Rodriguez v. Colvin

Filing 30

ORDER granting 21 Motion to Reverse the Decision of the Commissioner and denying 22 Motion to Affirm the Decision of the Commissioner. See attached ruling.Signed by Judge Donna F. Martinez on 9/4/2018. (Greenspoon, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SUNIDA RODRIGUEZ,
Plaintiff,
v.
CAROLYN W. COLVIN
ACTING COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION
Defendant.

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CASE NO. 3:15CV1723(DFM)

RULING ON PENDING MOTIONS
Plaintiff, Sunida Rodriguez, seeks judicial review of the
denial of her applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”).1 (R. 9-23.)
I.

Background

An Administrative Law Judge (“ALJ”) held a hearing on May
28, 2014, and determined that plaintiff was not disabled within
the meaning of the Social Security Act. (R. 9-23.)

The ALJ

followed the sequential evaluation process for assessing
disability claims.2

The ALJ found at step one that plaintiff had

1

Plaintiff filed applications for DIB and SSI on June 27, 2012.
Both applications allege a disability onset date of April 15,
2010. (R. 12.) Her applications were denied initially and upon
reconsideration. (R. 12.) At a hearing before the ALJ on May 28,
2014, plaintiff amended her alleged onset date of disability to
September 4, 2011. (R. 12)
2

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

no substantial gainful employment since her alleged onset date.
(R. 14.)

At step two, he found that plaintiff has the following

severe impairments: degenerative disc disease; radiculopathy;
and varicose veins. (R. 15.)

He found at step three that these

impairments do not meet or medically equal a listed impairment.
(R. 31.)

He determined that plaintiff retained the residual

functional capacity (“RFC”) “to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) with the following additional
limitations:

must be allowed to alternate between sitting and

standing at one-hour intervals during the workday, but the
positional change will not render the claimant off task;
occasionally climb ramps or stairs; never climb ladders, ropes,

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 which “meets or equals” an impairment listed
in Appendix 1 of the regulations (the Listings). If so, and it
meets the durational requirements, the Commissioner will
consider him or her 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 in the
national economy which the claimant can perform. 20 C.F.R. §§
404.1520 (a)(4)(i)-(v); 416.920(a)(4)(i)-(v). The claimant
bears the burden of proof on the first four steps, while the
Commissioner bears the burden of proof on this last step.
McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).
Murillo v. Berryhill, 3:16cv403 (WIG), 2018 WL 1665691, at *4
n.2 (D. Conn. Apr. 6, 2018).
2

or scaffolds; and occasionally balance, crawl, stoop, kneel and
crouch.”

(R. 17.)

At step four, he determined that plaintiff

is able to perform her “past relevant work as a packer. This
work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity.” (R.
20.)

In the alternative, at step five, considering plaintiff’s

age, education, work experience, and RFC, the ALJ found that
other jobs exist in significant numbers in the national economy
that plaintiff can perform. (R. 21.)
On October 14, 2015, the Appeals Council denied review of
the ALJ’s unfavorable decision. (R. 1-6.) The Appeals Council
stated that plaintiff had submitted a new Medical Source
Statement from her treating physician, Donna M. McHugh, M.C.
dated July 2, 2014 (R. 797-800), that “did meet the criteria for
consideration” by the

Appeals Council, but found that “this

information does not provide a basis for changing the
Administrative Law Judge’s decision.”

(R. 2.)

Plaintiff

timely appealed.
Currently pending are plaintiff’s motion to reverse the
decision of the Commissioner (Doc. #21) and defendant’s motion
to affirm the decision of the Commissioner (Doc. #22).

For the

following reasons, plaintiff’s motion to reverse the decision of

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the Commissioner (doc. #21) is GRANTED and defendant’s motion to
affirm the decision of the Commissioner (doc. #22) is DENIED.3
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.C. § 405(g), is performing an
appellate function.”
Cir. 1981).

Zambrana v. Califano, 651 F.2d 842 (2d

“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,
[are] conclusive . . . .” 42 U.S.C. § 405(g).

Accordingly,

the district 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 first ascertain whether the Commissioner applied
the correct legal principles in reaching her conclusion, and
then whether the decision is supported by substantial evidence.
Johnson v. Bowen,817 F.2d 983, 985 (2d Cir. 1987).

Therefore,

absent legal error, a decision of the Commissioner cannot be
set aside if it is supported by substantial evidence.

3

This is not a recommended ruling. On December 20, 2017, the
parties consented to the jurisdiction of a magistrate judge.
(Doc. #28 and #29.) See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(b).
4

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). 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).
Substantial evidence is “‘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.

III. Discussion
Plaintiff argues that the Appeals Council and the ALJ
failed to follow the treating physician rule by assigning less
than controlling weight to the opinions of her primary care
physician, Dr. Donna McHugh.4

She also argues that the ALJ

should have given greater weight to the opinions of examining
physician Charles Raftery, M.D. (R. 464-467) and a functional

4

Dr. McHugh prepared two medical source statements regarding the
plaintiff. The ALJ considered the first statement dated, August
19, 2012 (R. 667-669). The ALJ did not have the second
statement before him when making his determination, as it was
dated July 2, 2014, one day prior to the ALJ’s decision, and was
submitted only to the Appeals Council. (R. 797-800.)

5

capacity evaluation by physical therapist Michael Dane (R. 476488) than to the opinions of the non-examining state agency
physicians.

Defendant responds that substantial evidence to

support the ALJ’s decision can be found in the non-examining
state agency physician reports.
A. The Appeals Council decision
With regard to new evidence submitted to the Appeals
Council, the Second Circuit held that:
“[N]ew evidence submitted to the Appeals Council
following the ALJ's decision becomes part of the
administrative record for judicial review when the
Appeals Council denies review of the ALJ's decision.”
Perez v. Chater, 77 F.3d 41, 45 (2d Cir.1996). “The
only limitations stated in [20 C.F.R. §§ 404.970(b)
and 416.1470(b)] are that the evidence must be new and
material and that it must relate to the period on or
before the ALJ's decision.” Id. . . . Once evidence is
added to the record, the Appeals Council must then
consider the entire record, including the new
evidence, and review a case if the “administrative law
judge's action, findings, or conclusion is contrary to
the weight of the evidence currently of record.” 20
C.F.R. § 404.970(b). If the Appeals Council denies
review of a case, the ALJ's decision, and not the
Appeals Council's, is the final agency decision. See
Perez, 77 F.3d at 44. Because the Appeals Council
denied review in this case, our review focuses on the
ALJ's decision. See 42 U.S.C. § 405(g) (“Any
individual, after any final decision of the
Commissioner ..., may obtain a review of such decision
by a civil action....” (emphasis added)) When reviewing
the Commissioner's decision, we bear in mind that the
ultimate determination of whether a person has a
disability within the meaning of the Act belongs to
the Commissioner. See Snell v. Apfel, 177 F.3d 128,
133 (2d Cir.1999). We “review the entire
administrative record, which includes the new
evidence, and determine, as in every case, whether
there is substantial evidence to support the decision
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of the Secretary.” Perez, 77 F.3d at 46; see also 42
U.S.C. § 405(g).
Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015).
Here, the Appeals Council accepted Dr. McHugh’s July 2,
2014 Medical Source Statement and made it part of the record.5 In
her July 2, 2014 Medical Source Statement, Dr. McHugh opined
that plaintiff had prior neck and back surgeries, with displaced
discs and nerve impingement, and that her prognosis was “guarded
– has had surgery yet significant symptoms still persist.”
797.)

(R.

Dr. McHugh indicated that plaintiff could sit for only 5-

10 minutes before needing to get up, could stand for only 5-10
minutes before needing to sit down or walk around, and could sit
and stand/walk for less than 2 hours in an 8 hour working day
(with normal breaks).

She stated that due to plaintiff’s

symptoms of “pain/paresthesias, numbness, back pain, [and]
bilat[eral] leg pain,” plaintiff would need to take unscheduled
breaks multiple times an hour during a working day, and that the
breaks, depending upon the type of work, could last “a few
hours.” (R. 798.)

Dr. McHugh opined further that plaintiff

5

Defendant asserts that the Appeals Council refused to accept
Dr. McHugh’s 2014 Medical Source Statement and argues that it
should not be considered. (Doc. #22-1 at 31-32.) This is
incorrect. The Appeals Council decision refers to the July 2,
2014 Medical Source Statement from Dr. McHugh and expressly
states that “[t]he evidence [plaintiff] submitted did meet the
criteria for consideration pursuant to 20 CFR 405.401(c).” (R.
2, emphasis added.)

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would likely be “off task” 25 percent or more of the time, and
that plaintiff would likely be absent more than 4 days per
month.

She also stated that due to plaintiff’s impairments,

plaintiff likely would not have any “good days,” only “bad days
and worse days.” (R. 800.)
The Appeals Council, however, did not assign any weight to
Dr. McHugh’s July 2, 2014 opinion, nor did it provide any
reasons for failing to do so.

The Appeals Council summarily

denied review, stating only that “this information provided does
not provide a basis for changing the Administrative Law Judge’s
decision.”

(R. 2.) Thus, the court will review this new

information in the context of the ALJ’s decision to determine
whether the decision is supported by substantial evidence in the
record. Lesterhuis v. Colvin, 805 F.3d at 87.

B. The ALJ’s decision
Under the “treating physician rule,” a treating physician’s
opinion is accorded controlling weight when it is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record.”
404.1527(c)(2).6

20 C.F.R. §

The ALJ must “give good reasons” for the weight

6

Although the Social Security Act was amended effective March
27, 2017, the Court reviews the ALJ’s decision under the earlier
regulations because the plaintiff’s application was filed before
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accorded to the treating physician’s opinion.

See Halloran, 362

F.3d at 32; see also 20 C.F.R. § 404.1527(c)(2) (“We will always
give good reasons in our notice of determination or decision for
the weight we give your treating source’s opinion.”); Social
Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *5 (July 2,
1996) (ALJ’s decision “must contain specific reasons for the
weight given to the treating source’s medical opinion, supported
by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.”).
If controlling weight is not given to a treating source’s
opinion, the ALJ must consider certain factors in determining
the weight to be assigned.

Those factors include: (1) the

length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment
relationship; (3) the supportability of the opinion; (4) the
opinion’s consistency with the record; (5) the treating
physician’s specialization, if any; and (6) other factors
brought to the ALJ’s attention.

20 C.F.R. § 404.1527(c)(2); see

also Greek v. Colvin, No. 14-3799, 2015 WL 5515261, at *3 (2d

the new regulations went into effect. Maloney v. Berryhill, No.
16-CV-3899 (ADS), 2018 WL 400772, at *1 (E.D.N.Y. Jan. 12, 2018)
(citing Lowry v. Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir.
2012)).
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Cir. Sep. 21, 2015) (“[T]o override the opinion of the treating
physician, we have held that the ALJ must explicitly consider”
these factors).
The ALJ did not assign controlling weight to Dr. McHugh’s
August 19, 2012 opinion, in which Dr. McHugh opined that
plaintiff had “an obvious problem” and “a serious problem” in
functional ability with regard to activities of daily living,
and stated that her opinion was based upon information provided
by plaintiff’s orthopedist and neurosurgeon.

(R. 668.) The ALJ

explained the opinion was given “less weight” because Dr.
McHugh:
stated that [plaintiff] had an obvious to serious
problem in functioning, but failed to set out specific
information about her function-by-function capacity.
(14F)[R. 667-670.] Dr. McHugh’s poorly supported and
vague conclusion is contradicted by plaintiff’s own
admission that her dysthymia is nonsevere and by Dr.
McHugh’s own findings about appropriate functioning.
(R. 16.)
The ALJ, however, did not have before him Dr. McHugh’s July
2, 2014 Medical Source Statement, which was submitted only to
the Appeals Council, and was dated one day before the ALJ’s
determination. In her new July 2, 2014 opinion, Dr. McHugh noted
that her findings were based on clinical evidence of back
injury, displaced discs and nerve impingement of the lumbar
spine, bilateral leg pain and severe lower back pain. (R. 797-

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800.)7

Dr. McHugh’s July 2, 2014 opinion provides detailed

information about plaintiff’s “function-by-function capacity,”
which the ALJ indicated was missing from the earlier opinion he
considered.

(R. 16.) Dr. McHugh’s July 2, 2014 opinion (R. 797-

800) “reflect[s] judgments about the nature and severity of
[plaintiff’s] impairment(s), including [her] symptoms, diagnosis
and prognosis, what [she] can still do despite impairment(s),
and [her] physical or mental restrictions.”

20 C.F.R. §

1527(a)(2).
A review of the record reveals that Dr. McHugh’s July 2,
2014 opinion is well supported and not inconsistent with other
substantial evidence.8

SSR 96-2p, 1996 WL 374188 (July 2, 1996)

7

In comparison, in her August 19, 2012 opinion, Dr. McHugh
stated that her opinion was based upon clinical information
provided by plaintiff’s orthopedist and neurosurgeon, but
provided information only about mental functioning. (R. 668.)
8

The only opinions inconsistent with Dr. McHugh’s opinions are
those of the state agency psychologists and physicians, none of
whom examined plaintiff. State agency consultants Kelly Rogers,
Ph.D. and Therese Harris, Ph.D., found that plaintiff had only
“mild” limitations in activities of daily living, social
functioning and maintaining concentration, persistence and pace,
and that she had no repeated episodes of decompensation. (R. 80,
128.) A third state agency consultant, Virginia Rittner, M.D.,
reviewed the medical evidence and provided a physical residual
function capacity assessment, finding that plaintiff could
occasionally lift 20 pounds, frequently lift ten pounds and
stand and sit for “about 6 hours in an 8-hour workday.” ((R.
81.) Dr. Rittner opined further that plaintiff could perform
unlimited pushing and/or pulling, consistent with plaintiff’s
ability to lift and carry, that plaintiff could occasionally
climb ramps, stairs, ladders, ropes and scaffolds, and that
plaintiff could occasionally balance, stoop, kneel, crouch and
11

(“If a treating source’s medical opinion is well-supported and
not inconsistent with the other substantial evidence in the case
record, it must be given controlling weight; i.e., it must be
adopted.”).
Additionally, Dr. McHugh’s July 2, 2014 opinion may, “if
given controlling weight, be dispositive of disability, given
the other evidence in the record.” Lesterhuis v. Colvin, 805
F.3d at 88; see 20 C.F.R. § 404.1527(c)(2).

Specifically, Dr.

McHugh stated in her July 2, 2014 opinion, that due to her
symptoms, the plaintiff is likely to be “off task” more than 25
percent of the time. (R. 800.)

The vocational expert,

Courtney Olds, testified at the hearing, in response to a
hypothetical question from the ALJ, that a person who was “off
task” 15-20 percent of the day could not “perform any jobs in
the regional or national economy.”

(R. 66.)

Therefore, Dr.

McHugh’s later opinion, if credited, may suffice on its own to
support a determination of disability.

See Lesterhuis v.

Colvin, 805 F.3d at 87-88 (remanding for reconsideration where
new treating physician opinion submitted only to Appeals Council
contained statement that plaintiff would be absent more than 4

crawl. (R. 81-82.) See Vargas v. Sullivan, 898 F.2d 293, 295 (2d
Cir. 1990)(“The general rule is that the written reports of
medical advisors who have not personally examined the claimant
deserve little weight in the overall evaluation of disability.”)
(internal quotation marks omitted).
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days per month, and vocational expert at hearing had testified
that if an employee like the plaintiff missed 4 days of work per
month, “it would preclude that claimant’s ability to perform any
jobs available in large numbers in the national economy.”).
Therefore, the defendant’s decision is not supported by the
substantial evidence in the record.

The case should be

remanded for a re-weighing of the medical evidence.

In light of

the foregoing, the Court need not reach the merits of
plaintiff’s remaining arguments.

See Johnston v. Colvin, No.

3:13-CV-00073 (JCH), 2014 WL 1304715, at *34 (D. Conn. Mar. 31,
2014) (where case reversed and remanded for re-weighing of
evidence in light of ALJ’s improper application of treating
physician rule, district court need not reach merits of
plaintiff’s remaining arguments).
IV.

Conclusion

For these reasons, plaintiff’s motion to reverse the
decision of the Commissioner (doc. #21) is GRANTED and
defendant’s motion to affirm the decision of the Commissioner
(doc. #22) is DENIED.
This is not a recommended ruling.

The consent of the

parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.

Appeals can be made directly to the

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appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).
SO ORDERED at Hartford, Connecticut this 4th day of
September, 2018.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge

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