Faussett v. Saul

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          Michael P. Shea, U.S.D.J.

         The plaintiff, Walter Faussett, brings this appeal under 42 U.S.C. § 405(g) from the Social Security Commissioner's denial of his application for Title II disability insurance benefits. The plaintiff moves to reverse the Commissioner's decision or alternatively remand for a new hearing. (ECF #44.) The Commissioner in turn moves to affirm the decision. (ECF #52.) For the reasons that follow, the plaintiff's motion to remand is granted and the defendant's motion to affirm is denied.

         I assume the parties' familiarity with Mr. Faussett's medical history (summarized in a stipulation of facts filed by the parties, ECF ##45 and 53, which I adopt and incorporate herein by reference), the ALJ's opinion, the record, and the five sequential steps used in the analysis of disability claims. I cite only those portions of the record and the legal standards necessary to explain this ruling.

         I. Legal Standard

         "A district court reviewing a final . . . decision pursuant to . . . 42 U.S.C. § 405(g), is performing an appellate function." Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). As such, the Commissioner's decision "may be set aside only due to legal error or if it is not supported by substantial evidence." Crossman v. Astrue, 783 F.Supp.2d 300, 302-03 (D. Conn. 2010). 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) (internal quotation marks and citation omitted). Substantial evidence is "more than a mere scintilla" and "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004).

         II. Background

         The plaintiff appeared pro se at the November 2016 administrative hearing. He testified that while working as a mason tender on a construction site, he injured his back and ankle. He subsequently suffered chronic pain and limitations in standing, lifting, walking, and sitting. (R. at 44, 46, 48, 49, 59.) The ALJ observed that medical records from many of the plaintiff's providers were missing. (R. at 35.) The ALJ explained that after the hearing, she would request the plaintiff's records from the various treaters. In March 2017, the ALJ sent the plaintiff a letter informing him that she had obtained additional evidence to enter into the record and attached the records. (R. at 213.) The ALJ advised the plaintiff that he could respond to the evidence and/or request a supplemental hearing. The letter went on to explain that if the plaintiff did not respond, the ALJ would "enter the new evidence in the record and issue [her] decision." (R. at 214.) The plaintiff did not respond. The ALJ thereafter supplemented the record with the records and on May 1, 2017, issued an unfavorable decision. Specifically, the ALJ found that the plaintiff suffered from lumbar degenerative disc disease with radiculopathy and tibial tendinosis of the left ankle, status post surgery, which, although severe, did not meet any of the listed impairments. (R. at 12-13.) The ALJ determined that the plaintiff retained the residual functional capacity ("RFC") to perform sedentary work^[2] with certain functional limitations.^[3] (R. at 14.) The ALJ concluded that the plaintiff was unable to perform his past relevant work as a construction masonry helper but found that there was other work that the plaintiff could perform. The ALJ therefore concluded that the plaintiff was not disabled.

         III. Discussion

         Among other things, the plaintiff argues that the case should be remanded for a new hearing because the ALJ failed to properly develop the administrative record. I agree.

         "Social Security proceedings are inquisitorial rather than adversarial." Sims v. Apfel, 530 U.S. 103, 110-11 (2000). "[T]he social security ALJ, unlike a judge in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation marks and citation omitted). "[W]hen the claimant is unrepresented, the ALJ is under a heightened duty to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts . . . ." Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990) (internal quotation marks and citations omitted).

         "Whether an ALJ has satisfied h[er] obligation to develop the record 'must be addressed as a threshold issue.'" Caruso v. Saul, No. 3:18CV1913(RMS), 2019 WL 5853527, at *4 (D. Conn. Nov. 8, 2019)(quoting Downes v. Colvin, No. 14-CV-7147(JLC), 2015 WL 4481088, at *12 (S.D.N.Y. July 22, 2015)). "Even if the ALJ's decision might otherwise be supported by substantial evidence, the Court cannot reach this conclusion where the decision was based on an incomplete record." Moreau v. Berryhill, No. 3:17CV396(JCH), 2018 WL 1316197, at *4 (D. Conn. Mar. 14, 2018) (internal quotation marks and citation omitted). See Alford v. Saul, __ F.Supp.3d __, 2019 WL 4744931, at *11 (D. Conn. Sept. 30, 2019)("An ALJ's ultimate conclusions might not change following adequate development of the record. Even so, a plaintiff is always entitled to a decision based on a fully developed record.")

         The plaintiff asserts that the ALJ erred in determining the plaintiff's RFC without the benefit of a medical source statement from any of the plaintiff's physicians regarding how his "impairments affect his ability to work." (ECF 44-1 at 7.) The defendant responds that the ALJ did not err because she "supplement[ed] the record in a manner within her discretion" and despite notice and opportunity, the plaintiff did not identify "deficiencies for the ALJ to address." (ECF 52-1 at 5.)

         A medical source statement is a statement about a claimant's "ability, despite . . . impairment(s), to do work-related activities such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling." 20 C.F.R. § 404.1513(c)(1)(2016).^[4] The Social Security Administration "will request a medical source statement about what you can still do despite your impairment(s)." 20 C.F.R. § 404.1513(b)(6)(2016). However, an ALJ's failure to obtain a medical source statement before making a disability determination does not require remand where "the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity." Tankisi v. Comm'r of Soc. Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013). See Swiantek v. Comm'r of Soc. Sec., 588 Fed.Appx. 82, 84 (2d Cir. 2015) ("[T]his Court does not always treat the absence of a medical source statement from claimant's treating physicians as fatal to the ALJ's determination . . . .")

         The court in Tankisi determined that remand was not warranted because the "medical record assembled by the claimant's counsel," although lacking "formal opinions on [the petitioner's] RFC from her treating physicians," contained "an assessment of [the petitioner's] limitations from a treating physician" sufficient to permit the ALJ to make an "informed finding." Tankisi, 521 Fed.Appx. at 34. But see Guillen v. Berryhill, 697 Fed.Appx. 107, 108-09 (2d Cir. 2017)(remand was warranted because "[u]nlike Tankisi, the medical records obtained by the ALJ do not shed any light on [the pro se claimant's] residual functional capacity . . . . The medical records discuss [the ...