1 16-3421 Guillen v. Berryhill

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRON IC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
27 th day of September, two thousand seventeen.

Present: JON O. NEWMAN, GUIDO CALABRESI, ROSEMARY S. POOLER, Circuit Judges

.

_____________________________________________________

KAREN M. GUILLEN,

Plaintiff-Appellant

,

v. 16-3421

NANCY A. BERRYHILL 1 , ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee

.

_____________________________________________________
Appearing for Appellant: Carolyn A. Kubitsch ek, Lansner & Kubitschek, New York, N.Y.

Appearing for Appellee: Rebecca H. Estelle, Special Assistant U.S. Attorney (Marc H. Silverman, Assistant United States Attorney, on the brief ), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT

1 Nancy A. Berryhill is automatically substituted as the respondent in this case pursuant to Federal Rule of Appellate Procedure 43(c)(2).2 Appeal from the United States District Cour t for the District of Connecticut (Covello, J. ).

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is VACATED and
REMANDED

.

Karen M. Guillen appeals from the August 31, 2016 judgment of the United States
District Court for the District of Connecticut denying her motion to reverse or remand the
decision of the Commissioner of the Social Secu rity Administration denying her applications for supplemental security income benefits and suppl emental security income benefits and granting
the motion of the Commissioner for an order a ffirming her decision. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

When this Court reviews the Commissioner’s de nial of Social Security benefits, “our
focus is not so much on the district court’s ruling as it is on the administrative ruling.” Brault v. Soc. Sec. Admin., Comm’r , 683 F.3d 443, 447 (2d Cir. 2012) (citat ion omitted). “[I]t is not our
function to determine de novo whet her a plaintiff is disabled.” Id . Rather, “‘we conduct a plenary
review of the administrative record to determine if there is subs tantial evidence, considering the record as a whole, to support th e Commissioner’s decision and if th e correct legal standards have been applied.’” Id . (quoting Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009)).

Guillen argues that the administrative law judge failed to adequately develop the record below. We agree. “[W]here there are deficienci es in the record, an ALJ is under an affirmative obligation to develop a claimant’s medical hist ory even when the claimant is represented by counsel or by a paralegal.” Rosa v. Callahan , 168 F.3d 72, 79 (2d Cir.1999) (internal alterations and quotation marks omitted). The ALJ’s duty to develop the record refl ects “the essentially non-adversarial nature of a benefits proceeding.” Pratts v. Chater , 94 F.3d 34, 37 (2d Cir. 1996). Where, as here, the claimant proceeds pr o se, “the ALJ’s duties are heightened.” Moran v.
Astrue , 569 F.3d 108, 113 (2d Cir. 2009) (internal quot ation marks omitted). “The ALJ must adequately protect a pro se claimant’s rights by ensuring that all of the relevant facts are sufficiently developed and considered and by sc rupulously and conscientiously probing into, inquiring of, and exploring for all the relevant facts.” Id . (internal quotation marks and brackets omitted). However, “where there are no obvious gaps in the administrative record, and where the ALJ already possesses a complete medical hist ory, the ALJ is under no obligation to seek
additional information in advance of rejecting a benefits claim.” Rosa , 168 F.3d at 79 n.5 (internal quotation marks omitted). An ALJ’s failure to develop the record warrants remand. See
id. at 79–80.

Here, the ALJ failed to obtain a medical source statement from Guillen’s treating physician, or to encourage Guillen to do so hers elf. The Commissioner argues such a statement was twice requested but never received, and that in any event, remand for a treating physician’s report “is not always required when an ALJ fails in his duty to request opinions, particularly
where . . . the record contains sufficient eviden ce from which an ALJ can assess the petitioner’s residual functional capacity.” Tankisi v. Comm’r of Soc. Sec. , 521 Fed. App’x 29, 34 (2d Cir. 2013). Unlike Tankisi , the medical records obtained by the ALJ do not shed any light on Guillen’s residual functional capacity, and the consulting doctors did not personally evaluate3 Guillen. The medical records discuss her illnesse s and suggest treatment for them, but offer no insight into how her impairments affect or do not affect her abili ty to work, or her ability to undertake her activities of everyda y life. The ALJ relied on this absence when noting that “no physician has opined that the claimant is disabled.” Admin. R. at 14. As Guillen argues, it is, at a minimum, unclear from the record whether Guillen’s treating physician understood that the ALJ was seeking an answer to that question. Ind eed, it is unclear from the record that such a request was even made.

The ALJ also improperly rejected the trea ting physician’s diagnosis of lupus. The ALJ states that “while this diagnosis was noted as a possibility, the medical record contains no formal diagnosis or treatment for this impairment.” Admin. R. at 12. This statement is at odds with the diagnosis of lupus set forth in the medical records provided by th e treating physician. It is wellsettled that “the opinion of a clai mant’s treating physician as to the nature and severity of the impairment is given controlling weight so l ong as it is well-supporte d by medically acceptable clinical and laboratory di agnostic techniques and is not incons istent with the other substantial
evidence in the case record.” Burgess v. Astrue , 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks and brackets omitted). Further, give n “the ALJ’s affirmative duty to develop the administrative record, an ALJ cannot reject a treating physician’s di agnosis without first attempting to fill any clear gaps in the administrative record,” id. , and then proceeding to “carefully weigh” that record. Id. (internal quotation marks omitted).

We thus vacate the decision of the district court and remand to the district court with
instructions to remand the matter to the Commi ssioner for further proceedings consistent with this order, including directing the Commissioner to (1) provide a new administrative law judge to consider Guillen’s application; (2) request a medical source statement from Guillen’s treating physician, including an assessment of Guillen’s limitati ons vis-à-vis her ability to work; as well as a clarification of the putative lupus diagnosis ; (3) allow Guillen to supp lement the record with any additional relevant medical records; (4) reassess Guillen’ s credibility in light of any newly obtained relevant information; (5 ) reassess Guillen’s residual func tional capacity in light of the expanded record; and (6) if warranted by the expa nded record, obtain eviden ce from a vocational expert to clarify the effect of the assessed li mitations on the claimant’s occupational choices. Accordingly, the judgment of the district court hereby is VACATED and this matter REMANDED for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk