    16-2672-cv
    Morris 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 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 18th day of January, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             PETER W. HALL,
                                  Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    Sheila Jean Morris,
             Plaintiff-Appellant,

                -v.-                                       16-2672-cv

    Nancy A. Berryhill, Acting
    Commissioner of Social Security,
             Defendant-Appellee.1
    - - - - - - - - - - - - - - - - - - - -X

    FOR APPELLANT:                      Elizabeth Haungs, Law Offices of
                                        Kenneth Hiller, PLLC, Amherst,
                                        New York.

    FOR APPELLEE:                       Graham Morrison, Special
                                        Assistant United States
                                        Attorney, for James P. Kennedy,

    1 Pursuant to FRAP 43(c)(2), Acting Commissioner Nancy A. Berryhill is
    automatically substituted for Carolyn W. Colvin.

                                           1
                           Jr., Acting United States
                           Attorney for the Western
                           District of New York (Stephen P.
                           Conte, on the brief).

     Appeal from a judgment of the United States District
Court for the Western District of New York (Skretny, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Sheila Morris appeals from the judgment of the United
States District Court for the Western District of New York
affirming the Commissioner’s denial of her application for
Supplemental Social Security disability income. We assume
the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

     Sheila Morris filed a Title XVI application for
supplemental security income in September 2011 alleging
disability since June 1, 2008. The application was denied,
and Morris requested a hearing before an Administrative Law
Judge (“ALJ”). Appearing pro se, Morris submitted
testimony and documentation about her condition and
capacity at the February 2013 hearing. The ALJ also
consulted the medical opinion and notes of Morris’s
treating physician, Dr. Ellis Gomez, in addition to
treatment records from a geriatrician, a specialist in
physiatry and rehabilitation, and a neurologist, as
summarized below.

     These treatment records show that Morris suffers from
hypertension, hypothyroidism, and sporadic pain in her
hands, feet, neck, and back. In a March 14, 2011
employability assessment, Morris was diagnosed with
hypertension, hypothyroidism, and swelling in her ankles
and forearms; it was recommended that she not work for
three months. Later that year, Morris’ treating physician
Dr. Gomez diagnosed obesity, high cholesterol, and mild
plantar fasciitis in the ankles, but otherwise normal
extremities. Dr. Gomez’s August 30, 2011 employability
assessment noted the same set of conditions, and opined
that Morris was moderately limited in walking, standing,
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sitting, lifting, pushing, and climbing. A November 22,
2011 physical exam and diagnosis by Dr. Gautam Arora
detected the same conditions in addition to chronic pain,
but only identified mild limitations in physical movement.
These diagnoses revealed no limitation in mental function
limitations and no limitation in seeing, hearing, speaking,
or the use of hands. In February 2012, after Morris
complained of pain and numbness in her hands and forearms,
Morris saw Dr. Jeannie Koenig, a neurologist, who diagnosed
moderate carpal tunnel syndrome.

     On June 26, 2012, Dr. Gomez completed another
functional capacity assessment, this time opining that
Morris was “moderately limited” due to impairments in all
areas of physical functioning and most areas of mental
functioning, including: understanding and carrying out
instructions; making simple decisions; interacting
appropriately with others; maintaining socially appropriate
behavior; and functioning in a work setting. As a result,
Dr. Gomez concluded that Morris would not be able to work.
Before the ALJ, Morris was not able to name her medical
conditions, but she testified that: she had a ninth-grade
special education; she had never worked full time; and she
could not work due to trouble with her feet, legs, and
arms.

     To be disabled under the Social Security Act (“Act”), a
claimant must establish an “inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.”
20 C.F.R. § 404.1505(a). The Commissioner engages in a
five-step process to determine disability status, with the
burden resting on the claimant for the first four steps and
on the Commissioner for the fifth. 20 C.F.R. §
404.1520(a)(4); see also Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008). The ALJ found that the medical record
evinced “severe impairments,” but determined that Morris
retained the residual functional capacity to perform light
work, with certain limitations, and that the Commissioner
had proven that such work existed in significant numbers in
the national economy. The ALJ therefore denied Morris’


                             3
application, ruling that she was not under a “disability”
within the meaning of the Act.

     Morris alleges that she did not receive a full and fair
hearing because the ALJ failed to develop the record with a
complete medical history, particularly in light of her pro
se status. Morris also argues that the ALJ inappropriately
discounted the June 26, 2012 medical opinion of Morris’
treating physician, Dr. Gomez, that Morris was unable to
work. The district court found that the ALJ fulfilled the
duty to develop the record and that the ALJ’s determination
was supported by substantial evidence. The Commissioner’s
motion for judgment on the pleadings was granted.

     Our review of the denial of disability benefits
“focus[es] on the administrative ruling rather than the
district court’s opinion.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir. 2009) (citation omitted). The threshold
question is whether the claimant received a full and fair
hearing. “[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.” Lamay v.
Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009)
(citations and alterations omitted); see also Butts v.
Barnhart, 388 F.3d 377, 386 (2d Cir. 2004) (“It is the
ALJ’s duty to investigate and develop the facts and develop
the arguments both for and against the granting of
benefits.”) (citations and alterations omitted). Failure
to develop the record warrants remand. See Rosa v.
Callahan, 168 F.3d 72, 79-80 (2d Cir. 1999); Moran, 569
F.3d at 113-15 (vacating and remanding for “perfunctory”
efforts by the ALJ to develop the record).

     This duty is heightened for a pro se claimant. See
Moran, 569 F.3d at 113; Cruz v. Sullivan, 912 F.2d 8, 11
(2d Cir. 1990). When a disability benefits claimant
appears pro se, the ALJ must “ensur[e] that all of the
relevant facts are sufficiently developed and considered.”
Cruz, 912 F.2d at 11 (internal quotation marks, citations,
and alterations omitted). Further, an ALJ “cannot reject a
treating physician’s diagnosis without first attempting to
fill any clear gaps in the administrative record.” Rosa,
168 F.3d at 79.
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     Morris contends that the record was deficient because
the ALJ discounted the opinion of her treating physician,
Dr. Gomez, and that gaps remained in the administrative
record, in particular, missing treatment notes. Dr. Gomez
did receive requests for documents from the Social Security
Administration, to which she responded with treatment
records for Morris through April 2012. Additionally, at
the hearing, Morris provided the ALJ with supplemental
records from Dr. Gomez including a functional capacity
assessment dated June 21, 2012, progress notes dated
December 31, 2012, and correspondence between Dr. Gomez and
other treating physicians. Morris argues, however, that
the ALJ had a duty to recontact Dr. Gomez to obtain any
outstanding records or clarification as of February 2013
before discarding his opinion. See Rosa, 168 F.3d at 80;
Selian v. Astrue, 708 F.3d 409, 420-21 (2d Cir. 2013).

     The appellant urges that three missing records may
exist that bear on Dr. Gomez’s “moderately limited”
opinion. But that theoretical possibility does not
establish that the ALJ failed to develop a complete record.
It is at best disputed whether these records offer the
salient corroboration to Dr. Gomez’s June 26, 2012
diagnosis argued by the appellant. As the Government
points out, there is no evidence that the alleged
appointments were held or that the corresponding records
exist. And Morris has no information about their contents.

     Moreover, many of the recommendations made in Dr.
Gomez’s June 26, 2012 opinion are contradicted by his own
August 30, 2011 opinion, which noted that Morris had no
mental deficiencies. Dr. Gomez consistently found
relatively mild limitation related to his patient’s
obesity, hands, and feet, none of which supported the wide-
ranging and extreme functional limitations identified in
his assessment affecting areas such as speech,
socialization, and attention span. The duty to recontact
arises only if the ALJ lacks sufficient evidence in the
record to evaluate the doctor’s findings, not when the
treating physician’s opinion is inconsistent with her own
prior opinions and the rest of the record. See Guillen v.
Berryhill, 697 F. App’x 107, 108 (2d Cir. 2017)(summary


                             5
order)(citing Rosa, 168 F.3d at 79 n.5)); see also Rebull
v. Massanari, 240 F. Supp. 2d 265, 272 (S.D.N.Y. 2002).

     Morris responds that the missing treatment notes would
show that her condition deteriorated significantly between
August 2011 and June 2012; but this is dubious, especially
considering the addition of previously undiagnosed social
and cognitive handicaps. Further, the ALJ already
possessed records from Dr. Gomez spanning May 2011 to
December 2012, in addition to numerous assessments and
notes from other physicians that cover each possible
impairment, none of which corroborate the physical and
mental limitations listed in the June 26, 2012 opinion.
See Carvey v. Astrue, 380 F. App’x 50, 51 (2d Cir. 2010)
(summary order)(“[B]ecause the record evidence was adequate
to permit the ALJ to make a disability determination, we
identify no merit in [the] claim that the ALJ was obligated
sua sponte to recontact the treating physician[].”).

     Morris relies on Lopez v. Comm’r of Soc. Sec. to
illustrate that the omission of even one treatment source
for a pro se claimant requires remand. 622 F. App’x 59 (2d
Cir. 2015). In Lopez, a summary order, the claimant stated
at her hearing that she had been “hospitalized for four
days” due to back pain, but the hospitalization did not
appear in the administrative record. Id. at 61. The court
concluded that the absence of the hospital stay “creat[ed]
an obvious gap in the record” and remanded for the ALJ to
further develop the record. Id. (internal quotation marks
and alterations omitted) (citing Rosa, 168 F.3d at 79 n.
5). But an overnight hospital stay is likely to be a
serious and critical medical event that could materially
change the weight of the evidence on the disability
determination; the potentially missing records here would
consist of routine check-up and progress notes, with no
indication that they contain significant information. It
is not even clear that any records are actually missing.

     With a sufficient administrative record, we review “de
novo to determine whether there is substantial evidence
supporting the Commissioner’s decision and whether the
Commissioner applied the correct legal standard.” Zabala
v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (citation
omitted). Substantial evidence “means such relevant
                             6
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation and quotation marks
omitted). If there is substantial evidence to support the
Commissioner’s decision, it must be upheld. 42 U.S.C. §
405(g); see also Moran, 569 F.3d at 112.

     Morris argues that the ALJ’s disability decision is not
supported by substantial evidence because it insufficiently
credits the medical opinion of her treating physician, Dr.
Gomez.

     Under the Treating Physician Rule, the “opinion of a
treating physician is given controlling weight if it is
well supported by medical findings and not inconsistent
with other substantial evidence.” Rosa, 168 F.3d at 78-79;
see also Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir.
2008). But the opinion of a treating physician is not
absolute. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d
Cir. 2004); cf. Minix v. Chater, No. 95CIV.8410(SAS), 1996
WL 435164, at *3 (S.D.N.Y. Aug. 1, 1996). As explained
above, Dr. Gomez’s June 2012 opinion was not supported by
his diagnoses; conflicted with his earlier August 30, 2011
assessment; and painted a graver picture of Morris’ health
than any of Morris’ consulting physicians’ assessments
could support. In the event of such a conflict, “we defer
to the Commissioner’s resolution of conflicting evidence,”
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir.
2012), and reject the ALJ’s findings “only if a reasonable
factfinder would have to conclude otherwise.” Brault v.
Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d Cir.
2012)(emphasis in original)(citation omitted). Rejecting
Dr. Gomez’s opinion here in favor of contrary evidence was
a proper exercise of discretion. See Veino v. Barnhart,
312 F.3d 578, 588-89 (2d Cir. 2002).

     Aside from the discounted opinion of Dr. Gomez,
substantial evidence supports the ALJ’s determination that
Morris is not disabled and can perform work available in
the national economy with certain limitations. See 20
C.F.R. § 416.920(f); Talavera v. Astrue, 697 F.3d 145, 151,
153 (2d Cir. 2012).



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     For the foregoing reasons, and finding no merit in
MORRIS’s remaining arguments, we hereby AFFIRM the judgment
of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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