Twigg v. Commissioner of Social Security

Filing 20

ORDER: For the reasons set forth in the attached document, Plaintiff's Motion for Order Reversing the Decision of the Commissioner (or in the Alternative) Motion for Remand for Another Hearing (Doc. No. 16 ) is hereby GRANTED, and Defendant 9;s Motion for an Order Affirming the Decision of the Commissioner (Doc. No. 19 ) is hereby DENIED. This case is hereby REMANDED to the Commissioner for rehearing. The Clerk shall close this case. Signed by Judge Alvin W. Thompson on 2/13/18. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JASON D. TWIGG,
Plaintiff,

:
:
:
v.
: Civil No. 3:16CV1500 (AWT)
:
COMMISSIONER OF SOCIAL SECURITY, :
Defendant.
:

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:
1. The finding that Plaintiff does not meet the
listing of 1.04 (Spinal Disorder) is contrary to the
evidence in the record.
2. The finding that Plaintiff does not meet the
listing of 1.02 (Major Dysfunction of a Joint) is contrary
to the evidence in the record.

3. Improper weight (greater than appropriate) was
afforded to state agency medical consultants who didn't
examine the Plaintiff.
4. Improper weight (less than appropriate) and/or
consideration
was
afforded
to
Plaintiffs
treating
physicians where there was a longevity of treatment,
testing and surgery performed and multiple examinations of
Plaintiff.
5. The finding that the Plaintiff can engage in
substantial gainful employment at a light duty capacity is
contrary to the evidence in the record.
Plf’s Memo. (Doc. No. 16) at 17-18.

The Commissioner contends

that the ALJ correctly found that the plaintiff did not have an
impairment or combination of impairments that met or medically
equaled a listed impairment, that the ALJ properly evaluated the
evidence of record, and that substantial evidence supported the
ALJ’s finding with respect to a residual functional capacity for
a range of light work.
The court concludes that this case must be remanded because
the ALJ failed to follow the treating physician rule (i.e.
plaintiff’s third and fourth arguments) and, in addition, failed
to develop the record as he was required to in this case, so the
court does not address the plaintiff’s other arguments.
“[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)
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(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
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
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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(c)(1)-(6).

In the Second Circuit, “all of

the factors cited in the regulations” must be considered to
avoid legal error.
1998).

Schaal v. Apfel 134 F.3d 496, 504 (2d Cir.

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
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.
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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)).

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).

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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.
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.
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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.

Here, John A. Pella, M.D., appeared at the hearing and
testified as an impartial medical expert.

The opinion states

that “Dr. Pella did not examine the claimant, but he reviewed
the medical evidence in its entirety (the only doctor to do so),
and his opinion is consistent with that evidence as a whole.”
R.21.

A paragraph follows in which the ALJ purports to

summarize the evidence as a whole but fails to discuss any of
the medical evidence from the plaintiff’s treating physicians
that supports the plaintiff’s position.
concludes:

The opinion then

“The medical evidence supports Dr. Pella’s opinion,

and for this reason, the undersigned gives it significant
weight.”

R.22.

This is the only opinion to which the ALJ gave

significant weight.
The ALJ gave some weight to the opinion of state agency
reviewing physician P.S. Krishnamurthy, M.D., concluding that
“the undersigned gives it just some weight to the extent it is
consistent with the findings by Dr. Pella.”
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R.22.

One of the plaintiff’s treating physicians was David Kloth,
M.D., who treated the plaintiff’s back impairment.

With respect

to Dr. Kloth, the opinion states that “the undersigned gives his
opinions some weight to the extent [they are] consistent with
the findings of Dr. Pella.”

R.22.

As to all of the plaintiff’s

other treating physicians, the ALJ gave their opinions “little
weight”.

R.22.

The medical records from the plaintiff’s treating
physicians cover a period of several years.

They reflect that

there was an interplay between his back and knee issues and his
eventual major depressive disorder.

The medical records also

reflect that at one point his treating physician released him to
light duty work but that the plaintiff’s condition subsequently
worsed.

In choosing to put little weight on the opinions of the

plaintiff’s treating physicians because they are only partially
consistent with the medical evidence or not consistent with the
medical evidence, the ALJ does not specify which portion of the
medical evidence he is relying on.
The ALJ’s discussion of the medical opinions of the
plaintiff’s treating physicians and the basis for those opinions
is cursory.

(This is noteworthy in light of the fact that Dr.

Pella gave entirely conclusory opinions and pointed out nothing
in the way of shortcomings with respect to the medical evidence
from the plaintiff’s treating physicians.
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See R.73-78.)

The

ALJ concluded that Dr. Kloth‘s “opinions are partially
consistent with the medical evidence” without stating whether
the ALJ had taken into account the fact that the plaintiff’s
condition worsened over time.

The ALJ gave “little weight” to

the opinion of Andrew E. Wakefield, M.D., a neurosurgeon who
examined the plaintiff in September 2010.

R.22.

The ALJ

concluded that the medical evidence conflicted with Dr.
Wakefield’s opinion that the plaintiff could not complete a full
day of work.

But the opinion does not reflect with respect to

either Dr. Kloth or Dr. Wakefield that the ALJ considered the
factors he was required to consider to show that there were
“good reasons” for not crediting the opinion of the plaintiff’s
treating physicians.

The same is true with respect to the ALJ’s

rejection of the opinions of Daniel N. Fish, M.D., who treated
the plaintiff’s knee impairments, MacEllis K. Glass, M.D., an
orthopedist who examined the plaintiff in March 2011, Ramon
Batson, M.D., a neurosurgeon who treated the plaintiff, and
David C. Levy, M.D.
Moreover, in several instances the ALJ states that the
medical records from the plaintiff’s treating physicians failed
to address certain areas or have other deficiencies.

With

respect to Dr. Kloth, the opinion states “These opinions do not
specifically address the claimant’s abilities in all areas”.
R.22.

With respect to Dr. Fish, the ALJ states that his opinion
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“is vague and fails to discuss specifically what the claimant
remained able to do despite his impairments.”

R.23.

With

respect to Dr. Glass, Dr. Batson and Dr. Levi, the ALJ writes
that “These opinions are consistent with the medical evidence,
but like that of Dr. Fish, they do not explain what the claimant
remained able to do despite his impairments. . . . These
opinions are vague, and do little more than offer unsupported
conclusions”.

R.23.

(This statement is particularly noteworthy

in light of the conclusory opinions given by Dr. Pella.)

If a

basis for placing little weight on the opinions of these
treating physicians was that their opinions were vague or did
little more than offer unsupported conclusions or failed to
address significant issues, then the ALJ had a duty to fill in
the gaps in the record before rejecting the diagnoses of the
plaintiff’s treating physicians.

After doing so, the ALJ was

then required to provide “good reasons” before declining to
credit the opinions of the plaintiff’s treating physicians,
considering the factors required to be considered under 20
C.F.R. § 404.1527(c)(1)-(6), and choosing to put greater weight
on the opinions of Dr. Pella than on the opinions of the
plaintiff’s treating physicians.
For the reasons set forth above, Plaintiff’s Motion for
Order Reversing the Decision of the Commissioner (or in the
Alternative) Motion for Remand for Another Hearing (Doc. No. 16)
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is hereby GRANTED, and Defendant’s Motion for an Order Affirming
the Decision of the Commissioner (Doc. No. 19) is hereby DENIED.
This case is hereby REMANDED to the Commissioner for rehearing
consistent with this ruling.
The Clerk shall close this case.
It is so ordered.
Dated this 13th day of February 2018, at Hartford,
Connecticut.

__

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

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