21-1203-cv Lundie v. 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.
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 19th day of April, two thousand twenty-two.
Present: DEBRA ANN LIVINGSTON, Chief Judge, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________
JOHN B. LUNDIE,
Plaintiff-Appellant,
v. 21-1203-cv
KILOLO KIJAKAZI, Acting Commissioner, Social Security Administration,
Defendant-Appellee. * _____________________________________
For Plaintiff-Appellant: John B. Lundie, pro se, Patchogue, NY.
For Defendant-Appellee: Varuni Nelson, Arthur Swerdloff, Paulina A. Stamatelos, Assistant United States Attorneys, for
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Commissioner Kilolo Kijakazi is automatically substituted for Defendant-Appellee.
1 Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Azrack, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the case is REMANDED to
the district court with instructions to remand to the Commissioner for further proceedings
consistent with this order.
Plaintiff-Appellant John Lundie (“Lundie”), proceeding pro se, appeals from a March 31,
2021 opinion and order of the district court, denying Lundie’s motion for appointment of counsel
and granting the motion of the Commissioner of Social Security (“Commissioner”) for judgment
on the pleadings, based on a finding that substantial evidence supported the determination by the
administrative law judge (“ALJ”) that Lundie was not disabled. Lundie sought review before the
district court of a final determination from the Commissioner, which denied his application for
Social Security disability insurance benefits based on memory and focus impairment. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
* * *
When this Court reviews the Commissioner’s denial 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) (per curiam) (citation and internal
quotation marks omitted). Where the district court’s judgment upholds the Commissioner’s
determination, we conduct a de novo review of the administrative record “‘to determine whether
there is substantial evidence supporting the Commissioner’s decision and whether the
2 Commissioner applied the correct legal standard.’” Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir.
2010) (quoting Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)).
Lundie argues that the ALJ failed to adequately develop the record below. We agree.
“[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop
a claimant’s medical history even when the claimant is represented by counsel or . . . by a
paralegal.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (citation and internal quotation
marks omitted). This duty reflects “the essentially non-adversarial nature of a benefits
proceeding.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citation and internal quotation
marks omitted). Where, as here, the claimant proceeds pro se, the ALJ’s duties are “heightened.”
Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). The ALJ must “adequately protect a pro se
claimant’s rights [by] . . . scrupulously and conscientiously prob[ing] into, inquir[ing] of, and
explor[ing] for all the relevant facts.” Id. (quoting Echevarria v. Sec’y of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982)) (internal quotation marks omitted). Accordingly, we
have held that “when a claimant appears pro se and is otherwise impaired, we must ‘make a
searching investigation of the record to make certain that the claimant’s rights have been
adequately protected.’” Moran v. Astrue, 569 F.3d 108, 113 (2d Cir. 2009) (quoting Cruz, 912
F.2d at 11); see Cruz, 912 F.2d at 11 (conducting a “searching investigation” of the record where
the claimant appeared “pro se, suffer[ed] ill health and [was] unable to speak English well”
(citation and internal quotation marks omitted)). An ALJ’s failure to adequately develop the
record warrants remand. See Rosa, 168 F.3d at 82–83.
The limited record herein reveals several missed opportunities to further develop the
relevant facts. For example, when the ALJ asked Lundie about his work history, Lundie
indicated that he had “retired” and “moved back in with [his] parents,” who were reluctant to help
3 him following a 2004 arrest and “involuntary commitment,” at which point he was “heavily
medicated.” A.R. 46. Lundie’s 2004 involuntary commitment is also reflected in his medical
records from Brookhaven Memorial Hospital Medical Center, where he underwent psychiatric
treatment in 2014. A.R. 205. These records indicate that Lundie was “treated with Abilify,” an
antipsychotic medication, “at Greenport Hospital back in 2004 for few months.” A.R. 205. The
ALJ, however, failed to request medical records from Greenport Hospital, or to explore the
circumstances that led to Lundie’s 2004 hospitalization. The ALJ also did not contact Lundie’s
parents, who the record indicates would likely have firsthand knowledge of Lundie’s medical
condition. Evidence relating to Lundie’s 2004 hospitalization and subsequent treatment may
have significance for his claim of disability for the period of November 2006 through December
2011.
The ALJ’s failure to probe the relevant facts is especially concerning given that the ALJ
was presented with documentary and testimonial evidence that Lundie suffers from cognitive
impairments. See Chapman v.
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21-1203-cv Lundie v. 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.
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 19th day of April, two thousand twenty-two.
Present: DEBRA ANN LIVINGSTON, Chief Judge, GERARD E. LYNCH, RAYMOND J. LOHIER, JR., Circuit Judges. _____________________________________
JOHN B. LUNDIE,
Plaintiff-Appellant,
v. 21-1203-cv
KILOLO KIJAKAZI, Acting Commissioner, Social Security Administration,
Defendant-Appellee. * _____________________________________
For Plaintiff-Appellant: John B. Lundie, pro se, Patchogue, NY.
For Defendant-Appellee: Varuni Nelson, Arthur Swerdloff, Paulina A. Stamatelos, Assistant United States Attorneys, for
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Commissioner Kilolo Kijakazi is automatically substituted for Defendant-Appellee.
1 Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District of New
York (Azrack, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and the case is REMANDED to
the district court with instructions to remand to the Commissioner for further proceedings
consistent with this order.
Plaintiff-Appellant John Lundie (“Lundie”), proceeding pro se, appeals from a March 31,
2021 opinion and order of the district court, denying Lundie’s motion for appointment of counsel
and granting the motion of the Commissioner of Social Security (“Commissioner”) for judgment
on the pleadings, based on a finding that substantial evidence supported the determination by the
administrative law judge (“ALJ”) that Lundie was not disabled. Lundie sought review before the
district court of a final determination from the Commissioner, which denied his application for
Social Security disability insurance benefits based on memory and focus impairment. We
assume the parties’ familiarity with the underlying facts, the procedural history of the case, and
the issues on appeal.
* * *
When this Court reviews the Commissioner’s denial 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) (per curiam) (citation and internal
quotation marks omitted). Where the district court’s judgment upholds the Commissioner’s
determination, we conduct a de novo review of the administrative record “‘to determine whether
there is substantial evidence supporting the Commissioner’s decision and whether the
2 Commissioner applied the correct legal standard.’” Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir.
2010) (quoting Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002)).
Lundie argues that the ALJ failed to adequately develop the record below. We agree.
“[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop
a claimant’s medical history even when the claimant is represented by counsel or . . . by a
paralegal.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (citation and internal quotation
marks omitted). This duty reflects “the essentially non-adversarial nature of a benefits
proceeding.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (citation and internal quotation
marks omitted). Where, as here, the claimant proceeds pro se, the ALJ’s duties are “heightened.”
Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). The ALJ must “adequately protect a pro se
claimant’s rights [by] . . . scrupulously and conscientiously prob[ing] into, inquir[ing] of, and
explor[ing] for all the relevant facts.” Id. (quoting Echevarria v. Sec’y of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982)) (internal quotation marks omitted). Accordingly, we
have held that “when a claimant appears pro se and is otherwise impaired, we must ‘make a
searching investigation of the record to make certain that the claimant’s rights have been
adequately protected.’” Moran v. Astrue, 569 F.3d 108, 113 (2d Cir. 2009) (quoting Cruz, 912
F.2d at 11); see Cruz, 912 F.2d at 11 (conducting a “searching investigation” of the record where
the claimant appeared “pro se, suffer[ed] ill health and [was] unable to speak English well”
(citation and internal quotation marks omitted)). An ALJ’s failure to adequately develop the
record warrants remand. See Rosa, 168 F.3d at 82–83.
The limited record herein reveals several missed opportunities to further develop the
relevant facts. For example, when the ALJ asked Lundie about his work history, Lundie
indicated that he had “retired” and “moved back in with [his] parents,” who were reluctant to help
3 him following a 2004 arrest and “involuntary commitment,” at which point he was “heavily
medicated.” A.R. 46. Lundie’s 2004 involuntary commitment is also reflected in his medical
records from Brookhaven Memorial Hospital Medical Center, where he underwent psychiatric
treatment in 2014. A.R. 205. These records indicate that Lundie was “treated with Abilify,” an
antipsychotic medication, “at Greenport Hospital back in 2004 for few months.” A.R. 205. The
ALJ, however, failed to request medical records from Greenport Hospital, or to explore the
circumstances that led to Lundie’s 2004 hospitalization. The ALJ also did not contact Lundie’s
parents, who the record indicates would likely have firsthand knowledge of Lundie’s medical
condition. Evidence relating to Lundie’s 2004 hospitalization and subsequent treatment may
have significance for his claim of disability for the period of November 2006 through December
2011.
The ALJ’s failure to probe the relevant facts is especially concerning given that the ALJ
was presented with documentary and testimonial evidence that Lundie suffers from cognitive
impairments. See Chapman v. ChoiceCare Long Island Term Disability Plan, 288 F.3d 506, 514
(2d Cir. 2002) (noting that “it is self-evident that courts should exercise an extra measure of caution
when adjudicating the claims of a litigant whose mental capacity is in question”). For example,
Lundie testified to having “become extremely forgetful,” A.R. 41, and, in response to questions
from the ALJ about his living situation and work and medical history, answered, “I don’t remember
this any. . . . [T]he difficulty that I’m having is in forming memories,” A.R. 44. The Brookhaven
Hospital medical records also indicate that Lundie has been diagnosed with schizophrenia. A.R.
206. Accordingly, given that Lundie was “less able to participate in the proceedings” because of
his mental impairments, Chapman, 288 F.3d at 514, the ALJ’s duty to develop the record was
particularly important. See id. (citing DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991)
4 (observing that an ALJ’s duty to develop the record is “especially important” in cases involving
mental impairment)).
In light of our decision to remand, we need not consider (1) whether the district court
abused its discretion in denying Lundie’s request for appointment of counsel; or (2) Lundie’s
March 30, 2022 letter notifying the Court that he has Stage IV Non-Hodgkin’s Lymphoma — a
fact he also included in his reply brief, see Appellant’s Reply Br. at 10 — and attaching medical
records dating from October 2021 to February 2022. 2d Cir. 21-1203, doc. 76 (Ltr.). We have
considered Lundie’s remaining arguments and find them to be without merit. Accordingly, we
DENY Lundie’s motion for disability benefits as moot, VACATE the decision of the district court,
and REMAND to the district court with instructions to remand the matter to the Commissioner
for further proceedings consistent with this order.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court