Adams v. Colvin

Filing 20

ORDER granting 13 Motion to Remand to Agency; denying 15 Motion to Affirm the Decision of the Commissioner for the reasons set forth in the attached Ruling. Signed by Judge William I. Garfinkel on 9/22/16. (Cates, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

GLENN ADAMS,
Plaintiff,
v.

No. 3:15-cv-1061(WIG)

CAROLYN COLVIN,
Acting Commissioner of
Social Security,
Defendant.
_____________________________________X

RULING
Plaintiff Glenn Adams has filed this appeal of the adverse decision of the Commissioner
of Social Security denying his application for disability insurance benefits (“DIB”). Plaintiff
now moves, pursuant to 42 U.S.C. § 405(g), for an order reversing this decision, or in the
alternative remanding the matter for rehearing. [Doc. # 13]. Defendant has responded with a
motion to affirm the decision of the Commissioner. [Doc. # 15]. The undersigned heard oral
argument on September 16, 2016. After careful consideration of the arguments raised by both
sides, the Court has determined that this matter should be remanded for additional proceedings
consistent with this Ruling.
Legal Standard
The standards for determining a claimant’s entitlement to disability benefits, the
Commissioner’s five-step framework for evaluating disability claims, and the district court’s
review of the Commissioner’s final decision are well-established. The Court is following those
standards, but does not repeat them here.

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Background1
Plaintiff’s DIB application alleged a disability onset date of September 23, 2011. His
claim was denied at both the initial and reconsideration levels. On November 19, 2013, a
hearing was held before Administrative Law Judge Ryan A. Alger (“the ALJ”). The ALJ denied
Plaintiff’s claim in a decision dated January 21, 2014. The ALJ found at step one in the
sequential evaluation process that Plaintiff had not engaged in substantial gainful activity since
the alleged onset date. (R. 13). At step two, the ALJ found that Plaintiff’s severe impairments
were diabetes and spine disorder. (R. 14). At the third step, the ALJ found that Plaintiff’s
impairments, singly and in combination, did not meet or equal the severity of any of the listed
impairments. (R. 14-15). The ALJ then found that Plaintiff had the residual functional capacity
(“RFC”) to perform the full range of light work. (R. 15). The ALJ ended his analysis at step
four upon finding that Plaintiff was capable of performing his past relevant work as a shuttle
driver. (R. 18).
After the ALJ’s unfavorable decision, Plaintiff requested Appeals Council (“AC”)
review. (R. 7). Along with his request for review, Plaintiff submitted additional evidence to the
AC. This evidence consisted of an electromyography (“EMG”) taken on May 12, 2014. (R.
303-305). The EMG consultant, Dr. Boland, opined that the EMG was abnormal, with
electrodiagnostic evidence of chronic L5 segmental axon loss (denervation) most consistent with
the chronic lumbar radiculopathy at that level. (R. 303). Dr. Boland also opined that there was
mild chronic axon loss in one L2-4 segment muscle (vastus lateralis, femoral nerve) which was
not further localizable. (Id.). There was no acute or recent appearing denervation. (Id.).

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The parties filed a Stipulation of Facts in this matter. See ECF No. 13-2. The Court adopts
these facts and incorporates them by reference herein.
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The AC denied Plaintiff’s request for review. (R. 1-5). In its denial, the AC found that
the new evidence did not provide a basis for changing the ALJ’s decision. 2 (R. 2). The AC’s
denial became the final decision of the Commissioner; this action followed.
Discussion
The AC’s evaluation of additional evidence is governed by 20 C.F.R. § 405.401(c). This
regulation provides as follows:
If you submit additional evidence, the Appeals Council will consider the
additional evidence only where it relates to the period on or before the date of the
hearing decision, and only if you show that there is a reasonable probability that
the evidence, alone or when considered with the other evidence of record, would
change the outcome of the decision, and
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic limitation(s) that
prevented you from submitting the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance beyond
your control prevented you from submitting the evidence earlier.
20 C.F.R. § 405.401(c). In this case, the additional evidence should have been considered.
First, the EMG relates to the period on or before the date of the hearing decision.
Although the study was taken approximately four months after the ALJ issued his decision, the
results of the EMG show a chronic condition. (R. 303). Its findings are consistent with the
symptoms Plaintiff testified to at the hearing, including that his back pain had gotten
progressively worse since 2002, and that he has back pain generally. (R. 28, 30, 32-34). In
addition, there is nothing in the record suggesting that there was a newly inflicted injury that was
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There is no dispute that the AC did not apply the correct regulation in its review of the new
evidence. The review appears to have been conducted under 20 C.F.R. § 404.970(b), which is
the regulation used outside of the New England region. In New England, however, 20 C.F.R. §
405.401(c) applies to the AC’s evaluation of additional evidence. The Commissioner argues that
application of the improper standard was harmless error because application of the correct
standard would not change the final decision in this matter. The Court agrees with the
Commissioner that the regulations are “substantially similar.” See Orriols v. Colvin, No. 3:14cv-863(SRU), 2015 WL 5613153, at *3 (Sept. 24, 2015). Nevertheless, under either standard,
although a close call, the Court finds that remand is appropriate.
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captured in the EMG results. Rather, Plaintiff’s primary care physician referred Plaintiff for an
EMG in May 2014 because of Plaintiff’s complaints of right leg numbness. (R. 303). Dr.
Boland noted that Plaintiff had at least a nine year history of right leg numbness, mainly near the
lateral ankle and lower leg. (Id.). At the hearing, Plaintiff testified to numbness in his right leg.
(R. 32). In light of the substantial evidence of the persistent and evolving nature of Plaintiff’s
back impairment, the EMG study does relate to the period on or before the date of the hearing
decision.
The new evidence also meets the second element of Section 405.401(c): there is a
reasonable probability that it, alone or when considered with other evidence of record, would
have changed the outcome of the decision. In assessing an RFC for light work, the ALJ found
that Plaintiff’s allegations of symptoms and limitations were only “marginally credible” because
the record provided “little support for his allegations of significant symptoms and limitations.”
(R. 15). The ALJ cited to the most recent diagnostic test before him – an MRI from 2004 –
which showed only moderate to severe stenosis at L3-L4 and mild to moderate stenosis at L4-L5.
(Id.). The ALJ also noted that Plaintiff’s last visit to a specialist was in 2005, and that he did not
see nor was referred to a specialist during the relevant period in support of his credibility
determination. (R. 15-16). The new evidence has a reasonable probability of changing the
outcome of the decision because it directly relates to the ALJ’s credibility findings. The EMG
was conducted after Plaintiff was referred to a specialist, which the ALJ noted has not occurred
in discounting Plaintiff’s credibility. The abnormal EMG findings to which Dr. Boland opined
thus would have bolstered Plaintiff’s allegations as to the severity of his symptoms. The EMG
also provides valuable information on the progression of Plaintiff’s chronic back impairment.

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Because the new evidence could have impacted the ALJ’s assessment of Plaintiff’s credibility,
the second element of Section 401.405(c) is met.
Third, Plaintiff clearly meets the good cause requirement of Section 401.405(c): he was
prevented from submitting the evidence by an unavoidable circumstance beyond his control.
The evidence in question was not available to the Plaintiff until four months after the hearing
decision. At oral argument, the Commissioner made a compelling argument that the period
under review must come to a close eventually. In this case, though, the chronic nature of the
impairment, along with the fact that the Plaintiff was uninsured and was receiving care at a
center for low income and uninsured persons that did not appear to include comprehensive
orthopedic services, allows Plaintiff to satisfy the good cause requirement.
On a last note, this case put the Court (and counsel) in the position of debating the
importance of a diagnostic test that had not been contextualized. How Plaintiff’s primary care
physician interpreted the EMG, any changes in a course of treatment prescribed, and to what
extent this objective finding would impact Plaintiff’s functional limitations – all considerations
critical to a disability finding – are not included in any records before the Court. This makes
remand even more compelling: along with remand for consideration of new evidence, further
development of the record upon remand would be valuable.
Conclusion
After a thorough review of the administrative record and consideration of the arguments
raised by the parties, Plaintiff’s motion to remand is granted. This matter should be remanded
for consideration of the EMG study, and for further development of the administrative record as
necessary.
SO ORDERED, this 22nd day of September, 2016, at Bridgeport, Connecticut.

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/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge

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