United States District Court, D. Connecticut
RULING RE: MOTION TO REVERSE THE DECISION OF THE
COMMISSIONER (DOC. NO. 21) & MOTION TO AFFIRM THE
DECISION OF THE COMMISSIONER (DOC. NO. 26)
C. Hall Janet C. Hall United States District Judge
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).
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.
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
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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.
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).
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
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.
Duty to Develop the Record
Missing Records from Fair Haven, Catholic Charities, and
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)).
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 ...