Berg v. Commissioner of Social Security

Filing 23

RULING granting 15 Motion to Remand to Agency; and denying 18 Motion to Affirm the Decision of the Commissioner. See attached Ruling. Signed by Judge Sarah A. L. Merriam on 1/5/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
GEOFFREY S. BERG
:
:
v.
: CIV. NO. 3:14CV01042(SALM)
:
CAROLYN W. COLVIN, ACTING
:
COMMISSIONER, SOCIAL SECURITY :
ADMINISTRATION
: January 5, 2016
:
------------------------------x
RULING ON CROSS MOTIONS
Plaintiff Geoffrey S. Berg brings this action pursuant to
42 U.S.C. §405(g), seeking review of a final decision of the
Commissioner of Social Security denying his application for
Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. §401 et seq (“the Act”).
Plaintiff has moved to remand the case for a rehearing. The
Commissioner has moved to affirm.
For the reasons set forth below, plaintiff‟s Motion to
Remand [Doc. #15] is GRANTED. Defendant‟s Motion for an Order
Affirming the Decision of the Commissioner [Doc. #18] is DENIED.
I.

ADMINISTRATIVE PROCEEDINGS
The procedural history of this case is not disputed.

Plaintiff filed an application for DIB on October 4, 2010,

1

alleging disability as of November 1, 2007.1 [Certified
Transcript of the Record, Compiled on November 3, 2014,
(hereinafter “Tr.”) 177]. His DIB claim was denied initially on
July 7, 2011, and upon reconsideration on October 17, 2011. Id.
Plaintiff timely requested a hearing before an Administrative
Law Judge (“ALJ”) on December 14, 2011. Id.
On October 3, 2012, Administrative Law Judge Deidre R.
Horton held a hearing at which plaintiff appeared with counsel
and testified. [Tr. 200-24] On November 29, 2012, the ALJ found
that plaintiff was not disabled, and denied his claim. [Tr. 17785] Plaintiff filed a timely request for review of the hearing
decision on January 3, 2013. [Tr. 171-172] On May 19, 2014, the
Appeals Council denied review, thereby rendering ALJ Horton‟s
decision the final decision of the Commissioner. [Tr. 1-7] The
case is now ripe for review under 42 U.S.C. §405(g).
Plaintiff, represented by counsel, timely filed this action
for review and moves to remand for a new hearing.
II.

STANDARD OF REVIEW
The review of a Social Security disability determination

involves two levels of inquiry. First, the Court must decide
whether the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide whether
1

Plaintiff‟s last date insured is December 30, 2013. [Tr. 177]

2

the determination is supported by substantial evidence. Balsamo
v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). The reviewing court‟s responsibility is to ensure
that a claim has been fairly evaluated by the ALJ. Grey v.
Heckler, 721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
The Court does not reach the second stage of review –
evaluating whether substantial evidence supports the ALJ‟s
conclusion – if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912 F. Supp. 2d
33, 70 (S.D.N.Y. 2012) (“The Court first reviews the
Commissioner‟s decision for compliance with the correct legal
standards; only then does it determine whether the
Commissioner‟s conclusions were supported by substantial
evidence.”). “Where there is a reasonable basis for doubt
whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made

3

according to the correct legal principles.” Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity to enable [a reviewing court]
to decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)
(alteration added)(citation omitted). The ALJ is free to accept
or reject the testimony of any witness, but a “finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citation omitted). “Moreover, when a
finding is potentially dispositive on the issue of disability,
there must be enough discussion to enable a reviewing court to
determine whether substantial evidence exists to support that
finding.” Johnston v. Colvin, Civ. No. 3:13CV00073(JCH), 2014 WL
1304715, at *6 (D. Conn. Mar. 31, 2014) (internal citations
omitted).
It is important to note that in reviewing the ALJ‟s
decision, this Court‟s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA‟s conclusions were supported by
substantial evidence in the record and were based on a correct

4

legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (citations and internal quotation marks omitted).
“[W]hether there is substantial evidence supporting the
appellant‟s view is not the question here; rather, we must
decide whether substantial evidence supports the ALJ‟s
decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App‟x 58, 59 (2d
Cir. 2013)(citations omitted).
III.

SSA LEGAL STANDARD
Under the Social Security Act, every individual who is

under a disability is entitled to disability insurance benefits.
42 U.S.C. §423(a)(1).
To be considered disabled under the Act and therefore
entitled to benefits, Mr. Berg must demonstrate that he is
unable to work after a date specified “by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment or impairments
must be “of such severity that he is not only unable to do his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
§423(d)(2)(A)(alterations added); see also 20 C.F.R.

5

§404.1520(c)(requiring that the impairment “significantly limit
[ ] ... physical or mental ability to do basic work activities”
to be considered “severe”).
There is a familiar five-step analysis used to determine if
a person is disabled. See 20 C.F.R. §404.1520(a)(4). In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If
he is not, the Secretary next considers whether the
claimant has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities.
If
the
claimant
suffers
such
an
impairment, the third inquiry is whether, based solely
on medical evidence, the claimant has an impairment
which is listed in Appendix 1 of the regulations. If
the claimant has such an impairment, the Secretary
will
consider
him
disabled
without
considering
vocational factors such as age, education, and work
experience; the Secretary presumes that a claimant who
is afflicted with a “listed” impairment is unable to
perform substantial gainful activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
steps:
Assuming
the
claimant
does
not
have
a
listed
impairment, the fourth inquiry is whether, despite the
claimant‟s severe impairment, he has the residual
functional capacity to perform his past work. Finally,
if the claimant is unable to perform his past work,
the Secretary then determines whether there is other
work which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
6

Id.
“Through the fourth step, the claimant carries the burdens
of production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of proof
and the Commissioner is obligated to demonstrate that jobs exist
in the national or local economies that the claimant can perform
given his residual functional capacity.” Gonzalez ex rel. Guzman
v. Dep‟t of Health and Human Serv., 360 F. App‟x 240, 243 (2d
Cir. 2010) (citing 68 Fed. Reg. 51155 (Aug. 26, 2003)); Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).
“Residual functional capacity” is what a person is still capable
of doing despite limitations resulting from her physical and
mental impairments. See 20 C.F.R. §§404.1545(a), 416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant‟s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978) (citation
omitted). “[E]ligibility for benefits is to be determined in
light of the fact that the Social Security Act is a remedial
statute to be broadly construed and liberally applied.” Id.
(citation and internal quotation marks omitted).
7

IV.

THE ALJ’S DECISION
Following the above-described five step evaluation process,

ALJ Horton concluded that plaintiff was not disabled under the
Act. [Tr. 177-85] At step one, the ALJ found that plaintiff had
not engaged in substantial gainful activity since November 1,
2007, the alleged onset date. [Tr. 179] At step two, the ALJ
found that plaintiff had the severe impairment of major
depressive disorder, recurrent. Id. The ALJ found that the
plaintiff‟s asserted impairments of high blood pressure and high
cholesterol did not cause any significant physical limitations
and were not “severe.”
At step three, the ALJ found that plaintiff‟s impairments,
either alone or in combination, did not meet or medically equal
the severity of any of the listed impairments in 20 C.F.R. Pt.
404, Subpt. P, App. 1. [Tr. 180-81] The ALJ specifically
considered Listing 12.04 (affective disorders). [Tr. 180] The
ALJ also conducted a psychiatric review technique and found that
plaintiff had mild restrictions in his activities of daily
living, mild difficulties in social functioning, and moderate
difficulties in concentration, persistence or pace. He found
that the plaintiff had experienced one episode of decompensation
of extended duration. [Tr. 180-81] Before moving onto step four,
the ALJ found plaintiff had the RFC to

8

perform a full range of work at all exertional levels
but with the following nonexertional limitations: The
claimant is able to engage in simple routine tasks and
occasionally more complex
tasks; he can relate
appropriately to others; and he can adapt to ordinary
changes in the workplace.
[Tr. 181] At step four, the ALJ found plaintiff was unable to
perform his past relevant work. [Tr. 184] At step five, after
considering plaintiff‟s age, education, work experience and RFC,
the ALJ found that jobs existed in significant numbers in the
national economy that plaintiff could perform. [Tr. 184]
V.

DISCUSSION
On appeal, plaintiff asserts the following arguments in

favor of remand:
1. The ALJ erred in her application of the treating
physican rule, as to plaintiff‟s treating psychiatrist
Dr. Brett Blatter;
2. The ALJ erred when she failed to indicate the weight
assigned to the Agency‟s psychological consultant‟s
assessments; and
3. The ALJ‟s failure to call a vocational expert was
error.
For the reasons set forth below, the Court finds that the
ALJ erred in her application of the treating physician rule to
Dr. Blatter‟s opinion.

9

Plaintiff argues that the ALJ erred by failing to afford
“controlling weight” to the opinion of treating physician Dr.
Brett Blatter pursuant to 20 C.F.R. §404.1527(c)(1)-(6).
Pursuant to 20 C.F.R. §404.1527(c)(2), a treating source‟s
opinion will usually be given more weight than a non-treating
source. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).
“The SSA recognizes a rule of deference to the medical views of
a physician who is engaged in the primary treatment of a
claimant.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(per curiam). “A treating physician‟s statement that the
claimant is disabled cannot itself be determinative.” Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999). However, “the opinion
of a claimant‟s treating physician as to the nature and severity
of the impairment is given „controlling weight‟ so long as it
„is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.‟” Burgess,
537 F.3d at 128 (quoting 20 C.F.R. §404.1527[(c)](2)).
If the treating physician‟s opinion is not supported by
objective medical evidence based on “medically acceptable”
techniques, or is inconsistent with other substantial evidence
in the record, the ALJ need not give the opinion significant
weight. See Poupore, 566 F.3d at 307. “Medically acceptable ...

10

means that the clinical and laboratory diagnostic techniques
that the medical source uses are in accordance with the medical
standards that are generally accepted within the medical
community as the appropriate techniques to establish the
existence and severity of an impairment.” Social Security Ruling
(“SSR”) 96-2P, 1996 WL 374188, at *3 (S.S.A. July 2, 1996). The
opinion does not need to be consistent with all other evidence,
but rather there must not be “other substantial evidence in the
case record that contradicts or conflicts with the opinion.” Id.
If the treating source‟s opinion is not given controlling
weight, the ALJ considers the following factors when deciding
how much weight to give the opinion: length of treatment
relationship, frequency of examination, nature and extent of the
treatment relationship, relevant evidence used to support the
opinion, consistency of the opinion with the entire record, and
the expertise and specialized knowledge of the source. See 20
C.F.R. §404.1527(c)(2)-(6); SSR 96-2P, 1996 WL 374188, at *2;
see also Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013) (per
curiam) (setting forth the factors an ALJ must consider when
evaluating opinion evidence). After considering these factors,
the ALJ must “give good reasons” for the weight he affords to
the treating source‟s opinion. Burgess, 537 F.3d at 129-30
(citations omitted). “Failure to provide such „good reasons‟ for

11

not crediting the opinion of a claimant‟s treating physician is
a ground for remand.” Id. (quoting Snell, 177 F.3d at 133
(internal quotation marks omitted)).
Dr. Blatter, who submitted three medical opinions in this
case, began treating plaintiff in April 2007 shortly after
plaintiff attempted suicide and was discharged from an inpatient
psychiatric facility. [Tr. 521-24; 1077-80; 1330-34]
Dr. Blatter issued an opinion dated December 3, 2010,
concerning plaintiff‟s functional limitations. [Tr. 521-34] Dr.
Blatter reported that he treated plaintiff beginning in April
2007 on a weekly basis, with their last appointment occurring on
November 29, 2010. [Tr. 521] On that occasion the doctor noted
“slight improvement” with an Axis I diagnosis of Major
Depression, recurrent, severe with no psychotic features,
296.33, and Generalized Anxiety Disorder, 300.02.2 [Tr. 521] With
respect to plaintiff‟s psychiatric history, Dr. Blatter stated
that plaintiff suffered from “long standing depression and
anxiety with a high lethality suicide attempt in 2007 followed
by a lengthy hospitalization. Remains depressed and anxious
since then although not as bad as in 2007.” [Tr. 521] With
regard to current mental status, the doctor noted that

2

Medications included: Tofranil, Remeron, Risperdal, Klonopin,
and Valium. [Tr. 521]

12

plaintiff‟s appearance was “unkempt at times;” his cognitive
status was oriented 3/3, memory intact, attention and
concentration was good; speech was at a normal rate and volume
and thought process was linear and goal-directed; no delusions
or hallucinations were noted but there was “prominent negative
rumination about self and future” and intermittent “suicidal
thoughts;” depressed mood and dysphoric affect was noted,
“tearful at times, but reactive;” judgment and insight were
good. [Tr. 521-22] With respect to activities of daily living,
Dr. Blatter opined that plaintiff had: a “very serious problem”
using appropriate coping skills to meet ordinary demands of a
work environment and handling frustration; a “slight problem”
taking care of personal hygiene; and “no problem” caring for
physical needs or using good judgment regarding safety and
dangerous circumstances. [Tr. 522] The doctor stated that
plaintiff was “not presently working. Has not worked since
suicide attempt in 2007.” [Tr. 522] Dr. Blatter opined that
plaintiff had “no problem” with social interaction. [Tr. 524]
With respect to task performance, Dr. Blatter opined that
plaintiff had: a “very serious problem” performing work activity
on a sustained basis; and “no problem” carrying out single-step
or multi-step instructions, focusing long enough to finish
assigned simple activities or tasks, changing from one simple

13

task to another, performing basic work activities at a
reasonable pace/finishing on time. [Tr. 524] Dr. Blatter added:
“The demands of a work environment (pressure to accomplish
tasks, relationship with supervisor, etc.) are likely to present
a serious challenge and would exacerbate depression.” [Tr. 524]
In a second opinion dated June 29, 2011, Dr. Blatter
indicated that he continued weekly therapy with plaintiff, with
a most recent appointment on June 27, 2011. [Tr. 1077-80] Dr.
Blatter noted no change in diagnoses, stating: “Remains
depressed and anxious. Unchanged since last report despite
ongoing attempts to find medication regimen that will result in
further improvement.”3 [Tr. 1077] The doctor noted no changes in
plaintiff‟s mental status, activities of daily living, social
interactions, or task performance since the last report. [Tr.
1077-79] The doctor opined that the “[d]emands of a work
environment would still present a serious challenge and would
exacerbate his depression and anxiety.” [Tr. 1079]
Note - My area of expertise is in mood disorders. I am
asst. clinical professor of psychiatry at Columbia
University. I have seen numerous cases of difficult to
treat depression in my career. Geoffrey‟s depression
has been one of the most difficult to treat and has
not responded well to numerous trials of different
3

Medications included: Zoloft, Wellbutrin, Ritalin, Klonopin and
Anafranil. [Tr. 1077]

14

antidepressant medications. I do not believe he
capable of working as a result of the depression.

is

[Tr. 1080]
The third opinion provided by Dr. Blatter was in the form
of a Mental Residual Functional Capacity Questionnaire completed
on September 24, 2012. [Tr. 1330-34] He indicated that he
continued weekly therapy with plaintiff since April 2007. [Tr.
1330] The doctor opined that plaintiff had an Axis I diagnosis
of Major Depression, recurrent, severe with no psychotic
features (296.33); Generalized Anxiety Disorder (300.02); and
Panic Disorder (300.01). [Tr. 1330] The doctor identified an
Axis IV diagnosis of “chronic mental illness, unemployment,
financial stress.” [Tr. 1330] A GAF score of 50 was assigned
noting that plaintiff‟s highest GAF score in the previous year
had been 60.4 Dr. Blatter stated that plaintiff has been treated

4

GAF rates overall psychological functioning on a scale of 0-100
that takes into account psychological, social, and occupational
functioning. A GAF in the range of 51 to 60 indicates
“[m]oderate symptoms (e.g. flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in
social, occupational, or school functioning (e.g. few friends,
conflicts with peers or co-workers).” American Psychiatric
Ass‟n, Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV), at 34 (4th ed. Rev. 2000). The DSM-V, issued in 2013,
“no longer uses GAF scores as a diagnostic tool for assessing a
patient‟s functioning because of the questionably probative
value of such scores.” Hagan v. Colvin, 52 F. Supp. 3d 167, 169
(D. Mass. 2014). However, the Social Security Administration has
issued an Administrative Memorandum indicating that “the SSA
will continue to receive and consider GAF scores just as it
would other opinion evidence, but scores must have supporting
15

with “[n]umerous antidepressant trials, antianxiety medication.
Patient remains with residual severe depression and anxiety.”5
[Tr. 1330] With respect to clinical findings, Dr. Blatter stated
that plaintiff continued to experience “low mood, tearfulness,
anxiety, poor concentration, hopelessness, worthlessness,
feelings of guilt, suicidal thoughts, anhedonia.” [Tr. 1330] The
report concludes: “Prognosis: Guarded.” [Tr. 1330]
Dr. Blatter reported that plaintiff‟s symptoms included:
anhedonia or pervasive loss of interest in almost all
activities; appetite disturbance with weight change; decreased
energy; thoughts of suicide; feelings of guilt or worthlessness;
generalized persistent anxiety; mood disturbance; difficulty
thinking or concentrating; recurrent and intrusive recollections
of a traumatic experience, which are a source of marked
distress; persistent disturbances of mood or affect;
apprehensive expectation; emotional withdrawal or isolation;
emotional lability; sleep disturbance; and recurrent severe
panic attacks manifested by a sudden unpredictable onset of
intense apprehension, fear, terror and sense of impending doom
occurring on the average of at least once a week. [Tr. 1331]
evidence to be given significant weight.” Bourinot v. Colvin, 95
F. Supp. 3d 161, 178 (D. Mass. 2015).
5

Medications included: Valium, Adderall, Zoloft, Wellbutrin, and
Seroquel. [Tr. 1330]

16

With respect to work-related activities, Dr. Blatter opined
that plaintiff had “no useful ability to function” and would be
unable to complete a normal workday and workweek without
interruptions from psychologically based symptoms; accept
instructions and respond appropriately to criticism from
supervisors; and deal with normal work stress. [Tr. 1332]

The

doctor explained that plaintiff‟s “[d]epressive symptoms and
severe anxiety are completely pervasive and crippling” and “are
exacerbated by critical supervision as per his history and
results can be devastating (suicidal behavior/psychiatric
hospitalization)” and “even „normal‟ work stress is
intolerable.” [Tr. 1332] Dr. Blatter also opined that plaintiff
was “seriously limited, but not precluded” from remembering
work-like procedures; making simple work-related decisions;
performing at a consistent pace without an unreasonable number
and length of rest periods; asking simple questions or
requesting assistance; or responding appropriately to changes in
a routine work setting. [Tr. 1332] Dr. Blatter found plaintiff‟s
ability was “limited but satisfactory” to understand, remember
and carry out very short and simple instructions; maintain
attention for two hour segments; and sustain an ordinary routine
without special supervision; and “unlimited or very good” at
maintaining regular attendance and punctuality within customary,

17

usually strict tolerances; working in coordination with or
proximity to others without being unduly distracting them or
exhibiting behavioral extremes; and awareness of normal hazards
and taking appropriate precautions. [Tr. 1332] With respect to
mental abilities and aptitudes needed to perform semiskilled and
skilled work, Dr. Blatter opined that plaintiff had “no useful
ability to function” in dealing with the stress of semiskilled
and skilled work; was “seriously limited, but not precluded”
from understanding and remembering detailed instructions; and
was “limited but satisfactory” in setting realistic goals or
making plans independently of others. [Tr. 1333] The doctor
stated that he based his opinion on the limiting “[e]ffects of
depression, anxiety, and side effects of medication.” [Tr. 1333]
With respect to mental abilities and aptitude needed to perform
particular types of jobs, Dr. Blatter opined that plaintiff‟s
ability was “limited but satisfactory” to maintain socially
appropriate behavior and “[a]dhere to basic standards of
neatness and cleanliness;” and “unlimited or very good” to
interact appropriately with the general public, travel in
unfamiliar places, and use public transportation. [Tr. 1333] Dr.
Blatter added that plaintiff “experiences attacks of severe
nausea and vomiting when under stress.” [Tr. 1333] The doctor
found that plaintiff‟s psychiatric impairment would cause him to

18

be absent from work more than four days per month and was
expected to last at least twelve months. [Tr. 1334] Dr. Blatter
found no signs of malingering, finding that plaintiff‟s
impairments were reasonably consistent with the symptoms and
functional limitations described in the evaluation. [Tr. 1334]
The ALJ erred in her treatment of Dr. Blatter‟s opinion in
several respects. First, the ALJ found that Dr. Blatter‟s
opinions deserved “little evidentiary weight.” [Tr. 184] ALJ
Horton was required “to consider several factors in determining
how much weight [the opinion] should receive.” Burgess, 537 F.3d
at 129 (citing 20 C.F.R. §404.1527(d)(2)); Greek, 802 F.3d at
375.
In order to override the opinion of the treating
physician, [the Second Circuit has] held that the ALJ
must
explicitly
consider,
inter
alia:
(1)
the
frequen[cy], length, nature, and extent of treatment;
(2) the amount of medical evidence supporting the
opinion; (3) the consistency of the opinion with the
remaining medical evidence; and (4) whether the
physician is a specialist.
Selian, 708 F.3d at 418 (citing Burgess, 537 F.3d at 129); see
also 20 C.F.R. 404.1527(c)(2). Failure on the part of the ALJ to
provide “„good reasons‟ for not crediting the opinion of a
claimant‟s treating physician is a ground for remand.” Burgess,
537 F.3d at 129-30 (quoting Snell, 177 F.3d at 133 (internal
quotation marks omitted)); see also Schaal v. Apfel, 134 F.3d
496, 505 (2d Cir. 1998) (“We hold that the Commissioner‟s
19

failure to provide „good reasons‟ for apparently affording no
weight to the opinion of plaintiff's treating physician
constituted legal error.”).
Here, the ALJ considered Dr. Blatter‟s three opinions. [Tr.
183]. In weighing the opinions of plaintiff‟s treating
psychiatrist, the ALJ stated:
Although Dr. Blatter is a treating medical source, his
opinion that the claimant cannot sustain even ordinary
work pressures on a full-time basis is granted little
evidentiary weight. His recent report that the
claimant is crippled by his impairments is entirely
inconsistent
with
the
recent
treatment
record
indicating that the claimant engages in a number of
activities and exhibits few objective mental status
abnormalities. Even Dr. Blatter indicated that the
claimant was fully oriented with intact memory,
concentration, and attention. His reports of severe
anxiety with nausea are contradicted by claimant‟s
reports that his anxiety was under good control with
medication (Exhibit 29F). Overall, Dr. Blatter‟s
findings
of
a
complete
inability
to
work
are
internally inconsistent and largely unsupported by
treatment notes and objective mental status findings
throughout the longitudinal treatment record. His
medical opinion is granted little weight.
[Tr. 184] These few sentences are insufficient to qualify as a
“comprehensive[] set[ting] forth [of] reasons for the weight
assigned to a treating physician‟s opinion.” Burgess, 537 F.3d
at 129 (quoting Halloran v. Barnhart, 362 F.3d 28, 33 (2004);
citing 20 C.F.R. § 404.1527(c)(2) (stating that the agency “will
always give good reasons in our notice of determination or
decision for the weight we give [the claimant‟s] treating

20

source‟s opinion”)). As noted above, the Second Circuit has
provided a list of factors that an ALJ must explicitly consider
before discounting a treating physician‟s opinion. The ALJ did
not explicitly consider the factors enumerated in the
regulations and identified by the Circuit in weighing Dr.
Blatter‟s opinions. See Selian, 708 F.3d at 418; 20 C.F.R.
§416.927(c)(1)-(6). There is no mention of the frequency or
duration of the treatment relationship, any medical evidence
that does support Dr. Blatter‟s opinion, or his specialization.
Defendant argues that the ALJ‟s decision is sufficiently
comprehensive because “the ALJ noted that these opinions came
from plaintiff‟s treating psychiatrist, implicating the length,
frequency, nature, and extent of the treatment relationship.”
[Doc. #18 at 5] Mere mention of the fact that an opinion comes
from a treating psychiatrist is not a comprehensive explanation
of the reasons for the assignment of weight and does not
constitute explicit consideration of the required factors.
Because it is not clear from the ALJ‟s opinion that she
considered all of the factors enumerated in the regulations, the
ALJ failed to give “good reasons” for according little weight,
and remand is warranted to ensure that all of the enumerated
factors were given appropriate consideration.

21

It is important to note that Dr. Blatter is the only
treating psychiatrist; he is a specialist in the field of mental
health; and he treated plaintiff on a weekly basis for
approximately five years. See 20 C.F.R. §416.927(c)(1)-(6).
Moreover, Dr. Blatter‟s opinions are consistent with much of the
evidence of record, including his contemporaneous treatment
notes. See 20 C.F.R. §416.927(c)(4). For example, treatment
records consistently reference persistent severe depression and
anxiety with various medication trials. [Tr. 530-36, 538-39,
542, 549, 557, 560, 564-65, 567, 571, 573-76, 578, 580-81, 584,
586-87, 594, 598, 600, 602, 608, 610, 617, 621, 624, 627-28,
632, 634-35, 640, 642-44, 646, 651-52, 654, 657, 659-60, 127274, 1276-77, 1284, 1288-89, 1291-92, 1294, 1299, 1303, 1309,
1311, 1313, 1316, 1318, 1320, 1322-23] Treatment notes also
capture a longitudinal record of anxiety attacks with nausea and
vomiting. [Tr. 538, 545, 565, 568-69, 576, 580, 584, 594, 598,
607-08, 627, 628, 633, 640, 644, 1273, 1276, 1277, 1283, 1307,
1311, 1318]
The ALJ is correct that some of the medical evidence
appears to undermine Dr. Blatter‟s conclusions. However, “a
reviewing court must consider the record as a whole, not seize
upon „a specific quantum‟ of evidence that, taken in isolation,
might sustain the administrative decision.” Grey v. Heckler, 721

22

F.2d 41, 46 (2d Cir. 1983) (citing Day v. Weinberger, 522 F.2d
1154, 1156 (9th Cir. 1975)). Plaintiff‟s ability to carry out a
“number of activities” does not equate to the ability to perform
substantial gainful activity. [Tr. 184]. See Carrier-Titti v.
Astrue, No. 06CV0647(VEB), 2009 WL 1542553, at *10 (N.D.N.Y.
June 1, 2009) (“[A] claimant‟s activities of daily living may
not accurately reflect an ability to work day in and day out,
for eight hours per day, five days per week. Performing simple
daily activities, such as dusting, doing small loads of laundry,
bathing and grooming one‟s self, and walking a dog for short
distances, does not necessarily prove a claimant can perform
regular work activity.”) (citation omitted).6

6

The Court is further compelled to acknowledge the references in
the record to plaintiff‟s second suicide attempt in January
2013, less than two months after the ALJ‟s November 29, 2012,
ruling. [Tr. 530, 531, 538, 586, 598, 617, 624, 627, 634, 640,
646, 651-52, 670, 1272, 1277, 1289, 1299, 1303, 1313, 1316,
1322] Plaintiff was admitted to Stamford Hospital on January 24,
2013, after writing suicide notes to his wife and Dr. Blatter
and taking approximately 40 valium pills. [Tr. 110, 75]
Plaintiff was treated at Stamford Hospital for a week and
transferred to New York-Presbyterian Hospital (“NYP”) for a
three week in-patient admission, where he was assigned a GAF
score of 21-30. [Tr. 75, 100, 112] During his in-patient stay,
plaintiff received eight ECT treatments. [Tr. 100] Although the
Court acknowledges these records, it bears noting that said
records cannot form the basis upon which the Court rests its
conclusion in light of the fact that these records (1) do not
relate to the time period at issue, and (2) appear to reflect a
post-decision deterioration of a pre-existing condition. See
Shrack v. Astrue, 608 F. Supp. 2d 297, 302 (D. Conn. 2009)
(“Evidence is material in this context if it is relevant to the
23

This matter is remanded to the Commissioner for further
administrative proceedings consistent with this Ruling. On
remand the Commissioner will address the other claims of error
not discussed herein and the treatment records that post-date
the ALJ‟s opinion that were provided to the Appeals Council.
Finally, the Court offers no opinion on whether the ALJ should
or will find plaintiff disabled on remand. Rather the Court
finds remand is appropriate to permit the ALJ to reweigh the
medical opinion evidence.
VI.

CONCLUSION
For the reasons stated, plaintiff‟s Motion to Remand [Doc.

#15] is GRANTED. Defendant‟s Motion for an Order Affirming the
Decision of the Commissioner [Doc. #18] is DENIED.
The Clerk‟s Office is instructed that, if any party appeals
to this Court the decision made after this remand, any
subsequent social security appeal is to be assigned to the
Magistrate Judge who issued the Ruling that remanded the case.
This is not a Recommended Ruling.

The parties consented to

proceed before a United States Magistrate Judge [Doc. # 22] on

plaintiff‟s condition during the time period at issue and it is
probative.” (citing Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir.
2008))); Bergmann v. Apfel, 207 F.3d 1065, 1069-70 (8th Cir.
2000) (“[T]o qualify as „material,‟ the additional evidence must
not merely detail after-acquired conditions or post-decision
deterioration of a pre-existing condition.” (collecting cases)).
24

November 30, 2015, with appeal to the Court of Appeals. Fed. R.
Civ. P. 73(b)-(c).
SO ORDERED at New Haven, Connecticut this 5th day of
January, 2016.
____/s/_____________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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