Burgos v. Colvin

Filing 18

ORDER: For the reasons set forth in the attached order, Plaintiff's Motion for Order Reversing the Decision of the Commissioner or in the Alternative Motion for Remand for a Hearing (Doc. No. 14 ) is hereby GRANTED, and Defendant's Motion for an Order Affirming the Decision of the Commissioner (Doc. No. 15 ) 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 2/28/18. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JESSICA BURGOS,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

:
:
:
: Civil No. 3:16CV1505 (AWT)
:
:
:
:
:

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 plaintiff argues, in substance, (1) that the
Administrative Law Judge (“ALJ”) failed to follow the treating
physician rule because he did not make weight assessments with
respect to the opinions of her treating psychiatrist Leela
Panoor, M.D. (“Panoor”), her treating therapist Erica Wilcox,
MS, CRC, LPC (“Wilcox”), and her examining therapist Alison
Rutherford, MSWI (“Rutherford”), and the opinions of each were
entitled to some, if not significant or controlling weight; (2)
that the ALJ’s analysis with respect to the RFC determination
did not account for the opinions of the plaintiff’s treating
physicians and the plaintiff’s statements; and (3) that the ALJ

erred in concluding that the defendant had met its burden of
proof at Step Five of the Sequential Evaluation Process.
The defendant argues that the ALJ properly weighed the
medical opinions of record and that substantial evidence
supports the ALJ’s Step Five Determination.
The court concludes that this case must be remanded because
the ALJ failed to follow the treating physician rule as to
Panoor and Wilcox.

The court does not address the remaining

arguments because application of the treating physician rule at
a rehearing may moot those issues.
“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.§ 405(g), is performing an
appellate function.”
(2d Cir. 1981).

Zambrana v. Califano, 651 F.2d 842, 844

The court may not make a de novo determination

of whether a plaintiff is disabled in reviewing a denial of
disability benefits.

See Wagner v. Sec’y of Health & Human

Servs., 906 F.2d 856, 860 (2d Cir. 1990).

Rather, the court’s

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

See Johnson

The Second Circuit

has defined substantial evidence as “‘such relevant evidence as
a reasonable mind might accept as adequate to support a
2

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 mere scintilla or
touch of proof here and there in the record.”

Williams, 859

F.2d at 258.
“[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)).

This is “particularly

true [i]n the context of a psychiatric disability diagnosis[,]
such as in this case.

In such a case, it is improper to rely on

the opinion of a non-treating, non-examining doctor because the
inherent subjectivity of a psychiatric diagnosis requires the
physician rendering the diagnosis to personally observe the
patient.”

Griffin v. Colvin, No. 3:15CV105 (JGM), 2016 WL

912164, at *16 (D. Conn. Mar. 7, 2016) (internal quotations and
citation omitted); Santiago v. Barnhart, 441 F. Supp. 2d 620, 629
(S.D.N.Y. July 27, 2006) (“The Treating Physician Rule recognizes
that a physician who has a long history with a patient is better
positioned to evaluate the patient’s disability than a doctor who
observes the patient once for the purposes of a disability
3

hearing.

The rule is even more relevant in the context of mental

disabilities, which by their nature are best diagnosed over
time.”).
“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)).
“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 v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)).

The

“good reasons” must be stated explicitly and set forth
comprehensively.

See Burgin v Asture, 348 F. App’x 646, 649 (2d

Cir 2009) (“The ALJ’s consideration must be explicit in the
record.”); Tavarez v. Barnhart, 124 F. App’x 48, 49 (2d Cir.
2005) (“We do not hesitate to remand when the Commissioner . . .
do[es] not comprehensively set forth reasons for the weight
assigned . . . .”) (internal quotation marks and citation
omitted); Reyes v. Barnhart, 226 F. Supp. 2d 523, 529 (E.D.N.Y.
2002)(“rigorous and detailed” analysis required).

4

In determining the amount of weight to give to a medical
opinion, the ALJ must consider all of the § 404.1527(c) 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.

See Schaal, 134 F.3d at 504 (“all of the factors cited

in the regulations” must be considered to avoid legal error).
In Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999), the court
explained the ALJ’s duty in a case where there are deficiencies
in the record:
[W]here 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).
Id. at 79.

See also Clark v. Comm'r of Soc. Sec., 143 F.3d 115,

118-19 (2d Cir. 1998) (holding that the ALJ should have sought
clarifying information sua sponte because the doctor might have
been able to provide a supporting medical explanation and
clinical findings, that failure to include support did not mean
that support did not exist, and that the doctor might have
included it had he known that the ALJ would consider it
dispositive).
5

Gaps in the administrative record warrant remand . . . .
Sobolewski v. Apfel, 985 F. Supp. 300, 314 (E.D.N.Y.1997);
see Echevarria v. Secretary of Health & Hum. Servs., 685
F.2d 751, 755–56 (2d Cir. 1982). . . .
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).
Toribio v. Astrue, No. 06CV6532(NGG), 2009 WL 2366766, at *8-*10
(E.D.N.Y. July 31, 2009).
In determining whether there has been “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.”

Shinseki v. Sanders, 556 U.S. 396, 409

(2009).
Here, the plaintiff has made the requisite showing.

The

pertinent opinions were authored by Wilcox and co-signed by

6

Panoor1, and they involve psychiatric diagnoses.
and 7F (R. at 357, 397).

See Exhibits 3F

For purposes of the treating physician

rule, Panoor and Wilcox are treating sources whose opinions are
entitled to controlling weight.

See 20 C.F.R. § 404.1502

(identifying a physician who provides medical treatment or
evaluates and has an ongoing relationship with the plaintiff as
a “treating source”); Griffin, 2016 WL 912164, at *16 (finding
that a therapist’s opinion, when cosigned by a supervising
psychiatrist, is entitled to controlling weight when there is no
evidence that the cosigner had a different opinion, as is the
case here).
The ALJ gave “great weight” (R. at 25) to non-treating,
non-examining state agency psychological consultants Susan Uber,
Ph.D. and Warren Leib Ph.D..

The ALJ stated that “there are no

opinions from a treating or examining physician providing
greater limitations tha[n] those found” and that “the record
does not contain any opinion from treating or examining
physicians indicating that the claimant is disabled or even has
1

Pursuant to SSR 06-03p, when the ALJ considers 404.1527(c)(6) “other
factors”, the ALJ must consider “other sources” opinions. Rutherford is
considered an “other source”. 20 C.F.R. § 404.1513(d)(1) (therapists defined
as “other sources”). According to SSR 06-03p, the regulations do not
explicitly address how to consider “other sources” opinions. However, SSR
06-03p notes that the 404.1527(c) factors can be applied and that the ALJ
generally should explain the weight given to ensure a reviewer can follow the
reasoning. The court does not address Rutherford’s opinion because the case
is being remanded on other grounds and the ALJ can reanalyze Rutherford’s
opinion on rehearing if necessary. The Federal Register Notice Vol. 82, No.
57, page 15263 rescinded SSR 06-03p effective March 27, 2017. For purposes
of this ruling, SSR 06-03p applies because it was not rescinded until after
March 20, 2015, the date of the ALJ’s decision.

7

limitations greater than those determined in this decision.”
at 25.

These perfunctory statements do not suffice.

R.

See Eakin

v. Astrue, 432 F. App’x 607, 611 (7th Cir. 2011) (holding
“[t]erse statement that the record ‘does not provide a basis for
finding limitations greater than those determined in this
decision’” legally insufficient because it is “too perfunctory
to permit meaningful appellate review”).

There is no

explanation as to the weight actually given to the opinions of
the plaintiff’s treating physicians, though it appears that
little to no weight was given to them.

Also, the ALJ failed to

explicitly analyze all of the required factors.

The ALJ,

therefore, failed to provide “good reason” for giving the
opinions of Panoor and Wilcox opinions less than controlling
weight.
In addition, the ALJ stated that Panoor and Wilcox were
“unable” to “comment” or “assess” social interaction and task
performance.

R. at 25; See 3F, R. at 359; 7F, R. at 399. Yet

the ALJ never asked them for an explanation.

Given their

familiarity with the patient’s history and as treating sources,
they may well have provided a well-founded opinion if asked.
From the medical source statements, the court cannot determine
whether the inability to report or assess stemmed from the
patient or the evaluators, and whether it was simply a
consequence of what was covered and not covered during a visit.
8

It is possible that all three providers had an opinion regarding
whether and how the plaintiff’s limitations might affect her
ability to work for a sustained period, 8 hours a day, 5 days a
week.
Thus, the court finds that the plaintiff has met her burden
of demonstrating that the missing information is significant.
If, in his analysis with respect to the RFC determination, the
ALJ had accounted for the opinions of Panoor, Wilson and
Rutherford (which the plaintiff argues translated in vocational
terms to being off-task up to 33 % of the work day in the case
of Wilcox’s opinion) and the claimant’s statements about her
hand dexterity and hand and body shaking, doing so may have led
the vocational expert to a “no work” conclusion.

In such an

event, the ALJ might have found the plaintiff disabled.
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 a Hearing (Doc. No. 14) is
hereby GRANTED, and Defendant’s Motion for an Order Affirming
the Decision of the Commissioner (Doc. No. 15) is hereby DENIED.
This case is hereby REMANDED to the Commissioner for rehearing
consistent with this order.
The Clerk’s Office is instructed that, if any party appeals
to this court the decision made after this remand, any
subsequent social security appeal is to be assigned to the
9

District Judge or Magistrate Judge who issued the Ruling that
remanded the case.
The Clerk shall close this case.
It is so ordered.
Dated this 28th day of February 2018, at Hartford,
Connecticut.

__

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

10