     14-362-cv
     Swiantek v. Commissioner of Social Security

                                      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   8th day of January, two thousand fifteen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               DEBRA ANN LIVINGSTON,
 7               CHRISTOPHER F. DRONEY,
 8                     Circuit Judges.
 9   _____________________________________________________
10
11   TAMARA SWIANTEK, on behalf of M.L.S.,
12
13                                      Plaintiff-Appellant,
14
15                               v.                                                 14-362-cv
16
17   COMMISSIONER OF SOCIAL SECURITY,
18
19                           Defendant-Appellee.
20   _____________________________________________________
21
22   Appearing for Appellant:           Kenneth R. Hiller, Amherst, N.Y.
23
24   Appearing for Appellee:            David B. Meyers, Special Assistant United States Attorney
25                                      (Stephen P. Conte, Regional Chief Counsel, on the brief), for
26                                      William J. Hochul, Jr., United States Attorney, Buffalo, N.Y.
27
28          Appeal from the United States District Court for the Western District of New York
29   (Arcara, J.).
30
31        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
32   AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
33
34          Plaintiff-Appellant Tamara Swiantek appeals on behalf of her minor child, MLS, from
35   the January 29, 2014 decision and order of the United States District Court for the Western
 1   District of New York (Arcara, J.), which affirmed the determination of the Administrative Law
 2   Judge (“ALJ”) that MLS was not entitled to Children’s Supplemental Security Income on the
 3   basis that MLS was not disabled. Swiantek argues that the ALJ erred by: (1) concluding that
 4   MLS was not markedly limited in the domain of caring for herself; and (2) failing to sufficiently
 5   develop the record. We assume the parties’ familiarity with the underlying facts, procedural
 6   history, and specification of issues for review.
 7
 8           “When deciding an appeal from a denial of disability benefits, we focus on the
 9   administrative ruling rather than the district court’s opinion.” Moran v. Astrue, 569 F.3d 108,
10   112 (2d Cir. 2009) (quoting Kohler v. Astrue, 546 F.3d 260, 264-65 (2d Cir. 2008)). “On appeal,
11   we conduct a plenary review of the administrative record to determine if there is substantial
12   evidence, considering the record as a whole, to support the Commissioner’s decision and if the
13   correct legal standards have been applied.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
14   (internal quotation marks omitted). “Substantial evidence means more than a mere scintilla. It
15   means such relevant evidence as a reasonable mind might accept as adequate to support a
16   conclusion.” Moran, 569 F.3d at 112 (internal quotation marks omitted). While we employ “a
17   very deferential standard of review,” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 448 (2d
18   Cir. 2012), we will not hesitate to remand for further findings or a clearer explanation “where we
19   are unable to fathom the ALJ’s rationale in relation to evidence in the record,” Cichocki v.
20   Astrue, 729 F.3d 172, 177 (2d Cir. 2013) (internal quotation marks omitted).
21
22           To qualify for disability benefits, a child under the age of eighteen must establish that:
23   (1) she is not engaged in “substantial gainful activity”; (2) she has a “medically determinable
24   impairment[ or combination of impairments] that is severe”; and (3) these severe impairments
25   “meet, medically equal, or functionally equal the listings.” 20 C.F.R. § 416.924(a)–(d); see also
26   Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004). As is most pertinent here, a combination of
27   impairments “functionally equal” the listings if they “result in ‘marked’ limitations in two
28   domains of functioning or an ‘extreme’ limitation in one domain.” 20 C.F.R. § 416.926a.
29   Neither party disputes the ALJ’s determination that MLS was not engaged in substantial gainful
30   activity or that MLS’s bipolar disorder and attention deficit disorder constituted a “severe
31   impairment” that rendered her “markedly impaired” in the functional domain of “[i]nteracting
32   and relating with others.” See id. Swiantek argues, however, that the ALJ erred in concluding
33   that MLS was not also markedly impaired in the functional domain of “[c]aring for yourself.”
34   See id.
35
36           Considering the record as a whole, we conclude that substantial evidence supports the
37   ALJ’s determination that MLS was not markedly impaired in her ability to care for herself.
38   Although Swiantek urges that MLS demonstrated her inability to regulate herself during several
39   incidents in which she made suicidal gestures and remarks, the contemporaneous notes of her
40   own treating physicians describe MLS during these events as “attention seeking” or as making a
41   “situational threat” with no evidence of “acute lethality that would warrant acute inpatient care.”
42   After reviewing these treatment notes, the ALJ emphasized the lack of restrictions placed on the
43   claimant by the treatment doctor and observed that MLS has not generally received the type of
44   medical treatment that one would expect for a totally disabled individual. “It is not our function
45   to determine de novo whether [MLS] is disabled.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
46   1996). Accordingly, we accept the ALJ’s determination that MLS’s psychological disorders did
47   not render her markedly impaired in this functional domain, where, as in this case, it is supported


                                                     2
 1   by “such relevant evidence as a reasonable mind might accept as adequate to support [the ALJ’s]
 2   conclusion.” Moran, 569 F.3d at 112 (internal quotation marks omitted).
 3
 4           We also reject Swiantek’s assertion that remand is necessary in light of the ALJ’s failure
 5   to procure an opinion from one of MLS’s treating physicians as to whether MLS was markedly
 6   impaired in the domain of caring for herself. “[W]here there are deficiencies in the record, an
 7   ALJ is under an affirmative obligation to develop a claimant’s medical history even when the
 8   claimant is represented by counsel or by a paralegal.” Rosa v. Callahan, 168 F.3d 72, 79 (2d
 9   Cir. 1999) (internal alterations and quotation marks omitted). The ALJ’s duty to develop the
10   record
11   reflects “the essentially non-adversarial nature of a benefits proceeding.” Pratts, 94 F.3d at 37
12   (internal quotation marks omitted); see also Sims v. Apfel, 530 U.S. 103, 111 (2000) (“It is the
13   ALJ’s duty to investigate the facts and develop the arguments both for and against granting
14   benefits . . . .”). 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   (quoting Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).
18
19          The ALJ in this case based his findings on the psychiatric evaluation of a consultative
20   psychologist who personally examined MLS as well as MLS’s complete medical history and
21   treatment notes, which themselves contained multiple psychological assessments of MLS.
22   Although the Social Security regulations express a clear preference for evidence from the
23   claimant’s own treating physicians over the opinion rendered by a consultative examiner, see 20
24   C.F.R. § 416.912,1 this Court does not always treat the absence of a medical source statement
25   from claimant’s treating physicians as fatal to the ALJ’s determination, see Tankisi v. Comm’r of
26   Soc. Sec., 521 F. App’x 29, 33–34 (2d Cir. 2013). Given the extensive medical record before the
27   ALJ in this case, we hold that there were no “obvious gaps” that necessitate remand solely on the
28   ground that the ALJ failed to obtain a formal opinion from one of MLS’s treating physicians
29   regarding the extent of MLS’s impairments in the functional domain of caring for oneself. See
30   Rosa, 168 F.3d at 79 n.5.
31
32           We have considered the remainder of Swiantek’s arguments and find them to be without
33   merit. Accordingly, the order of the district court is hereby AFFIRMED.
34
35                                                        FOR THE COURT:
36                                                        Catherine O’Hagan Wolfe, Clerk
37
38




            1
               Effective March 26, 2012, the Commission amended 20 C.F.R. § 416.912. Because the
     ALJ decision on review was issued on August 15, 2011, those amendments are not applicable to
     this case. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (“[W]e apply and
     reference the version of § 416.912(e) in effect when the ALJ adjudicated [the claimant’s]
     disability claim.”).

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