Rivera v. Berryhill

          ORDER AFFIRMING THE COMMISSIONER'S DECISION

          Alvin W. Thompson, United States District Judge

         Plaintiff Gabriel Rivera appeals the Commissioner's final decision denying the plaintiff's application for supplemental security income (“SSI”) benefits pursuant to 42 U.S.C. § 405(g) of the Social Security Act.

         The plaintiff filed a motion for reversal or remand, contending that the Administrative Law Judge (“ALJ”) “1) failed to develop the record and to procure and exhibit evidence that was in the exclusive possession of the Social Security Administration; 2) failed to properly evaluate Mr. Rivera's credibility, citing factors attributable directly to his impairments and not to failures of credibility; and 3) failed to properly formulate Mr. Rivera's Residual Functional Capacity [(“RFC”)], leaving out several important factors.” Pl.'s Mem. to Reverse (“ECF No. 19-1”) at 2.

         The Commissioner filed a motion for an order affirming the Commissioner's decision, maintaining that “substantial evidence supports the Commissioner's final decision that Plaintiff was not disabled from his April 11, 2014 SSI application date through January 30, 2017, the date of the Commissioner's decision.” Def.'s Mot. to Affirm (“ECF No. 22”) at 1.

         For the reasons set forth below, the court concludes that the ALJ applied the correct legal principles and that the ALJ's findings are supported by substantial evidence. Thus, the Commissioner's final decision is being affirmed.

         I. Legal Standard

         “A district court reviewing a final [] decision . . . [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). The court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. See Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain whether the Commissioner applied the correct legal principles in reaching a conclusion and whether the decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be “more than a mere scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258. Absent legal error, this court may not set aside the decision of the Commissioner if it is supported by substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 42 U.S.C. § 405(g)(“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Thus, if the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. See Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

         II. Discussion

         A. Duty to Develop the Record

         1. The Prior SSI Claim Record

         The plaintiff contends that the ALJ had a duty to procure the plaintiff's prior SSI records because 1) “there exists evidence that shows Mr. Rivera's disabling conditions” and 2) “continued disability reviews during that time period showed continuing disabling impairments.” ECF No. 19-1 at 12.

         The defendant maintains that 1) the defendant's previous claim benefits were suspended in February 2010, over four years prior to filing the April 2014 SSI application; 2) SSI is only payable starting one month after the application is filed; and 3) the ALJ has discretion to determine whether evidence is adequate to make a disability determination and how best to resolve insufficiency. See ECF No. 22 at 5.

         The regulations state: “[W]e will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary . . . .” See 20 C.F.R. § 416.912(b)(1). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)). A “[c]omplete medical history means the records of your medical source(s) covering at least the 12 months preceding the month in which you file your application.” 20 C.F.R. § 416.912(b)(1)(ii). The ALJ has discretion to “determine the best way to resolve [an] inconsistency or insufficiency.” 20 C.F.R. § 416.920b(b)(2). Moreover, “the earliest month for which we can pay you benefits is the month following the month you filed the application”. 20 C.F.R. § 416.335. “[W]e cannot pay you for the month in which your application is filed or any months before that month.” Id.

         In DeChirico v. Callahan, 134 F.3d 1177 (2d Cir. 1998), the court held that the ALJ was not required to requisition or subpoena SSI records for a claim existing prior to incarceration where the plaintiff (1) “was represented by counsel at the administrative proceedings”, (2) “the fact of his impairment was not in dispute, ” and (3) “counsel offered no other reasons that the ten-year old file might be relevant” other than to state that “there is material in” the plaintiff's “previous file that may be useful to the present case.” DeChirico, 134 F.3d at 1177, 1179, 1183-85 (The Commissioner also relied “in part on Social Security Administration guidelines providing that ‘an ALJ May Not Need the Prior Claim File' when ‘[a]t least four years have elapsed between the date of the prior notice of initial determination and the date of the new application.' Social Security Administration Office of Hearings and Appeals, HALLEX: Hearings, Appeals and Litigation Law Manual [], I-2-110D (June 1994).”).

         Here, as in DeChirico, the plaintiff filed his application approximately four years after his previous benefits were discontinued due to incarceration. The plaintiff was represented by counsel as of December 2, 2015, five months prior to the administrative hearing held on May 4, 2016; only his limitations are disputed, not corresponding impairments; and the stated reason for obtaining the prior records is to demonstrate continuing disabling impairments during the prior claim period. The plaintiff fails to provide “a reason to believe that development of an earlier period is necessary” or point to an obvious gap in the record that precludes a fair determination in this case.

         Therefore, the court finds that the ALJ did not abuse his discretion on this issue, and the plaintiff's motion to reverse or remand on this ground is being denied.

         2. Dr. Perrino's Medical Source Statement

         The plaintiff contends that the ALJ should have obtained the medical source statement (“MSS”) mentioned in a December 10, 2014 treatment note by Dr. Phillip Perrino. The plaintiff notes 1) that counsel appeared one year later; 2) that it is unclear if or how the state agency examiner reviewed the MSS; and 3) that if the ALJ had the MSS, he needed to apply the factors to the doctor's opinion and seek a medical expert's clarification of the limiting effects of glaucoma and mental and intellectual effects if necessary. ECF No. 19-1 at 12-13.

         The defendant maintains 1) that it is unclear who asked Dr. Perrino to prepare the MSS; 2) that the ALJ satisfied his duty to develop the record by requesting Dr. Perrino's medical records and an MSS from Royal Vision Associates on January 8, 2015; 3) that the records were received on January 9, 2015, without the MSS; 4) that the burden of proving disability rests on the plaintiff; 5) that the plaintiff was represented by counsel as of December 2, 2015, and his counsel could have obtained the MSS and submitted it to the ALJ prior to the administrative hearing held on May 4, 2016, and also submitted it to both the Appeals Council and this court; and 6) that the record was adequate for, and substantial evidence supported, the ALJ's determination. See ECF No. 22 at 6-7.

         In Janes v. Berryhill, 710 Fed.Appx. 33, 34 (2d Cir. 2018), the court held that the ALJ was not required to develop the record further where evidence was “adequate for [the ALJ] to make a determination as to disability.” ...