Caciopoli v. Colvin

Filing 28

RULING ON CROSS MOTIONS TO REMAND AND AFFIRM DECISION OF THE COMMISSIONER OF SOCIAL SECURITY. For the reasons set forth in the attached ruling, plaintiff's motion to remand the Commissioner's decision (Doc. # 15 ) is GRANTED. Defendant' ;s motion to affirm the Commissioner's decision (Doc. # 21 ) is DENIED. The case is remanded to the Commissioner for further proceedings consistent with this opinion. It is so ordered. Signed by Judge Jeffrey A. Meyer on 8/1/2017. (Levenson, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DANIEL CACIOPOLI,
Plaintiff,
v.
No. 3:16-CV-00949 (JAM)
CAROLYN W. COLVIN, COMMISSIONER
OF THE SOCIAL SECURITY
ADMINISTRATION,
Defendant.

RULING ON CROSS MOTIONS TO REMAND AND AFFIRM DECISION
OF THE COMMISSIONER OF SOCIAL SECURITY
Plaintiff Daniel Caciopoli asserts that he has been disabled and unable to work since
November 1, 2006, due to a number of conditions, including chronic neck, back, and knee pain;
migraines; and depression. He brought this action pursuant to 42 U.S.C. § 405(g), seeking review
of a final decision of defendant Commissioner of Social Security, who denied plaintiff’s claim
for disability benefits and supplemental security income. For the reasons explained below, I will
grant plaintiff’s motion to remand the Commissioner’s decision (Doc. #15), and deny
defendant’s motion to affirm the Commissioner’s decision (Doc. #21).
BACKGROUND
The Court refers to the transcripts provided by the Commissioner. See Doc. #11-1
through Doc. #11-21. Plaintiff filed an application for disability benefits and supplemental
security income on May 16, 2011, alleging disability beginning November 1, 2006. Plaintiff’s
claim was denied initially and again upon reconsideration. Plaintiff then appeared and testified at
a hearing before ALJ Ronald Thomas on October 3, 2013. The ALJ found plaintiff not disabled
in a decision dated January 28, 2014. Doc. #11-4 at 81–99. The Appeals Council remanded

plaintiff’s claim back to the ALJ for a new hearing and decision. Id. at 107–09. The Appeals
Council directed the ALJ to correct a number of deficiencies on remand, including to give further
consideration to the treating and non-treating source opinions, as well as to give further
consideration to plaintiff’s RFC “and provide [a] rationale with specific references to evidence of
record in support of assessed limitations.” Id. at 109.
On April 23, 2015, the same ALJ held a second hearing, at which plaintiff again testified.
The ALJ issued a second decision on July 17, 2015, holding that plaintiff was not disabled within
the meaning of the Social Security Act. Doc. #11-3 at 93–118. After the Appeals Council denied
plaintiff’s request for review of the ALJ’s second decision, plaintiff filed this federal action.
DISCUSSION
The Court may “set aside the Commissioner’s determination that a claimant is not
disabled only if the factual findings are not supported by substantial evidence or if the decision is
based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation
marks and citation omitted); see also 42 U.S.C. § 405(g). Substantial evidence is “more than a
mere scintilla” and “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (per
curiam). Absent a legal error, this Court must uphold the Commissioner’s decision if it is
supported by substantial evidence and even if this Court might have ruled differently had it
considered the matter in the first instance. See Eastman v. Barnhart, 241 F. Supp. 2d 160, 168
(D. Conn. 2003).
To qualify as disabled, a claimant must show that he is unable “to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not less

2

than 12 months,” and “the impairment must be ‘of such severity that [the claimant] 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.’”
Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting 42 U.S.C. §§
423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national economy when it exists in significant
numbers either in the region where [a claimant] live[s] or in several other regions of the
country,” and “when there is a significant number of jobs (in one or more occupations) having
requirements which [a claimant] [is] able to meet with [his] physical or mental abilities and
vocational qualifications.” 20 C.F.R. § 416.966(a)–(b); see also Kennedy v. Astrue, 343 F. App’x
719, 722 (2d Cir. 2009).
To evaluate a claimant’s disability, and to determine whether he qualifies for benefits, the
agency engages in the following five-step process:
First, the Commissioner considers whether the claimant is currently engaged in
substantial gainful activity. Where the claimant is not, the Commissioner next considers
whether the claimant has a “severe impairment” that 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 that is listed [in the so-called “Listings”] in 20 C.F.R. pt. 404, subpt. P, app.
1. If the claimant has a listed impairment, the Commissioner will consider the claimant
disabled without considering vocational factors such as age, education, and work
experience; the Commissioner presumes that a claimant who is afflicted with a listed
impairment is unable to perform substantial gainful activity. 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 burden then shifts to the
Commissioner to determine whether there is other work which the claimant could
perform.
Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122–23 (2d Cir. 2012) (alteration in original)
(citation omitted); see also 20 C.F.R. § 416.920(a)(4)(i)-(v). In applying this framework, if a
claimant can be found disabled or not disabled at a particular step, a decision will be made

3

without proceeding to the next step. See 20 C.F.R. § 416.920(a)(4). The claimant bears the
burden of proving his case at steps one through four; at step five, the burden shifts to the
Commissioner to demonstrate that there is other work that the claimant can perform. See
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
ALJ’s Decision
In his decision of July 17, 2015, the ALJ held that plaintiff was not disabled within the
meaning of the Social Security Act. At step one, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since November 1, 2006. Doc. #11-3 at 96. At step two,
the ALJ found that plaintiff suffered from the following severe impairments: degenerative disc
disease of the cervical and lumbar spine, degenerative joint disease in the bilateral knees,
headaches, affective disorders, and polysubstance dependence disorder. Ibid.
At step three, the ALJ determined that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Ibid. In particular, the ALJ
considered listings 1.02, 1.04, 11.03, 12.04, and 12.09, and concluded that plaintiff’s impairment
did not satisfy the criteria of these listings. Id. at 96–99.
At step four, the ALJ found that plaintiff had “the residual functional capacity to perform
light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b),” but with the following
additional limitations: plaintiff “can occasionally bend, twist, squat, climb, crawl, balance, and
kneel; and has occasional difficulty with concentrating on detailed or complex tasks.” Id. at 99.
In formulating this RFC, the ALJ gave “little weight” to every medical opinion in the record,
including the opinions of treating physicians Dr. Tokuno, Dr. Hyson, and Dr. Wilkens;
consultative examiners Dr. Karlin, Dr. Campagna, and Dr. Mongillo; and the Disability

4

Determination Services (DDS) consultants. Id. at 101–04. The ALJ also found plaintiff’s
testimony about his symptoms to be only partially credible. Specifically, the ALJ found that
while plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms,” his “overall credibility is poor and . . . his degree of pain is less severe than
he alleges.” Id. at 104. The ALJ drew this conclusion based on his findings with respect to
plaintiff’s noncompliance with recommended treatment, plaintiff’s inconsistent statements
throughout the record, and plaintiff’s “secondary motives” for seeking treatment (obtaining
benefits and obtaining narcotic pain medications). Id. at 105–08.
Also at step four, the ALJ concluded that plaintiff could not perform his past relevant
work as an auto body helper or construction laborer. Id. at 108. At step five, after considering
plaintiff’s age, education, work experience, and residual functional capacity (RFC), the ALJ
concluded that there are jobs that exist in significant numbers in the national economy that
plaintiff could perform. This finding relied on the testimony of vocational expert Albert Sabella,
who testified at the administrative hearing that an individual with plaintiff’s RFC and limitations
(as determined by the ALJ) could perform the requirements of representative occupations such as
electronics worker, electrical equipment inspector, and machine molding tender. Id. at 110. The
ALJ ultimately concluded that plaintiff was not disabled within the meaning of the Social
Security Act. Ibid.
The Appeals Council denied plaintiff’s request for review on April 21, 2016. Plaintiff
subsequently filed this federal action in June 2016, asking the Court to reverse the
Commissioner’s decision or remand the case for rehearing. Defendant has cross-moved to affirm
the Commissioner’s decision.

5

Whether the ALJ’s RFC finding was supported by substantial evidence
Plaintiff argues that the ALJ erred in two interrelated respects: (1) that the ALJ failed to
properly weigh the medical opinion evidence, in violation of the treating physician rule; and (2)
that the ALJ failed to provide medical support for his residual functional capacity determination,
given his rejection of the available medical opinion evidence. In essence, these arguments
amount to an assertion that the ALJ’s RFC finding was not supported by substantial evidence. I
agree with plaintiff and will remand the case on these grounds.
i. Treating physician rule
Plaintiff first challenges the ALJ’s decision to grant “little weight” to the opinions of
plaintiff’s treating physicians, Dr. Tokuno, Dr. Hyson, and Dr. Wilkens. The law is clear that the
Commissioner must apply the “treating physician rule” when considering “the nature and
severity of [a claimant’s] impairment(s).” 20 C.F.R. § 416.927(d)(2). According to the treating
physician rule, “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 (internal quotation marks omitted).
Even if a treating physician’s opinion is not given controlling weight, the ALJ must
consider a number of factors to determine the proper weight to assign, including “the [l]ength of
the treatment relationship and the frequency of examination; the [n]ature and extent of the
treatment relationship; the relevant evidence . . ., particularly medical signs and laboratory
findings, supporting the opinion; the consistency of the opinion with the record as a whole; and
whether the physician is a specialist in the area covering the particular medical issues.” Id. at 129
(internal quotation marks and citations omitted) (alterations in original). After considering these

6

factors, the ALJ is required to “comprehensively set forth [his] reasons for the weight assigned to
a treating physician’s opinion. . . . Failure to provide such ‘good reasons’ for not crediting the
opinion of a claimant’s treating physician is a ground for remand.” Id. at 129–30 (internal
quotation marks and citations omitted); see also 20 C.F.R. § 416.927 (“We will always give
good reasons in our notice of determination or decision for the weight we give your treating
source’s medical opinion.”).
The record in this case contained opinions from three treating physicians: plaintiff’s
neurologist Dr. Tokuno, his primary care physician Dr. Hyson, and his psychiatrist Dr. Wilkins.
Dr. Tokuno began treating plaintiff in 2010 and submitted several assessments of plaintiff’s
limitations. In September 2013, Dr. Tokuno diagnosed plaintiff with cervicalgia, neck muscle
spasm, cervicogenic headaches, and lumbar facet arthropathy. Doc. #11-14 at 2. He based these
diagnoses on clinical findings of limited range of motion, tenderness, muscle spasms, trigger
points, and positive straight leg raising. Id. at 2–3. Dr. Tokuno indicated in a questionnaire that
in an eight-hour workday, plaintiff could sit for less than an hour and stand or walk for less than
an hour, that plaintiff would need to get up and move around every thirty minutes, and that
plaintiff could occasionally lift (but not carry) up to ten pounds. He also submitted a narrative
letter in September 2013, in which he described plaintiff’s conditions in more detail and tied
these conditions to his physical exam findings. The letter described plaintiff as “seriously
disabled,” opining that plaintiff could not sit for more than thirty minutes at a time and could not
lift more than five pounds of weight in either arm for more than a few seconds. Id. at 9.
In March 2015, Dr. Tokuno diagnosed plaintiff with chronic low back pain, chronic neck
pain, and headaches. He based these diagnoses on an MRI of the cervical spine, as well as on
clinical findings of limited range of motion, tenderness, muscle spasm, trigger points, and

7

abnormal gait. Again, Dr. Tokuno indicated that in an eight-hour workday, plaintiff could sit for
less than an hour and stand or walk for less than an hour. He also noted that plaintiff was likely
to be absent from work more than three times a month due to his medical issues. Id. at 38–43.
Dr. Hyson, plaintiff’s treating primary care physician, completed a disability impairment
questionnaire in February 2015. She listed plaintiff’s diagnoses as chronic pain and depression.
Like Dr. Tokuno, she opined that in an eight-hour workday, plaintiff could sit for less than an
hour and stand or walk for less than an hour. Id. at 29. She noted that plaintiff would need to get
up every fifteen to twenty minutes, that plaintiff could occasionally lift (but not carry) up to five
pounds, and that plaintiff would be likely to be absent from work more than three times a month.
Id. at 31.
Dr. Wilkins, plaintiff’s treating psychiatrist, submitted a psychiatric impairment
questionnaire in September 2013, about a month after she began seeing plaintiff. She diagnosed
plaintiff with “major depressive disorder, recurrent, severe.” Doc. #11-12 at 111. She also
explained that plaintiff’s “depression and pain have a bidirectional relationship,” where “each
exacerbates the other.” Id. at 117. After discussing plaintiff’s symptoms and limitations
(including a number of “marked” limitations), Dr. Wilkins opined that plaintiff’s “severe
depression and chronic pain . . . render him unable to work in any capacity at this time.” Id. at
118. She also submitted a narrative letter on the same date, in which she described plaintiff’s
symptoms, indicated that he had been prescribed an antidepressant medication, Nortriptyline, and
noted that she planned to see him every two weeks for medication management and supportive
psychotherapy. Id. at 120.
In February 2015, Dr. Wilkins noted that plaintiff’s depression had “worsened
considerably over the past year.” Doc. #11-14 at 36. She also noted that plaintiff had missed

8

several appointments due to lack of transportation, but that she had kept in touch with him by
phone. She concluded that plaintiff “remains severely disabled due to depression.” Ibid.
To the extent that the ALJ offered reasons for his decision to grant little weight to the
foregoing opinions, the ALJ’s stated reasons are unpersuasive and do not constitute “good
reasons” as required by the regulations. For example, the ALJ conclusorily asserted that Dr.
Tokuno’s and Dr. Hyson’s opinions are “not supported by rationale based on specific evidence,”
without addressing the specific clinical and laboratory findings on which the doctors’ opinion are
explicitly based.
The ALJ also justified its rejection of Dr. Tokuno’s and Dr. Hyson’s opinions by
asserting that the ALJ would have expected to see more frequent and aggressive treatment, given
the alleged limitations. But the Second Circuit has cautioned against discounting the opinion of a
treating physician merely because the physician recommended a conservative treatment regimen.
See Burgess, 537 F.3d at 129. Moreover, Dr. Hyson’s questionnaire makes clear that plaintiff’s
treatment has included a wide variety of non-prescription and prescription drugs (including
powerful narcotics), as well as physical therapy, Botox injections, acupuncture, and the use of
braces and inserts. Doc. #11-14 at 28. In the absence of any evidence that the limitations
identified by plaintiff’s doctors call for some other kind of treatment (e.g., surgery), the ALJ’s
comment about treatment does not constitute a “good reason” for rejecting the treating
physicians’ opinions. See, e.g., Hamm v. Colvin, 2017 WL 1322203, at *25 (S.D.N.Y. 2017)
(“the ALJ has pointed to nothing in the record to suggest that Plaintiff was an eligible candidate
for more aggressive medical treatment, such as surgery”); Burgess, 537 F.3d at 129 (“The fact
that a patient takes only over-the-counter medicine to alleviate her pain may . . . help to support
the Commissioner’s conclusion that the claimant is not disabled if that fact is accompanied by

9

other substantial evidence in the record, such as the opinions of other examining physicians and a
negative MRI.”) (emphasis added).
The ALJ rejected Dr. Wilkins’s psychiatric opinion for a similar treatment-related reason,
noting that he would have expected to see inpatient hospitalizations or long-term, intensive
outpatient treatment given the alleged psychiatric/mental limitations. But there is no evidence in
the record to support the ALJ’s view that more aggressive treatment (or inpatient hospitalization)
would be appropriate given plaintiffs’ alleged limitations.
The ALJ also relied on minor, immaterial inconsistencies to reject the treating
physicians’ opinions. Specifically, the ALJ noted that the spinal impairment questionnaire and
summary impairment questionnaire submitted by Dr. Tokuno on the same day (March 13, 2015)
provided conflicting answers as to whether plaintiff had significant limitations in reaching,
handling, or fingering. But while this inconsistency could provide a basis to doubt those specific
limitations, it does not provide grounds for rejecting Dr. Tokuno’s opinions as to plaintiff’s other
abilities and limitations, such as the ability to sit, stand, or walk.
The ALJ also noted that the limitations described by Dr. Hyson are not consistent with
activities performed by plaintiff, “such as riding motorcycles and walking his dog twice a day,
and running errands,” Doc. #11-3 at 102. Those activities were noted in medical records from the
VA Hospital in 2010, and they do not undermine the treating physicians’ later assessments from
2013 and 2015.
The ALJ rejected not only the treating physicians’ opinions, but also the opinions of the
consultative examiners and the DDS consultants, which were largely consistent with the opinions
of the treating physicians. This blanket rejection of all the medical opinions in the record was in
further violation of the treating physician rule. See, e.g., Rolon v. Comm’r of Soc. Sec., 994 F.

10

Supp. 2d 496, 509 (S.D.N.Y. 2014) (“[S]ince the ALJ did not cite any medical opinion to dispute
the treating physician[’s] conclusions . . . regarding the nature and severity of [claimant’s]
impairments, the ALJ did not provide good reasons as required by the treating physician rule.”);
Sappah v. Colvin, 2017 WL 1194235, at *6 (N.D.N.Y. 2017) (“The ALJ assigned ‘limited’ or
‘little’ weight to all of the medical opinions of record, and in so doing, he failed to set forth good
reasons in rejecting the treating physicians’ opinions, as required by the treating physician
rule.”).
The ALJ believed that plaintiff was exaggerating his symptoms and that the source
opinions were similarly exaggerated as a result. But the assessment of plaintiff’s credibility is a
separate inquiry from the assessment of medical opinion evidence under the Social Security
Regulations. See SSR 96-7p. An adverse credibility finding as to a plaintiff is not sufficient
grounds in itself for rejecting the opinions of plaintiff’s treating physicians. Treating physicians
are medical professionals who are in a position to make their own assessments about a plaintiff’s
credibility (in addition to factoring in their objective medical findings); here, all three treating
physicians indicated that they did not think that plaintiff was malingering. See Doc. #11-4 at 7,
27, 32.
ii. Lack of medical support for RFC finding
Plaintiff’s second argument flows from the first. Plaintiff contends that the ALJ failed to
provide medical support for his determination that plaintiff is capable of performing light work. I
agree with plaintiff and conclude that the ALJ’s RFC determination is not supported by
substantial evidence.
Under SSR 96-8p, “the RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory

11

findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the
adjudicator must discuss the individual’s ability to perform sustained work activities in an
ordinary work setting on a regular and continuing basis . . . and describe the maximum amount of
each work-related activity the individual can perform based on the evidence available in the case
record.” SSR 96-8p.
The ALJ’s RFC assessment in this case did not comport with SSR 96-8p. After granting
little weight to all of the available medical source opinions, the ALJ found “that the claimant has
the residual functional capacity to perform light work except he can occasionally bend, twist,
squat, climb, crawl, balance, and kneel; and has occasional difficulty with concentrating on
detailed or complex tasks.” Doc. #11-3 at 108. The ALJ noted that his conclusion was “based on
the foregoing evidence,” ibid., but did not cite to any specific evidence in the record to support
the RFC determination.
“Light work” involves “a good deal of walking or standing,” or “sitting most of the time
with some pushing and pulling of arm or leg controls,” as well as “lifting [up to] 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R.
§ 404.1567 and § 416.967. The ALJ’s determination that plaintiff can perform light work is
unsupported by the medical opinions in the record, and the ALJ did not explain what other
medical (or nonmedical) evidence in the record supported his conclusion as to plaintiff’s RFC,
despite the fact that he was explicitly directed to do so by the Appeals Council on remand. See
Doc. #11-4 at 109. Instead, the ALJ focused on evidence related to plaintiff’s credibility and the
exaggeration of his symptoms, rather than on positive evidence of the limitations found.
In short, the ALJ “improperly substituted his own opinion for that of a physician.”
Staggers v. Colvin, 2015 WL 4751123, at *2 (D. Conn. 2015). Even if the ALJ had been justified

12

in rejecting all of the medical opinion evidence in the record, he would have had a duty to
develop the record by requesting additional medical opinion evidence. Id. at *3 (“in the absence
of any RFC assessments from treating or examining physicians, an ALJ has an affirmative duty
to develop the record by obtaining such assessments”); see also Rosa v. Callahan, 168 F.3d 72,
79 (2d Cir. 1999) (discussing ALJ’s duty to develop the record).
In my view, an ALJ may not simply adjust the RFC upward based on his own assessment
that a claimant is malingering, without specific evidence to support that RFC. Here, the ALJ
noted evidence that plaintiff could ride his motorcycle and walk his dog, but this evidence of
plaintiff’s activities predated the treating physicians’ opinions by several years. Moreover, the
ALJ offered no evidence whatsoever to support his conclusion that plaintiff could lift objects up
to twenty pounds, carry objects of ten pounds, or sit, stand, or walk for more than an hour. See 20
C.F.R. § 404.1567 and § 416.967.
Based on a recent Second Circuit summary order, the Commissioner argues that a
medical source statement or formal medical opinion is not necessarily required where the record
contains sufficient evidence from which an ALJ can assess the claimant’s RFC. See Doc. #21 at
11 (citing Monroe v. Comm’r of Soc. Sec., 676 F. App’x 5, 6–9 (2d Cir. 2017)). But unlike in
Monroe, the ALJ here did not base his RFC determination on the underlying medical records or
“years’ worth of treatment notes,” id. at 9. Even under the cases cited by the Commissioner, the
ALJ’s RFC determination must be supported by substantial evidence and must be “consistent
with the record as a whole.” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). The ALJ in this
case did not cite specific evidence from the record to support his conclusion that plaintiff had the
capacity to perform light work, nor was the ALJ’s RFC finding consistent with the record as a
whole.

13

Accordingly, I will remand this case for reconsideration of plaintiff’s RFC. On remand,
the ALJ should reconsider the treating physicians’ opinions in accordance with the treating
physician rule. The ALJ should also ensure that the RFC determination is supported by specific
medical facts as required by SSR 96-8p.
CONCLUSION
For the reasons explained above, plaintiff’s motion to remand the Commissioner’s
decision (Doc. #15) is GRANTED. Defendant’s motion to affirm the Commissioner’s decision
(Doc. #21) is DENIED. The case is remanded to the Commissioner for further proceedings
consistent with this opinion.
It is so ordered.
Dated at New Haven, Connecticut, this 1st day of August 2017.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

14