Busby v. Colvin

Filing 27

ORDER: The Plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. Nos. 21 , 22 ) is hereby GRANTED and Defendant's Motion for an Order Affirming the Decision of the Commissioner (Doc. No. 25 ) 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 8/18/17. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LEIGH RICHARD BUSBY,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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: Civil No. 3:16CV664 (AWT)
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ORDER REMANDING CASE
For the reasons set forth below, the decision of the
Commissioner is reversed and this case is remanded for
additional proceedings consistent with this order.
The court’s function when reviewing a denial of disability
benefits is first to ascertain whether the Commissioner applied
the correct legal principles in reaching a conclusion, and then
whether the decision is supported by substantial evidence.
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).

See

Absent

legal error, this court may not set aside the decision of the
Commissioner if it is supported by substantial evidence.

See

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
The plaintiff argues that remand is required in this case
because first, the ALJ failed to follow the treating physician
rule; second, the ALJ failed to develop the record; and third,
the ALJ’s vocational findings are unsupported.

The court agrees

that this case must be remanded because the ALJ failed to follow
the treating physician rule and the ALJ failed to develop the
record, so it does not address the plaintiff’s third argument.
“[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.”

Schrack v.

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
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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” for not crediting the opinion
of a claimant's treating physician is a ground for remand.
Snell v. Apfel, 177 F.3d 128, 133-34 (2d Cir. 1999)(citing
Schaal, 134 F.3d at 505).
In Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999), the
court explained the ALJ’s obligation to fill gaps in the
administrative record prior to rejecting a treating physician’s
diagnosis:
[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
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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, 168 F.3d at 79.
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.’”
Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).

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Id. (quoting Black v.
In addition, “[a]n

ALJ’s failure to cite specific evidence does not indicate that
such evidence was not considered.”

Id.

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
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.
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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
that the ALJ would consider it critical to the disposition of
the case.

See id.

With respect to the ALJ’s failure to follow the treating
physician rule, the court agrees with the plaintiff’s statement
that the deference to be given to the treating physician’s
opinions is absent from the ALJ’s decision.

See Mem. in Supp.

of Mot. to Reverse the Decision of Commissioner at 5
6

(“Plaintiff’s Memorandum”).

Moreover, the court agrees with the

plaintiff’s critique of the ALJ’s decision set forth at Pages 6
to 17 of the Plaintiff’s Memorandum.

In reviewing the ALJ’s

decision, the court was particularly struck by the fact that (1)
the ALJ seems to have evaluated the medical evidence himself, as
opposed to evaluating and assigning weight to the treating
source opinions; (2) the ALJ concluded that he could give no
weight to Dr. Bejarano’s opinion; (3) the ALJ purports to give
little weight to Dr. Andres’ opinion but in fact appears to have
given none; (4) when discussing the January 2014 report
(“described no antalgic gait, paraspinal tenderness or decreased
forward flexion”) the ALJ chose to ignore the MRI examination
that occurred shortly thereafter and the fact that Dr. Andres’
physical medical source statement was given in June 2014; and
(5) instead of acknowledging that the global assessment
functioning scores were consistent with the opinions of the
treating physicians, the ALJ simply dismissed them because such
scores do not necessarily mean a person is unable to work.
The ALJ’s failure to develop the record is particularly
noteworthy here.

The ALJ places great weight on the January

2013 assessment from Jen Kempf, LMFT and Daisy Jacob, MD, but
places no weight on the portion of that document that gives
every appearance of also being from Kempf and Jacob.

The ALJ

knew or should have known from the document that it was
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incomplete but took no steps to obtain the complete document.
This was a very significant omission because the document on
which the ALJ placed no weight explicitly stated that the
plaintiff had a condition or combination of conditions that
prevented him from working, while the document on which the ALJ
placed great weight did not explicitly address this question.
Rather the ALJ provided his own interpretation of the responses
to that questionnaire.

It is difficult to see how the ALJ could

have believed he was acting consistently with his affirmative
duty to fill any clear gaps in the administrative record prior
to rejecting a treating physician’s diagnosis.
It is also noteworthy that the ALJ gave no weight to Dr.
Bejarano’s opinions because, among other reasons, the doctor
“merely put checkmarks to primarily subjective symptoms” (R.
138), but had the ALJ sought additional information because he
felt the clinical findings were inadequate, such information
would have been provided, as evidenced by Dr. Bejarano’s
November 4, 2014 report.

See R. 116-120.

For the reasons set forth above, Plaintiff’s Motion to
Reverse the Decision of the Commissioner (Doc. Nos. 21, 22) is
hereby GRANTED, and Defendant’s Motion for an Order Affirming
the Decision of the Commissioner (Doc. No. 25) is hereby DENIED.
This case is hereby REMANDED to the Commissioner for rehearing
consistent with this ruling.
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The Clerk shall close this case.
It is so ordered.
Dated this 18th day of August 2017, at Hartford,
Connecticut.

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/s/AWT __
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Alvin W. Thompson
United States District Judge

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