     14-4391
     Maritza Lopez 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 TO 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   3rd day of December, two thousand fifteen.
 4
 5   Present:
 6               DEBRA ANN LIVINGSTON,
 7               CHRISTOPHER F. DRONEY,
 8                     Circuit Judges,
 9               ANALISA TORRES,
10                     District Judge.*
11   _____________________________________
12
13   MARITZA LOPEZ,
14
15                            Plaintiff-Appellant,
16
17                    v.                                                        14-4391
18
19   COMMISSIONER OF SOCIAL SECURITY,
20
21                         Defendant-Appellee.
22   _____________________________________
23   For Plaintiff-Appellant:                Christopher James Bowes, Shoreham, NY, and
24                                           William Gottlieb, New York, NY.
25
26   For Defendant-Appellee:                            Preet Bharara, United States Attorney for the Southern
27                                                      District of New York, Joseph A. Pantoja, Benjamin H.
28                                                      Torrance, Assistant United States Attorneys for the
29                                                      Southern District of New York, New York, NY.

     * The Honorable Analisa Torres, of the United States District Court for the Southern District of
     New York, sitting by designation.
30                                                 1
 1          UPON      DUE     CONSIDERATION              WHEREOF      it   is   hereby     ORDERED,

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

 3   REMANDED for further proceedings consistent with this order.

 4          Plaintiff-Appellant Maritza Lopez (“Lopez”) appeals from the August 5, 2014 order and

 5   the September 29, 2014 judgment of the United States District Court for the Southern District of

 6   New York (Carter, J.) affirming the April 2, 2012 final administrative decision denying her

 7   application for disability benefits. Lopez challenges this disability determination on the grounds

 8   that the Administrative Law Judge (“ALJ”) (1) failed to properly develop the administrative

 9   record, and (2) improperly rejected Lopez’s subjective complaints of pain. We assume the

10   parties’ familiarity with the underlying facts and procedural history of the case, and with the

11   issues on appeal, which we describe here only as necessary to explain our decision.

12                                                 ***

13          “When deciding an appeal from a denial of disability benefits, we focus on the

14   administrative ruling rather than the district court’s opinion.” McIntyre v. Colvin, 758 F.3d 146,

15   149 (2d Cir. 2014) (citation omitted). “We conduct a plenary review of the administrative record

16   to determine if there is substantial evidence, considering the record as a whole, to support the

17   Commissioner’s decision and if the correct legal standards have been applied.” Id. (citation and

18   internal quotation marks omitted). Substantial evidence is “more than a mere scintilla. It means

19   such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

20   Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted).

21          In evaluating whether substantial evidence supports a disability determination, “we defer

22   to the Commissioner’s resolution of conflicting evidence,” Cage v. Comm’r of Soc. Sec., 692

23   F.3d 118, 122 (2d Cir. 2012), and can reject findings of fact “only if a reasonable factfinder


                                                     2
 1   would have to conclude otherwise,” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d

 2   Cir. 2012)) (emphasis in original) (citation omitted). Accordingly, we “may not substitute [our]

 3   own judgment for that of the [Commissioner], even if [we] might justifiably have reached a

 4   different result upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d

 5   1037, 1041 (2d Cir. 1984).

 6            Under the Social Security Act, a “disability” is an “inability to engage in any substantial

 7   gainful activity by reason of any medically determinable physical or mental impairment which

 8   can be expected to result in death or which has lasted or can be expected to last for a continuous

 9   period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To determine whether an

10   individual is disabled, the Commissioner employs a five-step sequential evaluation process. See

11   20 C.F.R. § 404.1520. Until the final step in this process, the burdens of production and

12   persuasion remain solely with the claimant. See Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir.

13   1998).

14            Before assessing whether the ALJ’s determination was supported by substantial evidence,

15   “we must first be satisfied that the claimant has had a full hearing.” Cruz v. Sullivan, 912 F.2d 8,

16   11 (2d Cir. 1990) (quoting Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d

17   Cir. 1982)). Whether dealing with a pro se claimant or one represented by counsel, the ALJ

18   must “develop [the claimant’s] complete medical history.” 20 C.F.R. § 404.1512. See also

19   Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (describing duty to develop record). Moreover,

20   when the claimant appears pro se, this Circuit has stated that the ALJ must “scrupulously and

21   conscientiously probe into, inquire of, and explore for all the relevant facts.” Cruz, 912 F.2d at

22   11 (quoting Echevarria, 636 F.2d at 895). And, in circumstances like those here, we have

23   “repeatedly stated”:


                                                       3
 1          [W]hen the ALJ rejects the findings of a treating physician because they were
 2          conclusory or not supported by specific clinical findings, he should direct a pro se
 3          claimant to obtain a more detailed statement from the treating physician.
 4
 5   Cruz, 912 F.2d at 12. Subsection (c)(2) of 20 C.F.R. § 404.1527, moreover, provides that

 6   opinions by treating physicians are granted “controlling weight,” provided the opinions are (1)

 7   “well-supported” or (2) “not inconsistent with other substantial evidence” in the administrative

 8   record. 20 C.F.R. § 404.1527(c)(2).

 9          In this case, the ALJ discounted the opinion of one treating physician, Dr. Andrew

10   Brown, as “conclusory or not supported by specific clinical findings,” Cruz, 912 F.2d at 12, i.e.,

11   in the language of the applicable regulation, not “well-supported.” 20 C.F.R. § 404.1527(c)(2).

12   In particular, the ALJ gave “[l]ittle weight” to Dr. Brown’s diagnosis of Lopez as “total[ly]”

13   disabled, because Dr. Brown’s underlying medical findings were “unchanged” from recent

14   examinations in which Dr. Brown had deemed Lopez not disabled.1 AR18, 333.                    Before

15   rejecting Dr. Brown’s opinion on these grounds, the ALJ should have afforded Lopez “an

16   opportunity to obtain a more detailed statement” from Dr. Brown. Echevarria, 685 F.2d at 756

17   (quoting Hankerson v. Harris, 636 F.2d 893, 896 (2d Cir. 1980)).2

18          In addition, consistent with the ALJ’s “duty to adequately protect a pro se claimant’s

19   rights by ensuring that all of the relevant facts are sufficiently developed and considered,” Cruz,


     1
       We query whether Dr. Brown’s opinion did, in fact, rest on “unchanged” medical findings,
     given Dr. Brown’s notation of Lopez’s deep vein thrombosis and recent hospitalization. Dr.
     Brown’s earlier medical records do not reference deep vein thrombosis.
     2
       Lopez also argues that the ALJ failed to develop the record with respect to her “prior relevant
     work” at stage four of the disability determination. While we do not reach this question, we note
     that it is unclear whether the contents of the “supplemental record” were part of the
     administrative record at the time of Lopez’s hearing. Because the ALJ decision appears to rely,
     at least in part, on disclosures by Lopez memorialized in these documents, the agency should
     confirm and clarify on remand that Lopez had an opportunity to contest these findings. See 42
     U.S.C. § 405(b).

                                                     4
 1   912 F.2d at 11 (citation and alteration omitted), the ALJ should have investigated Lopez’s

 2   statement at the hearing that she had been “hospitalized for four days due to [her] back” in

 3   summer 2011.       AR33.      The records from Metropolitan Hospital describe no such

 4   hospitalization,3 creating an “obvious gap[]” in the record that the ALJ should have addressed in

5    his April 2, 2012 decision. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999).

 6            For the reasons stated above, we VACATE AND REMAND the District Court’s August

 7   5, 2014 order and September 29, 2014 judgment for further proceedings consistent with this

 8   order.

 9                                                       FOR THE COURT:
10                                                       Catherine O’Hagan Wolfe, Clerk
11
12




     3
      The records from Metropolitan Hospital do indicate treatment for back pain on August 10,
     2011, but this does not appear to have involved any stay or “hospitalization” (much less for a
     period of four days).
                                                   5
