CLARK v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HEATHER C., 	)
)
Plaintiff 	)
)
v. 	) 	No. 2:22-cv-00103-GZS
)
KILOLO KIJAKAZI, 	)
Acting Commissioner of 	)
Social Security, 	)
)
Defendant 	)
REPORT AND RECOMMENDED DECISION
The Plaintiff in this Social Security Disability appeal contends that the
Administrative Law Judge (ALJ) erred by failing to adequately develop the record.
See Statement of Errors (ECF No. 14). In the particular circumstances of this case,
I agree and recommend that the Court vacate the Commissioner’s decision and
remand this case for further proceedings consistent with this decision.
I. Background
The Plaintiff applied for benefits in the fall of 2018. See Record at 40, 159, 166.
After her claim was denied at the initial and reconsideration levels, the Plaintiff
requested a hearing before an ALJ. See id. at 159-64, 166-74, 188-90. The ALJ held
a hearing in August 2020 and a supplemental hearing in February 2021, see id.
at 63-152, following which she issued a decision finding that the Plaintiff had the
severe impairments of mood, anxiety, and personality disorders, see id. at 40-56.
The ALJ nevertheless determined that the Plaintiff had the residual functional
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capacity (RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b) with
several additional nonexertional limitations. 	See id. at 47. 	Based on the Plaintiff’s
RFC, the ALJ concluded that she could return to her past relevant work as a
housekeeper or perform other jobs existing in significant numbers in the national
economy and was therefore not disabled. 	See id. at 53-56. 	The Appeals Council
denied the Plaintiff’s request to review the ALJ’s decision, see id. at 1-3, making that
decision the final determination of the Commissioner, see 20 C.F.R. § 404.981.
II. Standard of Review
A final decision of the Commissioner is subject to judicial review to determine
whether it is based on the correct legal standards and supported by substantial
evidence. 	See 42 U.S.C. § 405(g); Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
Substantial evidence in this context means evidence in the administrative record that
a reasonable mind could accept as adequate to support an ALJ’s findings. See Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 	If an ALJ’s findings are supported by
substantial evidence, they are conclusive even if the record could arguably support a
different result. 	See Irlanda Ortiz v. Sec’y of Health & Hum. Servs., 955 F.2d 765,
769 (1st Cir. 1991). 	But an ALJ’s findings “are not conclusive when derived by
ignoring evidence, misapplying the law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
III. Discussion
Prior to her first hearing before the ALJ, the Plaintiff submitted letters from
her treating psychologist Cecilia Kinast, Ph.D. See Record at 804-05, 812-13. In those
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letters, Dr. Kinast indicated that, based on “neuropsychological testing conducted in
September 2018,” the Plaintiff met the diagnostic criteria for an autism spectrum
disorder. Id. at 804. Dr. Kinast further noted that the Plaintiff demonstrated “many
behaviors 	that 	would 	interfer[e] 	with 	successful 	job 	performance 	and 	steady
employment,” including that she was easily confused and overwhelmed, struggled to
maintain her focus and work efficiently, and would be regularly absent from work.
Id. at 804, 812-13.
During 	the 	first 	hearing, 	the 	ALJ 	noted 	that 	the 	neuropsychological
examination report referenced in Dr. Kinast’s letters had not been made part of the
record. 	See id. at 116-17. 	The Plaintiff submitted a copy after the hearing, see id.
at 817-21, following which the ALJ submitted written interrogatories to independent
medical expert Allison Podczerwinsky, Psy.D., see id. at 835-40. 	In her response to
the interrogatories, Dr. Podczerwinsky disagreed with Dr. Kinast’s autism diagnosis
and 	opined 	that 	Dr. Kinast’s 	methodology 	was 	flawed 	and 	her 	findings 	were
contradicted by the Plaintiff’s self-reports to other providers. 	See id. at 840.
Dr. Podczerwinsky ultimately concluded that personality traits and substance use
were the “primary causal factors for” the Plaintiff’s “fluctuating limitations.” Id.
In October 2020, the Plaintiff requested the opportunity to cross-examine
Dr. Podczerwinsky. 	See id. at 455. 	The ALJ held a supplemental hearing in
February 2021 where she explained that Dr. Podczerwinsky was contracted only to
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provide written responses to interrogatories but that she had procured “another
medical expert,” Jennifer Blitz, Psy.D., to appear at the hearing. Id. at 65.
When asked by the ALJ whether there was “sufficient objective medical
evidence to allow” her “to form an opinion about the nature and the severity of the
[Plaintiff’s] impairments,” Dr. Blitz testified,
Well, I believe there is but I did want to point out . . . that one of the
problems with Dr. Kinast’s evaluation . . . is that she did not include the
raw data from the MCMI-IV [(Millon Clinical Multiaxial Inventory,
Fourth 	Edition)] 	or 	the 	ADOS-2 	[(Autism 	Diagnostic 	Observation,
Second Edition) testing]. 	She only included the raw data from the
WAIS-IV [(Wechsler Adult Intelligence Scale, Fourth Edition) testing],
which . . . evaluates [the Plaintiff’s] cognitive functioning. 	So for a
psychologist to look at a report written by another psychologist and not
see the raw data, . . . there are points that I would be able to determine
from that data that might not be in the narrative. 	For example, the
[MCMI] has a scale that measure[s] the validity of the measure. 	And
often in settings where there is the potential for secondary gain, such as
a disability hearing, you will find that individuals will exaggerate their
symptoms, which is one of the reasons that that particular measure is
not recommended for use in any legal setting. 	And I would be very
interested to see those scales. 	Also, without the ADOS data, it’s not
really clear what aspects of the autism spectrum disorder [Dr. Kinast]
finds meet the diagnostic criteria. Also, I did not see her records. I was
under the impression from her report . . . that she was treating the
[Plaintiff] and her treatment records are not here. 	So although I 	can
form an opinion based on what I have, I believe that there are important
pieces of information missing.
Id. at 76-77.
Dr. Blitz went on to testify that she did not “find the diagnosis of autism
spectrum disorder to be sufficiently supported by the evidence” in part because of the
missing raw testing data from Dr. Kinast’s neuropsychological examination and also
because “the evidence as a whole [did] not support a developmental disability.”
Id. at 77-78. She again acknowledged, however, that having Dr. Kinast’s treatment
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notes and raw testing data might shed some light on the autism diagnosis, to which
the Plaintiff’s counsel responded,
I would like to point out to the ALJ at this point that I did ask Dr. Kinast
to provide me with her record[s] . . . and for whatever reason she did not
do so. And I . . . wasn’t aware that their availability would be considered
indispensable to support her findings and . . . the information that she
relied upon in this case. So if that’s the case and her qualifications are
basically going to be called into question, I would like the opportunity to
subpoena Dr. Kinast to produce all her records and test results.
Id. at 82-84. The ALJ noted the request but asked the Plaintiff’s counsel to detail the
actions he had taken to obtain Dr. Kinast’s treatment notes and raw testing data and
request them from her again. See id. at 84, 110.
After the hearing, the Plaintiff’s counsel sent an email to Dr. Kinast requesting
“[a]ll counseling and treatment records” as well as the “[r]aw testing data” from the
“psychological tests” that she had performed on the Plaintiff. 	Id. at 464-65.
Dr. Kinast responded that she could send her notes but that she could only release
her raw testing data to someone who was “trained to read such data,” such as a
“psychologist or neuropsycholog[i]st.” 	Id. at 464. 	Dr. Kinast eventually provided
some of her treatment notes but explained that they were “limited” because most of
her records were in her office and she had not been to her office since the outbreak of
the COVID-19 pandemic in early March 2020. Id. at 895-96.
The ALJ ultimately issued a written decision in April 2021 finding the Plaintiff
not disabled. See id. at 56. In her decision, the ALJ effectively denied the Plaintiff’s
subpoena request, explaining,
The [Plaintiff’s] representative requested a subpoena for records from
[Dr. Kinast], which I did not grant because records were received from
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[Dr. Kinast] on February 19, 2021[,] and covered treatment from
September 17, 2019[,] through February 2, 2021. 	I find that sufficient
evidence existed to establish the nature, severity, or duration of the
[Plaintiff’s] impairments . . . . 	I note that the State Agency medical
experts reviewed the evidence through the reconsideration date and
Dr. Blitz reviewed the evidence up through the hearing. In addition, the
representative thoroughly argued the [Plaintiff’s] allegations at both
hearings and the [Plaintiff] was able to provide[ ] testimony.
Id. at 40-41 (citations omitted).
The ALJ went on to find that the Plaintiff’s alleged autism was not a medically
determinable impairment because the evidence lacked “medically acceptable clinical,
diagnostic techniques, and/or testing” that “would support” the alleged autism. 	Id.
at 45. In so finding, the ALJ was persuaded by the opinion of Dr. Blitz—and, to some
extent, the opinion of Dr. Podczerwinsky1—that autism was not supported by the
evidence of record, explaining,
At 	the 	supplemental 	hearing, 	[Dr. 	Blitz] 	testified 	that 	there 	was
sufficient medical evidence to allow her to formulate an opinion about
the nature and severity of the [Plaintiff’s] impairments during the
relevant period. 	She noted that Dr. Kinast did not include[ ] all of her
raw testing data. . . . Dr. Blitz noted that although Dr. Kinast had a
treating relationship with the [Plaintiff], the overall clinical picture,
signs, and evidence did not support a diagnosis of autism. 	Dr. Blitz
noted that [Dr. Podczerwinsky’s] medical interrogatory also addressed
the deficits in Dr. Kinast[’s] conclusions regarding the autism diagnosis.
Effectively, she noted that Dr. Kinast’s testing and diagnosis, absent
treatment 	notes 	and 	full 	raw 	data, 	were 	insufficient 	to 	reach 	a
conclusion that Autism Spectrum Disorder was a severe impairment.
She also noted that other providers did not question whether the
claimant had a developmental or autism disorder. Dr. Blitz noted [that]
this diagnosis was not consistent with the rest of the evidence.
Id. at 49.
1 The ALJ found Dr. Podczerwinsky’s opinion “unpersuasive” overall but noted that her rejection of
Dr. Kinast’s autism diagnosis was “consistent with Dr. Blitz’s opinion and the evidence as a whole.”
Record at 53.
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Conversely, 	the 	ALJ 	found 	Dr. 	Kinast’s 	“opinions 	and 	conclusion[s]
unpersuasive because they were not supported [by] nor consistent with her own
progress notes, or the record as a whole” and her “testing conclusions” lacked the
“necessary raw data to establish a diagnosis” of autism. Id. at 53. The ALJ also noted
that the treatment notes that Dr. Kinast had provided were “rather illegible and
poorly descriptive” and “provided little, if any, clarity regarding the [Plaintiff’s]
functional abilities.” Id.
On appeal, the Plaintiff argues that the ALJ failed in her duty to adequately
develop the record. See Statement of Errors at 9-14. Specifically, the Plaintiff faults
the ALJ for denying her request to subpoena Dr. Kinast’s records and testing data
and then subsequently relying on the absence of those things to reject Dr. Kinast’s
opinion and the autism diagnosis. See id. at 13. The Plaintiff contends that the error
was prejudicial “because many of the limitations identified by [the Plaintiff] and by
Dr. Kinast could not otherwise be supported and substantiated by [her] other
diagnosed mental impairments.” Id. at 13-14.
The Commissioner, on the other hand, argues that the ALJ’s rejection of the
autism 	diagnosis 	was 	“directly 	supported 	by 	the 	opinions 	of” 	Drs. 	Blitz 	and
Podczerwinsky and that the ALJ “did not abuse her discretion by declining to
subpoena” 	Dr. 	Kinast’s 	“treatment 	records 	and 	testing 	data.” 	Opposition
(ECF No. 18) at 1. 	Such treatment records and testing data, the Commissioner
contends, “were not reasonably necessary for full development of the record” because
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the ALJ “reasonably discounted” Dr. Kinast’s autism diagnosis for being “inconsistent
with the other medical opinions and unsupported by the record.” Id. at 5.
The Plaintiff has the better argument.
While a claimant “bears the burden of proof on the issue of disability,” Carrillo
Marin 	v. 	Sec’y 	of 	Health 	& 	Hum. 	Servs., 	758 	F.2d 	14, 	17 	(1st 	Cir. 	1985),
“Social Security proceedings are inquisitorial rather than adversarial” and the ALJ
has a “duty to investigate facts and develop the arguments both for and against
granting benefits,” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). That is not to say that
the ALJ is “required to function as the claimant’s substitute counsel,” Clark v.
Shalala, 28 F.3d 828, 830 (8th Cir. 1994), but, where there are material gaps in the
record, the ALJ does have increased responsibility to see that those gaps are
somewhat filled if it is within her power to do so without undue effort, see Currier v.
Sec’y of Health, Educ. & Welfare, 612 F.2d 594, 598 (1st Cir. 1980).
One power the ALJ has is that she “may . . . issue subpoenas . . . for the
production of books, records, correspondence, papers, or other documents that are
material to an issue at the hearing.” 20 C.F.R. § 404.950(d). However, “for both legal
and practical reasons, the [ALJ] need only accede to a request to subpoena a reporting
physician when reasonably necessary to the full development of evidence in the case.”
Lona 	D. 	v. 	Saul, 	No. 	2:20-cv-00191-JAW, 	2021 WL 	1788403, 	at 	*3 	(D. 	Me.
May 4, 2021) (rec. dec.) (cleaned up), aff’d, 2021 WL 3056373 (D. Me. July 20, 2021).
With these standards in mind, I begin by stating the obvious: Dr. Kinast’s
failure to provide her complete treatment notes and raw testing data created a gap
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in the record. 	As a practical reality, however, there are always some gaps in the
medical evidence. The critical question, then, is whether the missing notes and data
were reasonably necessary to the full development of the case such that the ALJ
should have granted the Plaintiff’s request to subpoena them.
To answer this question, I need not look much further than the ALJ’s own
decision. Although she denied the Plaintiff’s subpoena request on the basis that the
evidence was sufficient for her to make a decision, see Record at 40-41, the ALJ
rejected Dr. Kinast’s autism diagnosis, in part, because Dr. Kinast did not provide
the “necessary raw data to establish” that diagnosis, id. at 53 (emphasis added).
She also found that the relatively few treatment notes that Dr. Kinast had provided
offered “little, if any, clarity regarding [the Plaintiff’s] functional abilities” but failed
to 	acknowledge 	Dr. 	Kinast’s 	qualification 	that 	the 	notes 	were 	incomplete.
Id. at 53, 896.
Dr. Blitz—on whose opinion the ALJ primarily relied in rejecting Dr. Kinast’s
autism diagnosis—similarly recognized the significance of the missing notes and
data. 	See id. at 45, 53, 76-77, 84. 	In a bit of wishful thinking, the Commissioner
contends that Dr. Blitz nevertheless testified that Dr. Kinast’s missing “records were
unnecessary” given the other evidence in the record. 	Opposition at 7 (citing
Record at 49, 77). But what Dr. Blitz actually said about Dr. Kinast’s missing records
was, “[A]lthough I can form an opinion based on what I have, I believe that there are
important pieces of information missing.” Record at 77 (emphasis added).
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That both the ALJ and Dr. Blitz highlighted the materiality of the missing
information from Dr. Kinast and suggested that their decisions might have been
different had they been able to review it amply confirms that the information was
“reasonably necessary to the full development of evidence in the case.” 	Lona D.,
2021 WL 1788403, at *3 (cleaned up). 	It also undermines the Commissioner’s
argument that the Plaintiff has failed to show how she was harmed by the ALJ’s
failure to pursue the missing information. See Opposition at 3. As the Plaintiff points
out, if the ALJ had obtained the records and accepted Dr. Kinast’s autism diagnosis
she would have had to account for the limitations flowing from that impairment when
assessing the Plaintiff’s RFC, which, in turn, might have resulted in a different
decision. See Statement of Errors at 13-14; Levesque v. U.S. Soc. Sec. Comm’n, Acting
Comm’r, No. 18-cv-420-LM, 2019 WL 2004298, at *7 (D.N.H. May 7, 2019) (holding
that an ALJ’s failure to pursue missing x-ray results was prejudicial to a claimant
where the claimant’s treating doctor relied on the results in forming his opinion and
the ALJ relied on the absence of the results in rejecting that opinion thereby
demonstrating that “the inclusion of such records may have led to a different decision”
(cleaned up)); cf. Dawes v. Astrue, No. 1:11-cv-272-DBH, 2012 WL 1098449, at *6
(D. Me. Mar. 30, 2012) (rec. dec.) (holding that an ALJ failed in his duty to develop
the 	record 	where 	he 	did 	not 	attempt 	to 	obtain 	the 	claimant’s 	more 	recent
psychotherapy treatment records to fill in a gap in the medical evidence), aff’d,
2012 WL 1313483 (D. Me. Apr. 17, 2012).
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The Commissioner does not argue that issuing a subpoena would have
required undue effort on the ALJ’s part. 	See generally Opposition. 	And it seems
likely that issuing a subpoena would have been a fruitful exercise where Dr. Kinast
explicitly acknowledged that she had additional treatment notes and the raw testing
data but refused to turn them over to the Plaintiff’s counsel. 	See Record at 464,
895-96. 	Under the circumstances, the ALJ abused her discretion in declining to
subpoena Dr. Kinast and more generally failed to fulfill her duty to develop the
record.2 	See, e.g., Thurman v. Comm’r of Soc. Sec., No. 17-CV-474-FPG, 2018 WL
4940726, at *4 (W.D.N.Y. Oct. 12, 2018) (“[T]he lack of treatment records from [the
claimant’s doctor] created an obvious gap that the ALJ was obligated to develop.
Instead, the ALJ used that gap to [the claimant’s] detriment [by discounting the
doctor’s opinion]. . . . [S]he should have subpoenaed [the doctor’s] records because
they were reasonably necessary to the proper resolution of the [claimant’s] case.”).3
Given this conclusion, I need not consider whether—as the Commissioner
argues—other 	evidence in the record supports the ALJ’s rejection of Dr. Kinast’s
autism diagnosis. 	See Opposition at 5-10. 	That the ALJ may have relied on other
evidence does not obviate her error in failing to develop the record. See, e.g., Kennedy
v. Comm’r of Soc. Sec., No. 17-CV-909-FPG, 2019 WL 988889, at *3 (W.D.N.Y.
Mar. 1, 2019) (“The Commissioner argues that the ALJ was not obligated to issue a
2 On remand, the ALJ and the Plaintiff are encouraged to work together in a practical way to secure
the missing information from Dr. Kinast. Now that the pandemic has subsided, Dr. Kinast may be in
a better position to provide her full treatment notes, and if she understands that her raw testing data
will be reviewed by a qualified expert such as Dr. Blitz, she may be willing to provide it without being
subpoenaed.
3 In light of this conclusion, I need not address the Plaintiff’s other arguments in favor of remand.
See Statement of Errors at 14-16.
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subpoena, and as a result, did not violate his duty to develop the record, because the
ALJ had more than enough evidence in the record to make an informed decision as
to [the claimant’s] abilities. 	The Court disagrees with such [a] contention because
before deciding whether the Commissioner’s decision is supported by substantial
evidence it must first be satisfied that the ALJ provided [the claimant] with a full
hearing under the . . . regulations and also fully and completely developed the
administrative record.” (cleaned up)).
IV. Conclusion
For the foregoing reasons, I recommend that the Commissioner’s decision be
VACATED and the case REMANDED for proceedings consistent with this decision.
NOTICE
A party may file objections to those specified portions of a Magistrate
Judge’s 	report 	or proposed 	findings 	or 	recommended 	decisions 	entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the District
Court is sought, together with a supporting memorandum, within fourteen
(14) days after being served with a copy thereof. 	A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the District Court and to appeal the District Court’s
order.
Dated: March 9, 2023
/s/ Karen Frink Wolf
United States Magistrate Judge
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