Lilley v. Commissioner of Social Security, 1:16-cv-04396

Plaintiff Gary Lilley filed for Supplemental Security Income (SSI) on March 21, 2013, alleging disability beginning February 6, 2013; SSA denied the claim and administrative appeals were exhausted through the Appeals Council.
An ALJ ruled on December 5, 2014 that Lilley was not disabled. Lilley sought judicial review in the Southern District of New York.
Magistrate Judge Parker issued an R&R (Aug. 29, 2017) recommending remand because the ALJ failed to develop the record regarding (1) missing diagnostic reports for Lilley’s back and shoulder impairments, and (2) the lack of a follow-up medical opinion from Dr. Jacek Preibisz.
The Commissioner objected only to the conclusion that the ALJ should have sought a follow-up opinion from Dr. Preibisz.
The district court adopted the R&R in part: it agreed the record was incomplete as to Lilley’s back and shoulder diagnostic reports (requiring remand), but sustained the Commissioner’s objection and held the ALJ was not required to obtain an additional opinion from Dr. Preibisz.
Judgment: plaintiff’s motion granted, defendant’s cross-motion denied, and the case remanded for further administrative proceedings to supplement the record on orthopedics/diagnostics.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ALJ failed to develop the record by not obtaining diagnostic reports (x-rays/MRI) for back and shoulder	ALJ should have obtained those diagnostic reports before finding impairments nonsevere	ALJ need not obtain missing diagnostics if record otherwise sufficient	Held for plaintiff: remand required to obtain diagnostic reports and fully evaluate back/shoulder impairments
Whether ALJ was required to obtain a follow-up medical opinion from Dr. Jacek Preibisz	Lilley argued ALJ should seek Dr. Preibisz’s later clarification on functional limitations	Commissioner argued no obligation because record contained more recent treating physician opinions	Held for defendant on this point: ALJ not required to obtain additional opinion from Dr. Preibisz because later treating physician (Dr. Garnier) provided more recent, overlapping assessments

Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009) (ALJ has affirmative duty to develop the record)
Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999) (no obligation to seek additional evidence where record contains complete medical history)
United States v. Male Juvenile, 121 F.3d 34 (2d Cir. 1997) (district judge reviews de novo properly objected portions of a magistrate judge’s report)
Wilds v. United Parcel Serv., 262 F. Supp. 2d 163 (S.D.N.Y. 2003) (court may accept R&R portions without clear error when no timely objection)