16-1605
Jackson 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 2nd day of June, two thousand seventeen.

PRESENT: JOHN M. WALKER, JR.,
         DEBRA ANN LIVINGSTON,
         GERARD E. LYNCH,
                       Circuit Judges.

————————————————————————

CHRISTINA RENE JACKSON,

                                     Plaintiff-Appellant,

                       v.                                                 No. 16-1605

NANCY A. BERRYHILL, ACTING COMMISSIONER
OF SOCIAL SECURITY,

                                     Defendant-Appellee.1

————————————————————————

FOR APPELLANT:               TIMOTHY HILLER, Law Offices of Kenneth Hiller PLLC,
                             Amherst, NY.

FOR APPELLEE:                DANIELLA M. CALENZO, Special Assistant U.S. Attorney,

1
 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Commissioner of Social Security
Nancy A. Berryhill is automatically substituted for former Acting Commissioner of Social Security
Carolyn W. Colvin as Defendant-Appellee.
                             Stephen P. Conte, Regional Chief Counsel-Region II, Office
                             of the General Counsel, Social Security Administration, for
                             James P. Kennedy, Jr., U.S. Attorney for the Western District
                             of New York.

       Appeal from a judgment of the United States District Court for the Western

District of New York (Charles J. Siragusa, Judge).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is VACATED and

the case REMANDED with instructions to remand to the agency for further proceedings.

       Plaintiff-appellant, Christina Rene Jackson, challenges the district court’s

affirmance of a determination by the Commissioner of Social Security that she is not

entitled to Social Security Disability Insurance (“SSDI”) and Supplemental Security

Income (“SSI”) disability benefits. We assume the parties’ familiarity with the facts,

procedural history, and issues on appeal, which we describe here only as necessary to

explain our decision.

       We review the Commissioner’s decision under 42 U.S.C. §§ 405(g) and 1383(c)(3)

to determine whether it is based upon the correct legal standards and supported by

substantial evidence in the record as a whole. See Zabala v. Astrue, 595 F.3d 402, 408 (2d

Cir. 2010). In deciding whether the Commissioner’s decision is supported by substantial

evidence, we must be “satisfied that the claimant has had a full hearing.” Cruz v. Sullivan,

912 F.2d 8, 11 (2d Cir. 1990) (internal quotation marks omitted). Specifically, when

dealing with an unrepresented claimant, an ALJ has a “heightened duty to scrupulously

and conscientiously probe into, inquire of, and explore for all the relevant facts.” Id.


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(internal quotation marks omitted).

       In this case, the ALJ was presented with documentary and testimonial evidence

suggesting that Jackson suffered from significant cognitive impairments. Although

Jackson had worked as a certified nurse assistant for a number of years, there was

evidence that she did not perform well, sometimes “forg[etting] about doing [her] job,”

A.R. 48, or even when she was scheduled to work, and needing instructions repeated to

her. She managed by receiving help from others, including an unusually forgiving

supervisor who would “take me in her office and just sit me in there and talk to me and

try to figure out what’s going on.” Id. at 63. Jackson testified that she suffered from

“memory problems” and could no longer work because her “mood changes” prevented

her from focusing and concentrating. Id. at 51, 63. Medical records from her treating

psychiatrist, Dr. Prakash P. Reddy, stated that Jackson “seems to be having cognitive

problems” and noted that Jackson reported difficulties with memory and concentration at

work. Id. at 419.

       Moreover, records from the Rochester School District showed that Jackson had

been classified as “learning disabled” in high school and required an individualized

education plan; that she had been assessed as having “[l]ow average to borderline”

cognitive function in high school; and that her math, reading, and written language skills

remained at a seventh-grade level or lower at age 19. Id. at 332, 337. Although not before

the ALJ, additional records of I.Q. testing during her middle school years submitted to the

Appeals Council reflected Verbal I.Q. scores of 73 and 74, and Full Scale I.Q. scores of


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78 and 83. Forms that Jackson filled out in connection with her application for disability

benefits revealed confused responses and borderline literacy.

       Those limitations were compounded, as Jackson grew older, by mental health

issues and drug abuse. Mental health examinations as an adult recorded hallucinations,

tangential thought forms, anxiety, poor concentration, a history of depression, suicidal

ideation and self-cutting, and a diagnosis of bipolar disorder.

       Despite acknowledging much of that evidence, the ALJ did not conduct further

inquiry into Jackson’s cognitive impairments and concluded that they were not as severe

as Jackson claimed. That determination, however, was based in significant part on a

serious error. The ALJ believed that Dr. Reddy, the treating psychiatrist, had “ruled out,”

or recorded in his notes that other health care professionals had “ruled out,” diagnoses of

cognitive disorder, bipolar disorder, and post-traumatic stress disorder. Id. at 28-29. As

the Commissioner now concedes, however, the repeated references in the charts to rule

out diagnoses, id. at 412, 418, indicated that the disorders were possible diagnoses that

had not been ruled out, pending further evaluation, see Byes v. Astrue, 687 F.3d 913, 916

n.3 (8th Cir. 2012).

       Particularly in light of this significant mis-evaluation of the record, we conclude

that the ALJ’s heightened duty to pro se claimants required more than was done here.

Presented with historical evidence of Jackson’s cognitive impairments during high school

and indications that those impairments had persisted and might even have worsened, the

ALJ should have further developed the record as to their present severity, rather than



                                              4
halting the inquiry based on an erroneous conclusion drawn from ambiguous language in

a medical record. The deficit in the record was not cured by the submission to the

Appeals Council of I.Q. tests that were conducted two decades earlier, when Jackson was

11 and 14 years of age, and thus were of little relevance to assessing the extent of her

cognitive impairments during the relevant period. Indeed, substantial evidence suggests

that drug abuse, mental health issues, or other factors may have significantly worsened

Jackson’s condition. The ALJ herself repeatedly suggested that I.Q. tests would have

assisted her in determining the severity of Jackson’s cognitive impairments. Ordering

such testing or taking other steps to obtain an objective evaluation of Jackson’s cognitive

abilities during the relevant period would have been consistent with the ALJ’s “duty to

adequately protect a pro se claimant’s rights by ensuring that all of the relevant facts are

sufficiently developed and considered.” Cruz, 912 F.2d at 11 (alteration and internal

quotation marks omitted).

       We have considered Jackson’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgment of the district court is VACATED

and REMANDED with instructions to the district court to remand the case to the agency

for further proceedings consistent with this order.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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