21-1935-cv Krystal Rivers v. Kilolo Kijakazi
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 ELECTRONIC 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 14th day of March, two thousand twenty-three. 4 5 Present: 6 JOHN M. WALKER, JR., 7 BARRINGTON D. PARKER, JR., 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 KRYSTAL RIVERS, 13 14 Plaintiff-Appellant, 15 16 v. 21-1935-cv 17 18 KILOLO KIJAKAZI, Acting Commissioner 19 of Social Security, 20 21 Defendant-Appellee. 22 _______________________________ 23 24 For Plaintiff-Appellant: MARK SCHNEIDER, 25 Plattsburgh, NY. 26 27 For Defendant-Appellee: CANDACE H. LAWRENCE, Special Assistant United 28 States Attorney (Michael J. Pelgro, Regional Chief 29 Counsel – Region I, Office of the General Counsel of 30 the Social Security Administration, on the brief), for
1 1 Carla B. Freedman, United States Attorney for the 2 Northern District of New York, Boston, MA.
3 Appeal from the United States District Court for the Northern District of New York
4 (Lovric, M.J.).
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
6 DECREED that the judgment of the district court is VACATED AND REMANDED.
7 Plaintiff-Appellant Krystal Rivers filed an application pro se for Supplemental Security
8 Income (“SSI”) on October 4, 2016, based on a claimed limited ability to work due to a spinal
9 injury and mental health issues—including a substance abuse disorder, depression, and anxiety.
10 After her claim was initially denied, Rivers appealed and the matter was assigned to an
11 administrative law judge (“ALJ”). Although the ALJ found that Rivers had severe impairments
12 that significantly limited her ability to perform basic work activities, he ruled against her,
13 reasoning that the medical records before him showed that Rivers was able to work sufficiently
14 and thus was not disabled in a manner that qualified her for SSI. Rivers filed suit in district court
15 against the Commissioner of Social Security, challenging the ALJ’s decision, and the United States
16 Magistrate Judge assigned to the matter affirmed the ALJ’s decision. We assume the parties’
17 familiarity with the underlying facts, procedural history, and issues and arguments on appeal.
18 On review of a “denial of Social Security benefits, our focus is not so much on the district
19 court’s ruling as it is on the administrative ruling.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d
20 443, 447 (2d Cir. 2012) (internal quotation marks omitted). “[I]t is not our function to determine
21 de novo whether a plaintiff is disabled.” Id. (alteration marks omitted). Rather, “we conduct a
22 plenary review of the administrative record to determine if there is substantial evidence,
23 considering the record as a whole, to support the Commissioner’s decision and if the correct legal
24 standards have been applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal
2 1 quotation marks omitted).
2 Rivers argues that the ALJ failed to adequately develop the administrative record. We
3 agree.
4 “[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to
5 develop a claimant’s medical history even when the claimant is represented by counsel or by a
6 paralegal.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (alterations and internal quotation
7 marks omitted). The ALJ’s duty to develop the record reflects “the essentially non-adversarial
8 nature of a benefits proceeding.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal
9 quotation marks omitted). Where, as here, the claimant proceeds pro se, “the ALJ’s duties are
10 heightened.” Moran, 569 F.3d at 113 (internal quotation marks omitted). “The ALJ must
11 adequately protect a pro se claimant’s rights by ensuring that all of the relevant facts are
12 sufficiently developed and considered and by scrupulously and conscientiously probing into,
13 inquiring of, and exploring for all the relevant facts.” Id. (alteration marks and internal quotation
14 marks omitted). However, “where there are no obvious gaps in the administrative record, and
15 where the ALJ already possesses a complete medical history, the ALJ is under no obligation to
16 seek additional information in advance of rejecting a benefits claim.” Rosa, 168 F.3d at 79 n.5
17 (internal quotation marks omitted). An ALJ’s failure to develop the record warrants remand.
18 See id. at 79–80.
19 For claims filed prior to March 27, 2017, like this one, the ALJ’s findings of fact are
20 constrained by “the treating physician rule.” Colgan v. Kijakazi, 22 F.4th 353, 359 & 359 n.2
21 (2d Cir. 2022) (citing 20 C.F.R. § 404.1527(c)(2)). “The treating physician rule, as its name
22 connotes, states that the medical opinion of a claimant’s treating physician must be given
23 ‘controlling weight’ if it ‘is well-supported by medically acceptable clinical and laboratory
3 1 diagnostic techniques and is not inconsistent with the other substantial evidence in the case
2 record.’” Id. at 359–60 (quoting Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)).
3 Here, the ALJ was on notice that Rivers had three treating physicians who had treated her
4 for her spinal injury and back pain, and that Rivers had seen one of the three, Dr. Bonnabesse, as
5 recently as a few weeks prior to her 2019 hearing before the ALJ. The ALJ, however, did not
6 contact any of these treating physicians for their medical opinion on the extent to which Rivers’s
7 spinal injury impacted her ability to function. This failure to develop the record is legal error.
8 Moran, 569 F.3d at 113. Indeed, the ALJ had before him a 2014 report from Dr. Bonnabesse
9 stating that Rivers was “classified with a 75% temporary marked partial disability with
10 restrictions” on her ability to move, Special App’x 16, and he knew that Dr. Bonnabesse had
11 thought Rivers’s condition had only gotten worse: Rivers testified that Dr. Bonnabesse advised
12 her to apply for SSI because, after a recommended spinal surgery increased her back pain, he told
13 her that he did not know what else he could do to help her. Under these circumstances, the ALJ
14 should have contacted Dr. Bonnabesse for his opinion on the extent to which Rivers’s back pain
15 impeded her ability to work. See Moran, 593 F.3d at 113; see also, e.g., Guillen v. Berryhill, 697
16 F. App’x 107, 108–09 (2d Cir.
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21-1935-cv Krystal Rivers v. Kilolo Kijakazi
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 ELECTRONIC 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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3 14th day of March, two thousand twenty-three. 4 5 Present: 6 JOHN M. WALKER, JR., 7 BARRINGTON D. PARKER, JR., 8 EUNICE C. LEE, 9 Circuit Judges. 10 _____________________________________ 11 12 KRYSTAL RIVERS, 13 14 Plaintiff-Appellant, 15 16 v. 21-1935-cv 17 18 KILOLO KIJAKAZI, Acting Commissioner 19 of Social Security, 20 21 Defendant-Appellee. 22 _______________________________ 23 24 For Plaintiff-Appellant: MARK SCHNEIDER, 25 Plattsburgh, NY. 26 27 For Defendant-Appellee: CANDACE H. LAWRENCE, Special Assistant United 28 States Attorney (Michael J. Pelgro, Regional Chief 29 Counsel – Region I, Office of the General Counsel of 30 the Social Security Administration, on the brief), for
1 1 Carla B. Freedman, United States Attorney for the 2 Northern District of New York, Boston, MA.
3 Appeal from the United States District Court for the Northern District of New York
4 (Lovric, M.J.).
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
6 DECREED that the judgment of the district court is VACATED AND REMANDED.
7 Plaintiff-Appellant Krystal Rivers filed an application pro se for Supplemental Security
8 Income (“SSI”) on October 4, 2016, based on a claimed limited ability to work due to a spinal
9 injury and mental health issues—including a substance abuse disorder, depression, and anxiety.
10 After her claim was initially denied, Rivers appealed and the matter was assigned to an
11 administrative law judge (“ALJ”). Although the ALJ found that Rivers had severe impairments
12 that significantly limited her ability to perform basic work activities, he ruled against her,
13 reasoning that the medical records before him showed that Rivers was able to work sufficiently
14 and thus was not disabled in a manner that qualified her for SSI. Rivers filed suit in district court
15 against the Commissioner of Social Security, challenging the ALJ’s decision, and the United States
16 Magistrate Judge assigned to the matter affirmed the ALJ’s decision. We assume the parties’
17 familiarity with the underlying facts, procedural history, and issues and arguments on appeal.
18 On review of a “denial of Social Security benefits, our focus is not so much on the district
19 court’s ruling as it is on the administrative ruling.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d
20 443, 447 (2d Cir. 2012) (internal quotation marks omitted). “[I]t is not our function to determine
21 de novo whether a plaintiff is disabled.” Id. (alteration marks omitted). Rather, “we conduct a
22 plenary review of the administrative record to determine if there is substantial evidence,
23 considering the record as a whole, to support the Commissioner’s decision and if the correct legal
24 standards have been applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal
2 1 quotation marks omitted).
2 Rivers argues that the ALJ failed to adequately develop the administrative record. We
3 agree.
4 “[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to
5 develop a claimant’s medical history even when the claimant is represented by counsel or by a
6 paralegal.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (alterations and internal quotation
7 marks omitted). The ALJ’s duty to develop the record reflects “the essentially non-adversarial
8 nature of a benefits proceeding.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (internal
9 quotation marks omitted). Where, as here, the claimant proceeds pro se, “the ALJ’s duties are
10 heightened.” Moran, 569 F.3d at 113 (internal quotation marks omitted). “The ALJ must
11 adequately protect a pro se claimant’s rights by ensuring that all of the relevant facts are
12 sufficiently developed and considered and by scrupulously and conscientiously probing into,
13 inquiring of, and exploring for all the relevant facts.” Id. (alteration marks and internal quotation
14 marks omitted). However, “where there are no obvious gaps in the administrative record, and
15 where the ALJ already possesses a complete medical history, the ALJ is under no obligation to
16 seek additional information in advance of rejecting a benefits claim.” Rosa, 168 F.3d at 79 n.5
17 (internal quotation marks omitted). An ALJ’s failure to develop the record warrants remand.
18 See id. at 79–80.
19 For claims filed prior to March 27, 2017, like this one, the ALJ’s findings of fact are
20 constrained by “the treating physician rule.” Colgan v. Kijakazi, 22 F.4th 353, 359 & 359 n.2
21 (2d Cir. 2022) (citing 20 C.F.R. § 404.1527(c)(2)). “The treating physician rule, as its name
22 connotes, states that the medical opinion of a claimant’s treating physician must be given
23 ‘controlling weight’ if it ‘is well-supported by medically acceptable clinical and laboratory
3 1 diagnostic techniques and is not inconsistent with the other substantial evidence in the case
2 record.’” Id. at 359–60 (quoting Estrella v. Berryhill, 925 F.3d 90, 95 (2d Cir. 2019)).
3 Here, the ALJ was on notice that Rivers had three treating physicians who had treated her
4 for her spinal injury and back pain, and that Rivers had seen one of the three, Dr. Bonnabesse, as
5 recently as a few weeks prior to her 2019 hearing before the ALJ. The ALJ, however, did not
6 contact any of these treating physicians for their medical opinion on the extent to which Rivers’s
7 spinal injury impacted her ability to function. This failure to develop the record is legal error.
8 Moran, 569 F.3d at 113. Indeed, the ALJ had before him a 2014 report from Dr. Bonnabesse
9 stating that Rivers was “classified with a 75% temporary marked partial disability with
10 restrictions” on her ability to move, Special App’x 16, and he knew that Dr. Bonnabesse had
11 thought Rivers’s condition had only gotten worse: Rivers testified that Dr. Bonnabesse advised
12 her to apply for SSI because, after a recommended spinal surgery increased her back pain, he told
13 her that he did not know what else he could do to help her. Under these circumstances, the ALJ
14 should have contacted Dr. Bonnabesse for his opinion on the extent to which Rivers’s back pain
15 impeded her ability to work. See Moran, 593 F.3d at 113; see also, e.g., Guillen v. Berryhill, 697
16 F. App’x 107, 108–09 (2d Cir. 2017) (vacating denial of SSI where ALJ “failed to obtain a medical
17 source statement from [pro se claimant]’s treating physician, or to encourage [pro se claimant] to
18 do so herself,” where the medical records did not opine on how claimant’s “impairments affect or
19 do not affect her ability to work”); Umansky v. Apfel, 7 F. App’x 124, 127 (2d Cir. 2001) (vacating
20 and remanding for failure “to develop the record” with material on “residual functional capacity”
21 because “the ALJ should have contacted” the clinic where pro se claimant had been treated).
22 Furthermore, in reviewing an ALJ’s findings, we assess whether “substantial evidence lies
23 in support of the ALJ’s determination.” Colgan, 22 F.4th at 359. “[T]he substantial evidence
4 1 standard is also not merely hortatory: It requires relevant evidence which would lead a ‘reasonable
2 mind’ to concur in the ALJ’s factual determinations.” Id. (quoting McIntyre v. Colvin, 758 F.3d
3 146, 149 (2d Cir. 2014)). We take this approach in assessing how an ALJ considers “internal
4 inconsistencies” in the medical records before him. See id. at 362. Here, the ALJ’s rejection of
5 Rivers’s disability claim appears to rely in large part on an internally inconsistent report from a
6 consulting physician hired by the Social Security Administration to assess Rivers’s functional
7 capacity. The consulting physician’s report says Rivers “was unable to stand and walk on heels
8 and toes. She was unable to squat. Can walk on heels and toes without difficulty. Squat full.”
9 Record on Appeal 1255. Despite this plain contradiction, the ALJ gave this “opinion . . . some
10 weight” and read it as supporting the conclusion that Rivers is “less restricted” by her disability
11 because it found she “was able to walk on heels and toes.” Special App’x 17. The ALJ provides
12 no explanation of why he gave preference to the part of the report cutting against Rivers’s claim
13 over the preceding sentences that would support her claim. Faced with such an obviously
14 contradictory medical opinion like this, the ALJ should have either sought clarification from the
15 consulting physician or, at minimum, given a cogent explanation in support of his reading of the
16 opinion.
17 Finally, an “ALJ cannot arbitrarily substitute his own judgment for competent medical
18 opinion.” Rosa, 168 F.3d at 79 (internal quotation marks omitted); see also Gavazzi v. Berryhill,
19 687 F. App’x 98, 100 (2d Cir. 2017) (citing Rosa and vacating and remanding). Here, the ALJ
20 did just that, as his rejection of Rivers’s claimed impairments relies heavily on what he viewed as
21 her “ability to perform . . . adequate activities of daily living,” including caring “for two small
22 children,” as well as his view that “claimant has not generally received the type of medical
23 treatment for her alleged back pain one would expect for a totally disabled individual.” Record
5 1 on Appeal 23. This is legal error. The ALJ had no competent medical opinion before him on
2 “the type of medical treatment . . . one would expect” of someone in Rivers’s claimed situation.
3 And the claim about Rivers’s “daily living” is an oddity: There is nothing inconsistent between
4 her claim of debilitating back pain and her taking care of her children, especially given that she
5 told the ALJ she “receive[s] assistance with childcare on a daily basis from her father, his girlfriend
6 and [her] aunt.” Id. at 16. Furthermore, the ALJ’s conclusion is at odds with the evidence that
7 Rivers’s medical condition impedes her ability to care for her family, such as how she cannot lift
8 her three-year-old child above her head.
9 ***
10 Accordingly, the judgment of the district court hereby is VACATED and this matter
11 REMANDED to the district court with instructions to remand the matter to the Commissioner for
12 further proceedings consistent with this order. In particular, the Commissioner should attempt to
13 further develop the administrative record regarding Rivers’s functional capacity.
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk