that they may consider errors in benefits determinations that have not been raised. See, e.g., Farley v. Colvin, 231 F.Supp.3d 335, 339 (N.D. Cal. 2017) (“In this ‘beneficent' and ‘tolerant' context, there is no reason to treat the failure to raise an error as reason for actively ignoring it.”); Taylor-Tillotson v. Colvin, No. 13-80907-CIV-WM, 2014 WL 7211888, at *13 (S.D. Fl. Dec. 18, 2014) (“A reviewing court may sua sponte address issues in social security cases”); Mangan v. Colvin, No. 12 C 7203, 2014 WL 4267496, at *1 (N.D. Ill. Aug. 28, 2014) (same); Gravel v. Barnhart, 360 F.Supp.2d 442, 452 n.24 (N.D.N.Y. 2005) (noting additional issues that warrant remand sua sponte).

         Upon review of the Record, the court concludes that the ALJ erred by failing to adequately develop the record to obtain treatment notes from the Intensive Outpatient Program (“IOP”) Cortes participated in beginning in February 2015, updated Fair Haven records, and records from Cortes's hospitalization at Yale-New Haven Hospital in 2015.

         The ALJ also failed to develop the record by not requesting a treating physician opinion regarding Cortes's mental illness. Remand is therefore appropriate to obtain the missing records and a treating physician opinion with respect to Cortes's mental illness.

         A. Duty to Develop the Record

         1. Missing Records from Fair Haven, Catholic Charities, and Yale-New Haven

An ALJ in a Social Security benefits hearing has an affirmative obligation to develop the record adequately. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). Although this obligation is heightened where the plaintiff is pro se, see Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d Cir. 1982), the “non-adversarial nature” of Social Security benefits proceedings dictates that the obligation exists “even when . . . the claimant is represented by counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (“It is the rule in our circuit that ‘the ALJ, unlike a judge in a trial, must himself affirmatively develop the record' . . . .”) (quoting Echevarria, 685 F.2d at 755). Due to 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 Social Security, 651 F.3d 299, 305 (2d Cir. 2011) (quoting Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004)).

         During the hearing on March 18, 2015, Cortes explained that, after she was hospitalized at Stonington Institute in December 2014, she began receiving treatment three times a week and seeing a clinician one-on-one at an IOP at Catholic Charities. See R. at 1472, 1501-02. ALJ DiBiccaro asked Cortes's counsel, Allan B. Rubenstein, if Cortes's treatment at Catholic Charities was in the Record, to which Attorney Rubenstein replied that he did not have possession of Cortes's medical records after her hospitalization at Stonington. See R. at 1503. Before the close of the hearing on March 18, 2015, ALJ DiBiccaro said: “I want you to have the updated Catholic Charities records and that's important and I think that's ...

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