Cummings v. Commissioner of Social Security

Filing 21

ORDER granting 16 Motion to Reverse the Decision of the Commissioner; denying 17 Motion to Affirm the Decision of the Commissioner. Signed by Judge Robert A. Richardson on 09/30/2017. (Richardson, Robert)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LORETTA CUMMINGS,
plaintiff,
v.
NANCY A. BERRYHILL,
COMMISSIONER OF SOCIAL
SECURITY,
defendant.

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: CASE NO. 3:16cv01372 (RAR)
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RULING ON THE PLAINTIFF’S MOTION TO REVERSE AND/OR REMAND AND
THE DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE
COMMISSIONER
Loretta Cummings (“plaintiff”), appeals the final decision
of the Commissioner of Social Security (“the Commissioner”)
pursuant to 42 U.S.C. § 405(g).

The Commissioner denied

plaintiff’s application for Social Security Disability Benefits
in a decision dated August 25, 2015.

(R. 19.).

Plaintiff moves

for an order reversing the decision, or in the alternative,
remanding his case for rehearing. (Dkt. #16.)

The Commissioner,

in turn, has moved for an order affirming the decision. (Dkt.
#17.)
For the reasons that follow, plaintiff’s motion to reverse,
or in the alternative, remand is GRANTED.
motion to affirm is DENIED.

The Commissioner’s

PROCEDURAL HISTORY AND BACKGROUND
On July 29, 2013, plaintiff filed an application for
disability benefits, alleging disability beginning February 5,
2010.

The claim was initially denied on December 11, 2013, and

again denied on reconsideration on March 26, 2014.

On May 1,

2014, plaintiff filed a written request for an administrative
hearing.

An oral hearing on the matter was held on June 8, 2015

before Administrative Law Judge (“ALJ”) Matthew Kuperstein.

On

August 28, 2015, ALJ Kuperstein issued a decision which held
that the plaintiff was not disabled within the meaning of the
Social Security Act.

Plaintiff timely requested review by the

Office of Disability Adjudication and Review Appeals Council.
Plaintiff’s request was denied on June 16, 2016.

This appeal

followed.
As instructed by the Court, the parties entered a joint
stipulation of facts on February 22, 2017, which is incorporated
herein by reference.

(Dkt. #16-2.)

STANDARD
Under the Social Security Act, an individual who is
disabled within the meaning of the Act is entitled to benefits.
42 U.S.C. § 423(a)(1).

The Act defines “disability” as the

“inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
2

impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than 12 months.”

42 U.S.C. § 423(d)(1)(A).

The Social Security regulations set forth a five-step
sequential evaluation for adjudicating claims for disability
insurance benefits and supplemental security income:
First, the [Commissioner] considers whether the claimant
is currently engaged in substantial gainful activity.
If he is not, the [Commissioner] next considers whether
the
claimant
has
a
“severe
impairment”
which
significantly limits h[er] 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 which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment,
the [Commissioner] will consider him 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
capacity1 to perform his past work.
Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other
work which the claimant could perform.
Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983); see also
20 C.F.R. § 404.1520.

The burden of proof is on the claimant

through the first four steps, while the Commissioner bears the

1Residual

functional capacity (“RFC”) is defined as the most
a claimant can do in a work setting despite her limitations. 20
C.F.R. § 404.1545(a)(1).
3

burden of proof at the fifth step.

Kohler v. Astrue, 546 F.3d

260, 265 (2d Cir. 2008).
This Court’s review of the Commissioner’s decision is
limited in scope.

Specifically, “findings of the Commissioner

of Social Security as to any fact, if supported by substantial
evidence, [are] conclusive . . . .”

42 U.S.C. § 405(g).

Therefore, this Court may set aside a determination “only if the
factual findings are not supported by ‘substantial evidence’ or
if the decision is based on legal error.”
537 F.3d 117, 127 (2d Cir. 2008).

Burgess v. Astrue,

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.”

Id.; Greek v. Colvin, 802 F.3d 370, 375 (2d Cir.

2015)(citing Richardson v. Perales, 402 U.S. 389, 401 (1971).
Without substituting a court’s judgment for that of the
Commissioner, review of administrative decisions is intended “to
ensure a just and rational result between the government and the
claimant . . . .”
1988).

Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.

To that end, the court seeks to find substantial

evidence to support the Commissioner’s decision through plenary
review of the administrative record.

Ibid.

If substantial

evidence is found, even where there may also be substantial
evidence to support the plaintiff’s contrary position, the
Commissioner’s decision must stand.
4

See Bonet ex rel. T.B. v.

Colvin, 523 F. App’x 58, 59 (2d Cir. 2013); Schauer v.
Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

DISCUSSION
I.

The Treating Physician Rule
Plaintiff argues that the ALJ erred in failing to give

controlling weight to the opinion of plaintiff’s treating
physician, Dr. Rao.

Plaintiff further asserts that the ALJ

erred by substituting his own judgment for that of a medical
doctor and failing to fully develop the record.

(Pl. Br. 4-19.)

Specifically, plaintiff argues that the ALJ did not properly
consider and discuss the statutory factors that must be
considered and discussed when assigning less than controlling
weight to the opinion of a treating physician. (Id. at 7.)
Additionally, in regard to the development of the record, the
plaintiff argues that when the ALJ sees a gap in the record,
there is a duty to fill the gap.

(Id. at 18-19.)

The treating physician rule provides that “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 v. Astrue,

537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R.
5

§ 404.1527(d)(2)); see also Mariani v. Colvin, 567 F. App’x 8,
10 (2d Cir. 2014) (“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”).

“If the ALJ

does not give controlling weight to a treating physician's
opinion, the ALJ must provide ‘good reasons’ for the weight
given to that opinion.” Garcia v. Comm'r of Soc. Sec., 208 F.
Supp. 3d 547, 552 (S.D.N.Y. 2016)(quoting Halloran v. Barnhart,
362 F.3d 28, 32-33 (2d Cir. 2004).

Indeed, “[c]ase law holds

that failure to provide good reasons for not crediting the
opinion of a claimant’s treating physician is a ground for
remand.”

Garcia, 208 F. Supp. 3d. at 552 (internal quotation

and citation omitted).
“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 declining to accept other portions of the same
6

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 what weight to assign a medical opinion, the ALJ
considers the examining relationship, the treatment
relationship, the length of treatment, the nature and extent of
treatment, 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.

Additionally, “it is emphatically a function of a district
judge to determine ‘if there are gaps in the administrative
record’ requiring remand to the Commissioner ‘for further
development of the evidence.’” Borgos-Hansen v. Colvin, 109 F.
Supp. 3d 509, 529 (D. Conn. 2015)(quoting Rosa v. Callahan, 168
F.3d 72, 82-83 (2d Cir. 1999)).
As the parties have already stipulated, Dr. Rao is an
internist working with the Southwest Community Health Center
(“Southwest”).

(Dkt. #16-2, ¶ 45.)

Plaintiff has been a

patient at Southwest since May 2010 and has been treated by Dr.
Rao since at least October, 2010. (Id.)

On May 18, 2015, Dr.

Rao completed a form titled “MEDICAL SOURCE STATEMENT OF ABILITY
TO DO WORK-RELATED ACTIVITIES (PHYSICAL).” (R. 764.)

Dr. Rao

opined that plaintiff could occasionally lift up to 20 lbs.;
7

could not carry any weight; would be limited to sitting,
standing, or walking only one hour each in an eight hour
workday; would be absent from work four or more times per month;
could never reach, handle, finger, feel, push, or pull with her
hands; could never utilize foot controls; and could never climb
ladders, balance, stoop, kneel, crouch or crawl.

(R. 765-67.)

Additionally, Dr. Rao opined that plaintiff would be unable to
work around unprotected heights, moving mechanical parts,
humidity, dust, odors, extreme temperatures, and vibrations. (R.
768.)

Dr. Rao concluded that the plaintiff could shop, travel

independently, use public transit, prepare simple meals, care
for her hygiene, and use paper files.

(R. 769.)

In his decision, the ALJ noted that Dr. Rao, plaintiff’s
primary care provider, had submitted a medical source statement.
(R. 31.)

After confirming that the statement supported a “less

than sedentary residual functional capacity,” the ALJ went on to
assign Dr. Rao’s opinion “little weight.”

(Id.)

In explaining

why he only gave Dr. Rao’s opinion little weight, the ALJ stated
that Dr. Rao’s opinion is “inconsistent with treatment notes
showing only routine visits and benign physical findings.” (R.
31.)

In support of this contention the ALJ cited exhibits 12F,

13F, 18F, and 23F as examples of this inconsistency.

Further,

the ALJ provided that Dr. Rao’s medical source statement was
inconsistent with his own treatment notes, citing to exhibit
8

15F. (Id.)

In further support of his decision to discount Dr.

Rao’s opinion, the ALJ pointed out that Dr. Rao’s opinion was
also, allegedly, inconsistent with the plaintiff’s activities of
daily living and was quite conclusory, being a checklist format
with little explanation. (Id.)
When, as here, the ALJ has highlighted alleged
inconsistencies or gaps in the medical records it is incumbent
upon the ALJ to contact the treating physician and develop the
record.

Rosa v. Callahan,168 F.3d 72, 79 (2d Cir. 1999). It is

clear to the Court that the ALJ is questioning the basis for Dr.
Rao’s opinion by asserting that it is contrary to the other
findings of Dr. Rao and the other medical evidence of record.
When that is the case “the proper course of action is not to
simply reject the physician’s opinion.”

Wade v. Colvin, No.

3:15CV47 (DJS), 2016 WL 1170917, at *9 (D. Conn. March 24,
2016).
As indicated by the stipulated facts, and a review of the
record, Dr. Rao has been treating plaintiff in some capacity
since 2010.

Many of the records from Southwest indicate routine

visits and follow up appointments for medication refills. In May
of 2015, Dr. Rao completed the contested medical source
statement, and contemporaneous treatment records from Southwest
were filed as a separate exhibit. (R. 727-37.)

The ALJ, in

discounting the medical source statement of Dr. Rao, indicates
9

that the contemporaneous treatment records are inconsistent with
the medical sources statement in that they show “problems with
peripheral neuropathy of both feet with some muscle spasm with
reduced range of motion of the lumbar spine, but otherwise
normal.” (R. 31.)

However, the record indicates that Dr. Rao

assessed the patient to have osteoarthritis, pain in the ankle
and foot, obesity, and polyneuropathy. (R. 728.)

The record

continues and notes “severe arthritis of both hands, peripheral
neuropathy and lumbar back pain.”

(R. 731.)

Further still, the

record indicates severe peripheral neuropathy in both feet with
tingling and numbness.

(R. 735.)

In addition to having concerns with the contemporaneous
treatment records, the ALJ also states that the early
examinations show no ongoing lumbar spine problems, that there
is no support for the upper extremity limitations or the foot
controls limitation. (R. 31.)

However, a review of the evidence

shows that some of the records contain indications of intense
pain (See R. 593, wherein plaintiff reports pain at being 10 out
of 10), or reports of swelling in plaintiff’s hands or pain in
her feet. (R. 540, 599.)

Some reports also indicate tenderness

in the lumbar spine area and the ordering of a lumbar MRI in
October, 2013. (R. 635-37.)
The Court does not ignore the fact that Dr. Rao’s medical
source statement indicates severe limitations on plaintiff’s
10

ability, and includes little in the way of explanation or
findings.

Indeed, the ALJ found that the statement was

conclusory, being only a checklist with “very little
explanation.” (R. 31.)

The statement does, however, include two

brief notations indicating that the difficulty stems from back
pain, arthritis in the hands, and severe peripheral neuropathy.
(R. 765, 768.)

Furthermore, even if he only checks a yes or no

box on a form, a treating physician is, by that action,
expressing a medical opinion.

See Thornton v. Colvin, No. 3:13-

CV-1558 CSH, 2016 WL 525994, at *4-*5 (D. Conn. Feb. 9, 2016).
Given that the ALJ perceived conflict and inconsistency
between Dr. Rao’s treatment notes and his medical source
statement, the ALJ had an obligation to further develop the
record and investigate the inconsistency.

Indeed, where there

is a gap in the record, as here where the treatment notes are
somewhat benign and the medical sources statement is severe, the
ALJ has an affirmative duty to develop the record.

See Wade v.

Colvin, No. 3:15CV47 (DJS), 2016 WL 1170917, at *9 (D. Conn.
March 24, 2016).

This duty stems from the “non-adversarial

nature of a benefits hearing[.]”

Id; See also Rosa v. Callahan,

168 F.3d 72, 79 (2d Cir. 1999)(stating “[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

11

treating physician and to develop the administrative record
accordingly.”).
In this instance, it is Dr. Rao who has been treating the
plaintiff for a number of years.

In his role as a treating

physician, Dr. Rao has presumably “examined the patient at
intervals; taken the patient’s oral history; ordered tests,
examined the test results, and discussed them with the patient;
prescribed medication for the patient; conferred with the
patient from time to time; [and] recommended (or performed)
surgery on the patient if required.” Thornton, 2016 WL 525994,
at *4.

It is because of this connection and role that a

treating physician is treated with such high regard.

Id.

The undersigned finds that in this case the ALJ has not
fulfilled its obligation to fill gaps which exist in the record.
The Court has no opinion on the veracity or accuracy of Dr.
Rao’s opinion.

However, “further development of the record is

necessary to place the Court in a position to decide whether the
ALJ's decision denying benefits (if he adheres to it after
remand) ‘is based upon legal error or is not supported by
substantial evidence.’” Borgos-Hansen v. Colvin, 109 F. Supp. 3d
509, 531 (D. Conn. 2015)(quoting Balsamo v. Chater, 142 F.3d 75,
79 (2d Cir. 1998)).

It has been held in this Circuit that,

[w]here there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of
12

no disability creates an unacceptable risk that a
claimant will be deprived of the right to have her
disability determination made according to the correct
legal principles.
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987).

The Court is

aware and acknowledges that the issue in dealing with
development of the record is “whether the missing evidence is
significant.”

Santiago v. Astrue, 2011 WL 4460206, 3:10-cv-937

(CFD) at *2 (D. Conn. Sept. 27, 2011)(citing Pratts v.
Chater, 94 F.3d 34, 37–38 (2d Cir.1996).

The Court finds that

the information which could be gleaned from re-contacting Dr.
Rao would be significant in light of his medical source opinion,
which would be dispositive on the issue of disability if upheld.
In a similar situation, the Second Circuit Court of Appeals
has determined that failure to include findings does not mean
that they do not exist, and a medical provider may be unaware
that an ALJ would consider that information critical.
Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

Clark v.
The

Court finds the words of the Honorable Judge Charles Haight
instructive, in this case:
[t]he ALJ’s conclusion [regarding the supportability of
Dr. Rao’s opinion] may be correct. It may be immune from
challenge. But the Court is not in a position to leave
the ALJ's denial of disability benefits intact until a
gap in the administrative record is filled. That gap is
the result of the ALJ's failure to ask Dr. [Rao] to
explain h[is] opinion in the light of the other medical
evidence. If on remand the inquiry is put to Dr. [Rao],
in words or substance, “Is your opinion that this patient
is disabled supported by the medical records,” []he will
13

presumably either say “yes” and explain why (with
references to the record), or []he will acknowledge that
the records do not support and may even be contrary to
h[is] opinion, coupled with an explanation (if []he is
so minded) of why []he adheres to h[is] opinion
nonetheless.
Borgos-Hansen v. Colvin, 109 F. Supp. 3d 509, 531 (D. Conn.
2015).

Indeed here, Dr. Rao should have been contacted to

explain how, in his role as a treating physician, he finds
plaintiff to suffer from the severe limitation listed in his
medical source opinion.
While not the gravamen of the Court’s concern with the
ALJ’s ruling, the Court is also troubled by the claims of
substantial evidentiary support for the decision to discount Dr.
Rao’s medical source statement.

Specifically, the ALJ points to

inconsistency with the treatment notes from exhibits 12F, 13F,
18F, and 23F.

Exhibits 12F and 23F pertain to treatment at

Cardiology Physicians and St. Vincent’s Medical Center, both
relating to a Left Coronary Angiography performed on June 6,
2014.

(R. 681, 1223-48.)

The records in 12F show a few visits

prior to the procedure, on May 2 and June 9, 2014.

(R. 671-76.)

The records from these visits show patient complaints of chest
discomfort and shortness of breath, but do not offer support or
opposition to the findings of Dr. Rao.

Indeed, the information

in these records was focused on the procedure and was nearly a
year before the medical source statement was completed.

14

Additionally, Exhibit 13F covers four years from May 2011
to May 2015 and contains records from Cardiac Specialists, P.C.
(R. 686.)

Most of the records are follow up examination forms,

containing a single sheet per appointment and very little
legible information. (R. 686-90, 692-94.)

While the records

cover a long span of time, the Court is troubled by the
assertion that these records contain information contrary to the
opinion of Dr. Rao as it does not appear that they contain much
beyond brief notations and physical examination notes along with
medication lists.

Finally, exhibit 18F is virtually useless to

evaluate the plaintiff’s health or disability.
contains a total of six pages (R. 756-61.)

The exhibit

One page is an

improperly submitted document relating to the contact and
insurance information for a patient unrelated to plaintiff. (R.
760.) Two of the other pages are forms that were left blank due
to cancellation or rescheduling.

(R. 757, 761.)

The only

records of substance in exhibit 18F are two visits with Dr.
Feintzig on March 26, 2014 and January 21, 2015.
59.)

(R. 756, 758-

The records indicate that they are follow ups and contain

lists of medications and few findings or assessments.

On one

visit the plaintiff reports that she would like to go back to
the gym and likes to volunteer. (R. 758.)

It is unclear to the

Court how these sparse records (even taken together) show
substantial evidence that contradicts the opinion of Dr. Rao
15

and, unfortunately, the ALJ’s decision failed to specify or
explain the alleged contradiction.

Upon remand, if the ALJ

still asserts that such a contradiction exists, the Court asks
that the ALJ articulate with specificity how it contends that
these records stand in opposition to Dr. Rao’s opinion.
Having determined that the ALJ failed to apply the correct
legal standard the Court does not need to reach the second stage
of review and analyze the ALJ’s findings under the substantial
evidence standard.

“Where there is a reasonable basis for doubt

whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made
according to the correct legal principles.”

Johnson v. Bowen,

817 F.2d 983, 986 (2d Cir. 1987).
On remand, the ALJ should fill the gaps and inconsistencies
in the record by seeking out additional information from Dr. Rao
regarding his medical source statement.
CONCLUSION
Based on the foregoing reasons, plaintiff’s motion for an
order to remand the Commissioner’s decision (Dkt. #16) is
GRANTED and the Commissioner’s motion to affirm that decision
(Dkt. #17) is DENIED.

16

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

appropriate United States court of appeals from this judgment.
See 28 U.S.C. § 636(c)(3).
SO ORDERED this 30th day of September 2017, at Hartford,
Connecticut.
__
/s/
__ ___ ____
Robert A. Richardson
United States Magistrate Judge

17