Smith v. Commissioner of Social Security
Filing
18
ORDER: The plaintiff's motion for an order remanding the commissioner's decision (Doc. No. 12 ) for a rehearing is hereby GRANTED and the commissioner's motion to affirm that decision (Doc. No. 13 ) is hereby DENIED for the reasons stated in the attached ruling. The Clerk shall remand this case to the commissioner for rehearing and close the case. Signed by Judge Alvin W. Thompson on 2/16/17. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARL AARON SMITH,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
:
:
:
: Civil No. 3:15CV01166 (AWT)
:
:
:
:
:
RULING ON THE PLAINTIFF’S MOTION TO REVERSE OR REMAND AND THE
DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
This is an administrative appeal following the denial of
plaintiff Carl Aaron Smith’s application for disability
insurance benefits (“DIB”) and supplemental security income
benefits (“SSI”)1
It is brought pursuant to 42 U.S.C. §§ 405(g)
and 1382(c)(3).
Under the Social Security Act (“SSA”), the “Commissioner of
Social Security is directed to make findings of fact, and
decisions as to the rights of any individual applying for a
payment under [the SSA].” 42 U.S.C. § 405(b)(1). The
Commissioner’s authority to make such findings and decisions is
delegated to administrative law judges (“ALJs”). See 20 C.F.R.
§ 404.929. Claimants can in turn appeal an ALJ’s decision to
the Social Security Appeals Council. 20 C.F.R. § 404.967. If
the appeals council declines review or affirms the ALJ opinion,
the claimant may appeal to the United States District Court.
See 20 C.F.R. § 404.981. Section 205(g) of the Social Security
Act provides that “[t]he court shall have power to enter, upon
the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g).
1
The plaintiff now moves for an order reversing the decision
of the Commissioner of the Social Security Administration
(“Commissioner”), or in the alternative, an order remanding the
case for a rehearing.
The Commissioner, in turn, has moved for
an order affirming the decision.
The plaintiff claims that the ALJ improperly concluded that
the plaintiff did not have an impairment that meets or equals a
listed impairment and improperly applied the treating physician
rule when making the Listings and Residual Functional Capacity
(“RFC”) determinations.
For the reasons set forth below, the plaintiff’s motion for
remand is being granted, and the Commissioner’s motion for an
order affirming the ALJ’s decision is being denied.
I.
FACTS
A.
Administrative Proceedings
An examination of the record discloses the following:
On
July 19, 2011, the plaintiff filed an application for DIB and
SSI benefits for an alleged disability that commenced on
November 1, 2009 and continued through December 31, 2011, the
date on which he was last insured.2
(R. 11-12, 254, 261.)
The
In order to be entitled to disability benefits, a plaintiff
must “have enough social security earnings to be insured for
disability, as described in § 404.130.” 20 C.F.R. § 404.315(a)
(1).
2
2
alleged onset date was amended to October 25, 2011 at a hearing
on October 16, 2013.
(R. 11, 39.)
On March 2, 2012, a disability adjudicator denied the
plaintiff’s initial request for DIB and SSI benefits (R. 11, 95,
114.) and on June 27, 2012 denied his request for
reconsideration. (R. 11, 159-172.)
On October 16, 2013, the plaintiff appeared with counsel
for a hearing before an ALJ.
(R. 33-77.)
the ALJ issued a decision denying benefits.
On January 27, 2014,
(R. 8-32.)
On June
5, 2015, the appeals council denied the plaintiff’s request for
review thereby making the ALJ’s decision final.
(R. 1-7.)
This
appeal followed.
B.
The Treating Physician’s Opinions
Dr. Kristin Giannini is a general practice family physician
and the plaintiff’s primary treating physician.
In evidence are
her records dated 1/1/06 to 8/18/11 (R. 470-710), 9/6/11 to
3/13/12 (R. 748-69) and the Medical Source Statement of Ability
to Do Work Related Activities (Physical) (“MSS”) dated 9/26/13
(R. 773-79, 784-88).
As to ambulation, Dr. Giannini’s 9/26/13 MSS indicates
under “Sitting/Standing/Walking” that the plaintiff can walk for
zero minutes but also that he does not require the use of a cane
to ambulate.
(R. 774, 785.).
With regard to these opinions,
the MSS asks the physician to
3
[i]dentify the particular medical or clinical findings
(i.e., physical exam findings, x-ray findings, laboratory
test results, history, and symptoms including pain, etc.)
which support [the] assessment or any limitations and why
the findings support the assessment.
(R. 774, 785.)
Dr. Giannini left this area blank.
Dr. Giannini
states in the MSS that the plaintiff cannot “walk a block at a
reasonable pace on rough or uneven surfaces”. (R. 786 (emphasis
added).)
The MMS asks the physician to “identify the medical
findings that support this assessment and why the finding[s]
support the assessment”.
area blank.
(R. 778.)
Dr. Giannini also left this
She did not identify any medical or clinical
findings or rationale to support these assessments.
In the same MSS, Dr. Giannini noted that the plaintiff
could shop, travel independently, use public transportation, and
climb a few steps at a reasonable pace with the use of a hand
rail.
(R. 778.)
C.
The ALJ’s Decision
1.
The Listings Determination
The ALJ found that the plaintiff did “not present with an
impairment that, either singly or in combination, medically
meets or equals the severity requirements of any listed
impairments”.
(R. 15.)
He reasoned that
[a]lthough there is evidence of a gross anatomical ankle
deformity with chronic joint pain/stiffness and joint space
narrowing, there is no documentation in the medical
evidence of record that the claimant’s impairment involves
4
one major peripheral weight bearing joint, resulting in the
inability to ambulate effectively. . . . [T]he claimant’s
physical
examinations
show
that
he
presented
with
tenderness and swelling of his left ankle, requiring the
use of a brace. However, the claimant does not require the
use of a cane.
Although he has an antalgic gait, he is
able to ambulate independently. Therefore, the undersigned
finds that the claimant’s ankle impairment does not meet or
medically equal the criteria of listing 1.02. . . .
(R. 15.) (emphasis added).
Also, the ALJ concluded that the
plaintiff had “mild restriction in his activities of daily
living.”
(R. 16.)
He reasoned that
a typical day involve[ed] taking a shower, cleaning his
room, watching Sports Center on television, helping his
mother around the house, helping her to the front door, and
driving her to the store. . .
At a February 23, 2012
psychological
consultative
evaluation,
the
claimant
reported that he was able to shower daily, brush his teeth
daily, cook for himself, go grocery shopping, and clean his
room. Exhibit 9F. He admitted that he was independent in
his personal care skills.
He also admitted to watching
sports, fishing, and hunting shows.
He stated the he
drives twice a week to go grocery shopping and also drove
himself to the hearing.
As the claimant “is able to
independently care for himself and help his elderly mother
at times, the undersigned finds that he has no more than a
mild restriction in his activities of daily living.”
(R. 16.)
In making the Listings determination, the ALJ did not
identify the treating physician’s opinions or the factors
considered in weighing those opinions, and the ALJ did not give
the required “good reason” for rejecting her Listings opinions.
5
2.
RFC
As to the RFC determination the ALJ found that the
plaintiff
has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567 (b) and 416.967(b) except he
can stand/walk for up to 4 hours in an 8-hour workday, sit
for up to 6 hours in an 8-hour workday, and requires a
sit/stand option as well as the use of a cane when walking
on uneven surfaces.
He can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch and crawl, and never
climb ladders, ropes or scaffolds.
He should avoid
concentrated exposure to fumes, odors, dust, gases, and
poor ventilation. He is further limited to simple tasks.
(R. 18.)
His reasoning was as follows:
As required, the undersigned has considered the
opinions proffered by all acceptable medical sources
in
assessing
the
claimant's
residual
functional
capacity.
First, the undersigned considered the
opinions of the claimant's treating sources.
In a
July 25, 2013 Medical Letter, primary care physician
Dr. Kristin Giannini, opined that the claimant has
several medical issues that prevent[s] him from
working at least for the next year, including disc
problems in his back that develops numbness in his
legs, new tendon ruptures of his left ankle, extreme
anxiety related to his medical issues, and asthma that
exacerbates
very
easily
and
has
led
to
hospitalizations. Exhibit 12F. She explained that the
only position that alleviates the back pain and
numbness in the legs is lying down and that he was
prescribed narcotic pain medicine for the excruciating
pain he experiences with walking. In a September 26,
20l3 Medical Source Statement, Dr. Giannini specified
that the claimant is able to lift and carry up to 10
pounds and sit for 4 hours in an 8-hour workday, but
cannot stand or walk.
Exhibits 13F, 16F.
She also
found
that
the claimant
can
occasionally
reach
overhead bilaterally, never do all other reaching or
pushing/pulling, and occasional operation of foot
6
controls bilaterally.
She limited the claimant to
occasional operation of a motor vehicle and no
exposure to unprotected heights, moving mechanical
parts, humidity and wetness, extreme heat and cold,
and dust, odors, fumes, and pulmonary irritants.
Lastly, she limited the claimant to no climbing,
balancing, stooping, kneeling, crouching and crawling.
The
undersigned
affords
little
weight
to
Dr.
Giannini[‘s] opinions as they are inconsistent with
the overall medical evidence and lacking in basis.
She cites problems such as extreme anxiety and asthma
that is easily exacerbated.
However, the evidence
shows that the claimant has been treated for a long
time with Klonopin, which suggest that his symptoms
are controlled.
This is also an area of medicine
outside her expertise, which makes her opinion less
reliable.
Additionally, the claimant has not needed
emergency treatment for his asthma since his amended
alleged onset date and is able to walk on level
surfaces and climb a flight of stairs. The standing,
walking and postural limitations that she has given
the claimant are inconsistent with his activities of
daily living, which as stated above involves caring
for himself and helping his mother.
Furthermore, she
has given the claimant manipulative limitations but
there is no evidence that the claimant has problems
using his hands.
She limited the claimant to only
occasional use of a motor vehicle but the claimant did
not testify to any problems driving.
In fact, he
indicate[s] that he is able to drive to the grocery
store and that he drove himself to the hearing.
(R. 23, 24.)
II.
LEGAL STANDARD
“A district court reviewing a final . . . decision [of the
Commissioner of Social Security] pursuant to section 205(g) of
the Social Security Act, 42 U.S.§ 405(g), is performing an
appellate function.”
Cir. 1981).
Zambrana v. Califano, 651 F.2d 842 (2d
“The findings of the Commissioner of Social
7
Security as to any fact, if supported by substantial evidence,
[are] conclusive . . . .”
42 U.S.C. § 405(g).
Accordingly, the
court may not make a de novo determination of whether a
plaintiff is disabled in reviewing a denial of disability
benefits.
Id.; Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990).
Rather, the court’s function is
to ascertain whether the Commissioner applied the correct legal
principles in reaching his conclusion, and whether the decision
is supported by substantial evidence.
F.2d 983, 985 (2d Cir. 1987).
Johnson v. Bowen, 817
Therefore, absent legal error,
this court may not set aside the decision of the Commissioner if
it is supported by substantial evidence.
675 F.2d 464, 467 (2d Cir. 1982).
Berry v. Schweiker,
Further, if the
Commissioner’s decision is supported by substantial evidence,
that decision will be sustained, even where there may also be
substantial evidence to support the plaintiff’s contrary
position.
Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
The Second Circuit has defined substantial evidence as
“‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”
Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)).
Substantial evidence must be “more than a
scintilla or touch of proof here and there in the record.”
Williams, 859 F.2d at 258.
8
The SSA establishes that benefits are payable to
individuals who have a disability.
42 U.S.C. § 423(a)(1).
“The
term ‘disability’ means . . . [an] inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . .”
423(d)(1).
42 U.S.C. §
In order to determine whether a claimant is disabled
within the meaning of the SSA, the ALJ must follow a five-step
evaluation process as promulgated by the Commissioner.3
In order to be considered disabled, an individual’s
impairment must be “of such severity that he is not only unable
to do his previous work but cannot . . . engage in any other
The five steps are as follows: (1) The Commissioner considers
whether the claimant is currently engaged in substantial gainful
activity; (2) if not, the Commissioner considers whether the
claimant has a “severe impairment” which limits his or her
mental or physical ability to do basic work activities; (3) if
the claimant has a “severe impairment,” the Commissioner must
ask whether, based solely on the medical evidence, the claimant
has an impairment that “meets or equals” an impairment listed in
Appendix 1 of the regulations. If the claimant has one of these
enumerated impairments and meets the duration requirements, the
Commissioner will find him disabled, without considering
vocational factors such as age, education, and work experience;
(4) if not, the Commissioner then asks whether, despite the
claimant's severe impairment, he or she has the residual
functional capacity to perform his or her past work; and (5) if
the claimant is unable to perform his or her past work, the
Commissioner then determines whether there is other work which
the claimant could perform. 20 C.F.R. § 416.920(a)(4)(i)—(v).
The Commissioner bears the burden of proof on this last step,
while the claimant has the burden on the first four steps.
Gonzalez ex rel. Guzman v. Sec'y of U.S. Dep't of Health & Human
Servs., 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).
3
9
kind of substantial gainful work which exists in the national
economy.”
42 U.S.C. § 423(d)(2)(A).
“[W]ork which exists in
the national economy means work which exists in significant
numbers either in the region where such individual lives or in
several regions of the country.” Id.4
III. DISCUSSION
The plaintiff argues that the ALJ improperly concluded that
the plaintiff’s ankle condition did not meet or medically equal
listed impairment 1.02 because the devices that the plaintiff
used were indicative of ineffective ambulation (AFO brace, a
cane when walking on uneven surfaces, and both assistive devices
in combination); the plaintiff would have met one of the
examples listed in 1.00B2b(2) had the ALJ considered the
treating physician’s opinion that the plaintiff could not walk a
block at a reasonable pace on rough or uneven surfaces; and the
ALJ failed to apply the treating physician rule correctly.
The
defendant argues that the plaintiff did not satisfy the
requirements for the listed impairment because he did not use
assistive devices that limited functioning of both upper
The determination of whether such work exists in the national
economy is made without regard to (1) “whether such work exists
in the immediate area in which [the claimant] lives;” (2)
“whether a specific job vacancy exists for [the claimant];” or
(3) “whether [the claimant] would be hired if he applied for
work.” 42 U.S.C. § 423(d)(2)(A).
4
10
extremities and that substantial evidence5 supported the ALJ’s
conclusions.
A.
Listed Impairments
“For a claimant to show that his impairment matches a
Listing, it must meet all of the specified medical criteria. An
impairment that manifests only some of those criteria, no matter
how severely, does not qualify.”
Sullivan v. Zebley, 493 U.S.
521, 530 (1990).
The plaintiff bears the burden of showing that an
impairment satisfies the specified criteria.
Id.
In this case, the listing at issue is 1.02, which states:
Major dysfunction of a joint(s) (due to any cause):
Characterized
by
gross
anatomical
deformity
(e.g.,
subluxation,
contracture,
bony
or
fibrous
ankylosis,
instability) and chronic joint pain and stiffness with
signs of limitation of motion or other abnormal motion of
the
affected
joint(s),
and
findings
on
appropriate
medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint
(i.e., hip, knee, or ankle), resulting in inability to
ambulate effectively, as defined in 1.00B2b . . . .
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 1.02.
The regulatory standard for the criterion “inability to
ambulate effectively” is as follows:
2. How We Define Loss of Function in These Listings
Remand to address legal errors may result in additional
evidence being put into the record and thus change what
constitutes “substantial evidence”; therefore, the court does
not reach this issue.
5
11
a. General. Regardless of the cause(s) of a musculoskeletal
impairment, functional loss for purposes of these listings
is defined as the inability to ambulate effectively on a
sustained basis for any reason, . . . We will determine
whether an individual can ambulate effectively . . . based
on the medical and other evidence in the case record,
generally without developing additional evidence about the
individual's ability to perform the specific activities
listed as examples in 1.00B2b(2) . . . .
b. What We Mean by Inability To Ambulate Effectively
(1) Definition. Inability to ambulate effectively means an
extreme limitation of the ability to walk; i.e., an
impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or
complete activities. Ineffective ambulation is defined
generally
as
having
insufficient
lower
extremity
functioning (see 1.00J) to permit independent ambulation
without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities. . . .
(2) To ambulate effectively, individuals must be capable of
sustaining a reasonable walking pace over a sufficient
distance to be able to carry out activities of daily
living. They must have the ability to travel without
companion assistance to and from a place of employment or
school. Therefore, examples of ineffective ambulation
include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes, the
inability to walk a block at a reasonable pace on rough or
uneven surfaces, the inability to use standard public
transportation,
the
inability
to
carry
out
routine
ambulatory activities, such as shopping and banking, and
the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk
independently about one's home without the use of assistive
devices does not, in and of itself, constitute effective
ambulation.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, Listing 1.00B2a, b(1),
b(2)(emphasis added).
12
1.
Devices
As to devices, the plaintiff argues that the ALJ’s finding
that the "plaintiff does not require the use of a cane . . . .
[and] is able to ambulate independently" (R. 15) is erroneous
because he is required to ambulate with an AFO brace; that a
finding of independent ambulation contradicts assigning an RFC
that requires the plaintiff to use a cane when walking on uneven
surfaces6; and that the use of two devices, an AFO brace for
ambulation and a cane to ambulate on uneven surfaces, would be
tantamount to a finding of ineffective ambulation.
The
defendant argues that the plaintiff failed to satisfy the
requirements of Listing 1.00B2b(1) because he failed to
demonstrate that his lower body functioning requires the use of
a hand-held assistive device that limits functioning of both
upper extremities.
However, the full definition of “inability
to ambulate effectively”[7] and the Commissioner’s Federal
Unlike effective ambulation requirements for activities of
daily living under 1.02, the RFC assesses an individual’s
ability to do sustained work on a regular and continuing basis
under specific circumstances such as ambulation on uneven
surfaces under certain working conditions 8-hours a day, five
days a week. See Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.
1999). The court does not reach this issue at this time because
this case is being remanded for other reasons. The ALJ may
address this distinction directly on rehearing, if necessary.
7 Listing 1.00B2a notes that functional loss for purposes of
these listings is defined as the inability to ambulate
effectively on a sustained basis for any reason, . . . based on
the medical and other evidence . . . . Listing 1.00B2b requires
“an extreme limitation of the ability to walk; i.e., an
6
13
Register commentary make clear that use of devices is not
dispositive.8
2.
Listed Examples
The plaintiff also argues that if the ALJ had considered
the treating physician’s opinion that the plaintiff was unable
to walk a block at a reasonable pace on rough or uneven
surfaces, he would have found ineffective ambulation because it
impairment[] that interferes very seriously with the
individual’s ability to independently initiate, sustain, or
complete activities.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1,
Listing 1.00B2a, b(1). Also, in order to be considered disabled,
an individual’s impairment must be “of such severity that he is
not only unable to do his previous work but cannot . . . engage
in any other kind of substantial gainful work which exists in
the national economy.” 42 U.S.C. § 423(d)(2)(A).
8
See Dobson v. Astrue, 267 F. App’x 610, 612 (9th Cir. 2008)
(holding “ALJ erroneously treated as dispositive the fact that
[the claimant] was not medically required to use an assistive
device; noting that “while the required use of a two-handed
assistive device is independently sufficient to establish
ineffective ambulation, ineffective ambulation may also be
established if the claimant otherwise meets the definition and
examples set forth in this Listing” and comparing Revised
Medical Criteria for Determination of Disability,
Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58010,
58027 (Nov. 19, 2001)(“The explanation is intended to mean that
individuals who can only walk with the aid of hand-held
assistive devices requiring the use of both upper extremities
would meet the definition of inability to ambulate
effectively.”), with id. at 58013 (“[I]f someone who uses one
cane or crutch is otherwise unable to effectively ambulate, the
impairment(s) might still meet or equal a listing.”), and id. at
58026–27 (“The criteria do not require an individual to use an
assistive device of any kind.... [The] explanation and examples
should make it clear that this applies to anyone who cannot walk
adequately.”), and id. at 58027 (“[W]e recognize that
individuals with extreme inability to ambulate do not
necessarily use assistive devices.... Furthermore, we hope it is
clear that the criteria are not intended to exclude all but
those confined to wheelchairs.”)).
14
is one of the examples listed in Section 1.00B2b(2).
Section
1.00B2a states that “functional loss . . . is . . . based on the
medical evidence and other evidence in the case record,
generally without developing additional evidence about the
individual’s ability to perform the specific activities listed
as examples . . . .”
1.00B2a.
20 C.F.R. Pt. 404, Subpt. P, App. 1, §
See also Cowger v. Astrue, No. 2:10 CV 41, 2011 WL
220218, at *4 (N.D.W. Va. Jan. 21, 2011) (finding that the ALJ
was not required to develop an example of ineffective ambulation
under section 1.00B2b(2) and “properly relied upon the
plaintiff’s testimony, Function Report, and her treating
physician’s documentation to conclude that the plaintiff could
effectively ambulate”).
However, the situation is different
when there is a treating physician’s opinion that the plaintiff
has an inability to perform one of the specific activities
listed as an example.
In this case, we have the treating
physician’s opinion that the plaintiff was unable to walk a
block at a reasonable pace on rough or uneven surfaces and this
would have been dispositive if substantiated by the evidence
because this is a listed example.
While an ALJ “need not []
specifically address[] every piece of evidence . . . probative
evidence . . . should not go unexplained.”
Dunham v. Astrue,
603 F. Supp. 2d 13, 20-21 (D.D.C. 2009) (noting that the
judiciary can scarcely perform its review function without some
15
indication, not only of what evidence was credited, but also
whether other evidence was rejected rather than simply ignored).
Because the ALJ did not mention the treating physician’s
opinions, the treating physician rule is at issue.
B.
The Treating Physician Rule
“[T]he 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 v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
(quoting 20 C.F.R. § 404.1527(d)(2)); see also Mariani v.
Colvin, 567 F. App’x 8, 10 (2d Cir. 2014) (holding that “[a]
treating physician’s opinion need not be given controlling
weight where it is not well-supported or is not consistent with
the opinions of other medical experts” where those other
opinions amount to “substantial evidence to undermine the
opinion of the treating physician”).
“The regulations further
provide that even if controlling weight is not given to the
opinions of the treating physician, the ALJ may still assign
some weight to those views, and must specifically explain the
weight that is actually given to the opinion.”9
Schrack v.
In step three the ALJ notes the fact that the plaintiff “does
not require the use of a cane” to support his conclusion that
9
16
Astrue, 608 F. Supp. 2d 297, 301 (D. Conn. 2009) (citing Schupp
v. Barnhart, No. Civ. 3:02CV103 (WWE), 2004 WL 1660579, at *9
(D. Conn. Mar. 12, 2004)).
It is “within the province of the
ALJ to credit portions of a treating physician’s report while
declining to accept other portions of the same report, where the
record contained conflicting opinions on the same medical
condition.”
Pavia v. Colvin, No. 6:14-cv-06379 (MAT), 2015 WL
4644537, at *4 (W.D.N.Y. Aug. 4, 2015) (citing Veino v.
Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)).
In determining the amount of weight to give to a medical
opinion, the ALJ must consider several factors: the examining
relationship, the treatment relationship (the length, the
frequency of examination, the nature and extent), evidence in
support of the medical opinion, consistency with the record,
specialty in the medical field, and any other relevant factors.
20 C.F.R. § 404.1527.
In the Second Circuit, “all of the
factors cited in the regulations” must be considered to avoid
legal error.
Schaal v. Apfel 134 F.3d 496, 504 (2d Cir. 1998).
Failure to provide “good reasons”10 for not crediting the
opinion of a claimant's treating physician is a ground for
the plaintiff can ambulate effectively for purposes of Listing
1.02 (R. 15). If the source of that opinion is the treating
physician’s MSS (see R. 774, 785), he should note this on remand
if it remains relevant.
10
The plaintiff argues that testimony regarding activities of
daily living such as caring for himself and his mother cannot
provide “good reason” to reject Dr. Giannini’s ambulation
opinions. “[I]t is well-settled that ‘[s]uch activities do not
17
remand. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998).
. . . The requirement of reason-giving exists, in part, to
let claimants understand the disposition of their cases,
even — and perhaps especially — when those dispositions are
unfavorable. A claimant . . . who knows that her physician
has deemed her disabled, might be especially bewildered
when told by an administrative bureaucracy that she is not,
unless some reason for the agency's decision is supplied.
See Jerry L. Mashaw, Due Process in the Administrative
State 175–76 (1985).
Snell v. Apfel, 177 F.3d 128, 133-34 (2d Cir. 1999).
[A]n ALJ cannot reject a treating physician's diagnosis
without first attempting to fill any clear gaps in the
administrative record. See Schaal, 134 F.3d at 505 (“[E]ven
if the clinical findings were inadequate, it [i]s the ALJ's
duty to seek additional information from [the treating
physician] sua sponte.”); see also Hartnett v. Apfel, 21 F.
Supp. 2d 217, 221 (E.D.N.Y. 1998) (“[I]f an ALJ perceives
inconsistencies in a treating physician's reports, the ALJ
bears an affirmative duty to seek out more information from
the treating physician and to develop the administrative
record accordingly”). In fact, where there are deficiencies
in the record, an ALJ is under an affirmative obligation to
develop a claimant's medical history “even when the
claimant is represented by counsel or . . . by a
paralegal.” Perez, 77 F.3d at 47; see also Pratts, 94 F.3d
at 37 (“It is the rule in our circuit that ‘the ALJ, unlike
a judge in a trial, must [] affirmatively develop the
record’ in light of ‘the essentially non-adversarial nature
of a benefits proceeding.’[. . . ].”) (citations omitted)
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
by themselves contradict allegations of disability,’ as people
should not be penalized for enduring the pain of their
disability in order to care for themselves.” Knighton v.
Astrue, 861 F. Supp. 2d 59, 69 (N.D.N.Y. 2012)(remanded because
ALJ prematurely found plaintiff’s contentions not fully credible
due to ability “to perform daily activities like caring for
pets, preparing simple meals, driving a vehicle, and helping
with household chores” and citing Woodford v. Apfel, 93 F. Supp.
2d 521, 529 (S.D.N.Y. 2000) and Balsamo v. Chater, 142 F.3d 75,
81 (2d Cir. 1998) (“We have stated on numerous occasions that ‘a
claimant need not be an invalid to be found disabled’ under the
Social Security Act.”)).
18
In determining when there is “inadequate development of the
record, the issue is whether the missing evidence is
significant.”
Santiago v. Astrue, 2011 WL 4460206, at *2 (D.
Conn. Sept. 27, 2011) (citing Pratts v. Chater, 94 F.3d 34, 37–
38 (2d Cir. 1996)).
“[T]he burden of showing that an error is
harmful normally falls upon the party attacking the agency's
determination.”
(2009).
Shinseki v. Sanders, 129 S. Ct. 1696, 1706
The ALJ “does not have to state on the record every
reason justifying a decision.”
Brault v. Social Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012).
“‘Although required
to develop the record fully and fairly, an ALJ is not required
to discuss all the evidence submitted.’”
Id. (quoting Black v.
Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).
In addition, “[a]n
ALJ’s failure to cite specific evidence does not indicate that
such evidence was not considered.”
Id.
An ALJ must develop the
record, Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996), but
“‘where there are no obvious gaps in the administrative record,
and where the ALJ already possesses a complete medical history,11
A “[c]omplete medical history” is defined as “the records
of [] medical source(s) covering at least the 12 months
preceding the month in which” the plaintiff filed his
application. 20 C.F.R. § 404.1512 (d)(2). “If applicable, . .
. for the 12–month period prior to [] the month . . . last
insured for disability insurance benefits . . .” Id. The
plaintiff filed his claim July 19, 2011. The record includes
Dr. Giannini’s records dated 1/1/06 to 8/18/11 (R. 470-710),
9/6/11 to 3/13/12 (R. 748-69) and two versions of the MSS dated
9/26/13 (R. 773-79, 784-88), covering more than 12 months prior
11
19
the ALJ is under no obligation to seek additional information in
advance of rejecting a benefits claim.’”
Lowry v. Astrue, 474
F. App’x. 801, 804 (2d Cir. 2012) (quoting Rosa v. Callahan, 168
F.3d 72, 79 n.5 (2d Cir. 1999)).
Gaps in the administrative record warrant remand for
further development of the record. Sobolewski v. Apfel, 985
F. Supp. 300, 314 (E.D.N.Y.1997); see Echevarria v.
Secretary of Health & Hum. Servs., 685 F.2d 751, 755–56 (2d
Cir. 1982). . . .
The ALJ must request additional information from a treating
physician
.
.
. when a medical report contains a
conflict or ambiguity that must be resolved, the report is
missing necessary information, or the report does not seem
to be based on medically acceptable clinical and diagnostic
techniques. Id. § 404.1512(e)(1).
When “an ALJ perceives
inconsistencies in a treating physician's report, the ALJ
bears an affirmative duty to seek out more information from
the treating physician and to develop the administrative
record accordingly,” Hartnett, 21 F. Supp. 2d at 221, by
making every reasonable effort to re-contact the treating
source for clarification of the reasoning of the opinion.
Taylor v. Astrue, No. 07–CV–3469, 2008 WL 2437770, at *3
(E.D.N.Y. June 17, 2008)[(holding that the ALJ erred in
failing to re-contact the treating source for clarification
where ALJ gave little weight to the opinion because
objective clinical evidence in the record did not support
the treating physician's conclusion that plaintiff was
“totally disabled.”)]
Toribio v. Astrue, No. 06CV6532(NGG), 2009 WL 2366766, at *8-*10
(E.D.N.Y. July 31, 2009) (holding that the ALJ who rejected the
treating physician's opinion because it was broad, “contrary to
objective medical evidence and treatment notes as a whole”, and
inconsistent with the state agency examiner's findings had an
to both the date the plaintiff filed his application as well as
the date on which he was last insured, i.e., December 11, 2011.
20
affirmative duty to re-contact the treating physician to obtain
clarification of his opinion that plaintiff was “totally
incapacitated”).
In Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998), the court
held that the lack of specific clinical findings in the treating
physician's report did not, by itself, provide “good reason”
justifying the ALJ's failure to credit the physician's opinion.
Id. at 505.
The court stated that even if the clinical findings
were inadequate, it was the ALJ's duty to seek additional
information from the treating physician sua sponte.
Id. (citing
Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
In Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.
1998), the court remanded the case to the trial court to
consider the claimant's contention that in light of Schaal the
ALJ should have acted affirmatively to seek out clarifying
information concerning perceived inconsistencies between a
treating physician's reports.
See id. at 118-19.
The court
reasoned that the doctor might have been able to provide a
medical explanation for the plaintiff’s condition.
Likewise,
the doctor might have been able to offer clinical findings in
support of his conclusion.
The treating physician’s failure to
include this type of support for the findings in his report did
not mean that such support did not exist; he might not have
provided this information in the report because he did not know
21
that the ALJ would consider it critical to the disposition of
the case.
See id.
In this case, Dr. Giannini’s MSS lacked the medical and
clinical support for potentially dispositive opinions (i.e., the
plaintiff could walk zero minutes and could not walk a block at
a reasonable pace on rough or uneven surfaces), which was
recognized by the ALJ12 and the state agency medical
consultants.13
As in Shaal, the lack of specific clinical
findings do not provide, by themselves “good reason” to reject a
treating physician’s opinions.
See Toribio, 2009 WL 2366766, at
*10; Clark, 143 F.3d at 118; Taylor, 2008 WL 2437770, at *3.
Here, as in Toribio, Clark and Taylor, the ALJ had an
affirmative duty to re-contact the treating source sua sponte to
seek more information, get clarification of the reasoning, and
develop the record accordingly.
Failure to include this type of
support for the findings does not mean that such support does
not exist.
See Toribio, 2009 WL 2366766, at *10; Clark, 143
F.3d at 118; Taylor, 2008 WL 2437770, at *3.
Failure to address
this issue is potentially harmful because if Dr. Giannini can
The ALJ noted that he “affords little weight to Dr.
Giannini[‘s] opinions as they are . . . lacking in basis.” (R.
24)
13
State agency medical consultants Dr. Tracy on 1/27/12 with Dr.
Khan’s review upon reconsideration on 6/19/12 concluded under
the heading “Weighing of Opinion Evidence” that “[t]here is no
indication that there is medical or other opinion evidence”.
(R. 87, 125.)
12
22
provide medical and clinical support for her opinion that the
plaintiff cannot walk a block at a reasonable pace on rough or
uneven surfaces and can explain apparent inconsistencies in her
reports and between her reports and the conclusions of the state
agency medical consultants, the plaintiff would satisfy the
requirements of the Listing.
On remand, the ALJ should seek additional information from
Dr. Giannini and clear up any inconsistencies.
At step three,
the ALJ should identify the treating physician opinions
credited, rejected or ignored, including the opinion that the
plaintiff could not walk a block at a reasonable pace on an
uneven surface; specifically address each of the factors
required to be utilized in weighing the relevant opinions;
specifically explain the weight actually given to each; and
provide “good reason” for rejecting opinions, if appropriate.
If the ALJ concludes that the plaintiff fails to meet or equal
the listed impairment and proceeds to step four, he should reevaluate his RFC determination consistent with this ruling.14
At step four, the ALJ identified and generally addressed the
factors required to be utilized in weighing, and gave reasons
for rejecting, the treating physician’s RFC opinions. The ALJ
also substantiated his conclusion as to the inconsistencies with
examples but did not do so with respect to the lack of
evidentiary basis. If the ALJ proceeds to step four after a
rehearing, he should specifically address all factors used to
weigh Dr. Giannini’s RFC opinions and substantiate any
conclusions, including that there is a basis for her RFC
opinions, if appropriate.
14
23
IV.
CONCLUSION
For the reasons set forth above, the plaintiff’s motion for
an order remanding the Commissioner’s decision (Doc. No. 12) for
a rehearing is hereby GRANTED and the Commissioner’s motion to
affirm that decision (Doc. No. 13) is hereby DENIED.
The Clerk shall remand this case to the Commissioner for
rehearing consistent with this ruling and close the case.
It is so ordered this 16th day of February 2017, at
Hartford, Connecticut.
_
/s/AWT __ ______
Alvin W. Thompson
United States District Judge
24
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