United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND
THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE
Michael P. Shea, U.S.D.J.
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.
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.
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).
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 with certain
functional limitations. (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.
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.
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).
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
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
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). 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 . . . .")
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 ...