Edwards v. Berryhill
Filing
22
RULING granting 20 Motion to Reverse the Decision of the Commissioner; denying 21 Motion to Affirm the Decision of the Commissioner. Edwardss Motion to Reverse the Decision of the Commissioner (Doc. No. 20 ) is hereby GRANTED and the Commissi oners Motion to Affirm the Decision of the Commissioner (Doc. No. 21 ) is hereby DENIED. The ALJs October 2016 Decision is vacated with respect to the time period prior to November 1, 2012, and the case is remanded to the Social Security Administrat ion for further proceedings consistent with this Ruling. The Clerks Office is instructed that, if anyparty appeals to this court the decision made after this remand, any subsequent social security appeal is to be assigned to the District Judge who issued the Ruling that remanded the case. Signed by Judge Janet C. Hall on 1/31/2018. (Lewis, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BONNIE R. EDWARDS,
Plaintiff,
CIVIL ACTION NO.
3:17-CV-298 (JCH)
v.
NANCY E. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY, U.S.A.,
Defendant.
JANUARY 31, 2018
RULING RE: CROSS MOTIONS TO REVERSE AND AFFIRM DECISION OF THE
COMMISSIONER (DOC. NOS. 20 & 21)
I.
INTRODUCTION
Plaintiff Bonnie Rae Edwards (“Edwards”) brings this action under title 42,
section 405(g) of the United States Code, appealing from the final determination of the
Commissioner of Social Security (“the Commissioner”), who denied her application for
Title II disability insurance benefits in whole and her application for Title XVI
supplemental security income in part, based on a finding that Edwards became disabled
on November 1, 2012. Motion to Reverse the Decision of the Commissioner (“Pl.’s
Mot.”) (Doc. No. 20). The Commissioner cross-moves for an order affirming that
Decision. Defendant’s Motion for Judgment on the Pleadings (“Def.’s Mot.”) (Doc. No.
21).
For the reasons set forth below, the Motion to Reverse the Decision of the
Commissioner (Doc. No. 20) is granted, and the Motion for Judgment on the Pleadings
(Doc. No. 21) is denied. The ALJ’s October 2016 Decision is vacated with respect to
the period before November 1, 2012, and the case is remanded to the ALJ for
proceedings consistent with this Ruling.
1
II.
RELEVANT FACTS
The court assumes the parties’ familiarity with the evidence of Record, and it will
therefore only briefly describe the facts relevant to this opinion.
Bonnie Rae Edwards was born in April 1958. See, e.g., Certified Transcript of
Record (“R.”) (Doc. No. 16) at 2190. During her childhood, many of her family
members, including her stepfather and her grandmother, were alcoholics. See id. at
1251, 1264. At age eight, friends of her older brother sexually abused her. See id. at
1251. She has been married twice (and divorced twice) and was physically abused by
both her ex-husbands, as well as other men with whom she has been in relationships.
See id. at 1251–52, 2255–56. These experiences led to the development of posttraumatic stress disorder (“PTSD”). See, e.g., id. at 484. Edwards had four children,
one of whom was murdered in June 2012. See id. at 2648–49.
Edwards has a long history of substance abuse, including addictions to alcohol,
heroin, and cocaine, as well as the abuse of prescription opiates and crack cocaine.
See, e.g., id. at 2206. Although she has had periods of sobriety, she also had frequent
relapses through approximately 2009. See id. For at least some of the time in which
she was actively abusing substances, Edwards was homeless, staying variously with
family, in shelters, or on the street. Id. at 1250.
From the last nineties through 2002, Edwards was employed in various
administrative roles at Yale University. See id. at 2244. In 2002, Edwards was
terminated as a result of excessive absences stemming from her drug use. Id.
Although she has briefly obtained work since then, she has not been able to hold a
position long enough to constitute “substantial work” since her employment with Yale.
See id. at 2203.
2
Her medical history indicates that she has been diagnosed with depression,
bipolar disorder, PTSD, anxiety disorder, borderline personality disorder, heroin
dependence, and cocaine dependence. See, e.g., id. at 436, 450, 1264. She has also
been diagnosed with asthma; carpal tunnel syndrome; degenerative disc disease;
sciatica; gastrointestinal reflux disease; varicose veins; hepatitis A, B, and C; and
genital herpes. See, e.g., id. at 1264–66, 1691, 1841, 2206–10 (summarizing medical
history).
III.
PROCEDURAL HISTORY
To say that this case has a lengthy procedural history would be an
understatement. In total, the case has been before two different ALJs, who have held a
total of six hearings and issued four decisions, and has reached the District of
Connecticut on two occasions prior to this case. The following is a summary of the
relevant procedural history.
Edwards filed a Title II application for a period of disability and disability
insurance benefits on April 17, 2006. See R. at 224–28. She also filed a Title XVI
application for supplemental security income on April 17, 2006. See id. at 229–33.
Both applications alleged that her disability onset date was January 1, 2003. The Social
Security Administration denied her claims initially on August 3, 2006, and upon
reconsideration denied them again on January 12, 2007. See id. at 139–41, 148–50.
Edwards then requested a hearing, which took place before Administrative Law Judge
(“ALJ”) Ronald Thomas on December 17, 2007. Id. at 1315–45. Following that hearing,
ALJ Thomas issued a partially favorable Decision on January 25, 2008, finding Edwards
disabled as of July 1, 2007, but not before that date. Id. at 113–32. ALJ Thomas found
that Edwards was unable to work between January 1, 2003, and July 1, 2007, but that
3
she was not eligible for disability benefits during this period because “she failed to follow
treatment prescribed by a treating source that can be expected to restore her ability to
work.” Id. at 129.
The Social Security Appeals Commission vacated and remanded ALJ Thomas’s
January 2008 Decision on January 15, 2009. Id. at 133–38. The Appeals Commission
observed that ALJ Thomas had reached conflicting conclusions in his Decision, namely
that Edwards would have been able to work prior to July 1, 2007, had she not been
abusing substances, while at the same time concluding that Edwards became eligible
for benefits on July 1, 2007, because of her sobriety. Id. at 137. The Appeals
Commission noted, too, that “[i]rrespective of this apparent contradiction, the Appeals
Council is of the opinion that the real issue in this case is whether or not drug addiction
is a contributing factor material to the issue of disability, and not whether the claimant
failed to follow prescribed treatment.” Id. The Appeals Council ordered, among other
things, that ALJ Thomas obtain testimony from a medical expert. Id.
On June 24, 2009, ALJ Thomas held another hearing. Id. at 60–107. During this
hearing, medical expert Dr. Billings Fuess, PhD,1 testified by phone, over the objection
of counsel for Edwards, Attorney Ivan Katz. See id. at 63–64. Following this hearing,
ALJ Thomas issued a Decision on November 23, 2009. Id. at 7–37. In his 2009
Decision, ALJ Thomas concluded that Edwards met the listing 12.09, finding that she
had behavioral changes associated with the regular use of substances, marked
limitations in activities of daily living (noting specifically that she had experienced
1
Dr. Fuess’s name is alternately spelled Dr. Fuess, Dr. Fuse, and Dr. Fuchs in the Record. It is
clear from context that this is the same person, and the court refers to him throughout this Ruling as Dr.
Fuess based on his resume. See R. at 2916–18 (resume of Billings S. Fuess).
4
homelessness), marked difficulties in social functioning (including engaging in
destructive relationships and committing crimes resulting in incarceration), and marked
difficulties in concentration, persistence, or pace. Id. at 14. ALJ Thomas further
concluded that, “[i]f the claimant stopped the substance use, the remaining limitations
would not meet or medically equal the criteria of listings 12.04 or 12.06. Id. He found,
specifically, that if she stopped abusing substances Edwards would have only mild
restrictions in activities of daily living; moderate difficulties with social functioning;
moderate difficulties with concentration, persistence, or pace; and no episodes of
decompensation. Id. ALJ Thomas concluded that “the claimant would not be disabled if
she stopped the substance use” and therefore “the claimant has not been disabled
within the meaning of the Social Security Act at any time from the alleged onset date
through the date of this decision.” Id. at 26.
Edwards appealed Thomas’s 2009 Decision, and the Appeals Council denied
review, rendering ALJ Thomas’s 2009 Decision a final order appealable to the District
Court. Id. at 1–4. On appeal, Judge Mark Kravitz of the District of Connecticut
concluded that ALJ Thomas had committed legal error when he took the telephonic
testimony of Dr. Fuess without notice to the claimant and over the objection of Attorney
Katz.2 See Edwards v. Astrue, No. 3:10-cv-1017 (MRK), 2011 WL 3490024 (D. Conn.
Aug. 10, 2011). He therefore vacated ALJ Thomas’s 2009 Decision and remanded the
case to the Social Security Administration for proceedings consistent with his Ruling.
2
Although Edwards raised additional challenges to ALJ Thomas’s conclusions in his 2009
Decision, Judge Kravitz declined to reach these arguments. See Edwards, 2011 WL 3490024, at *11
(“As remand is warranted on the basis that the medical expert testified telephonically, there is no need to
reach the merits of Ms. Edwards’s other claims.”).
5
Id. at *11.
On remand, the case was assigned to ALJ Deirdre Horton. ALJ Horton held an
initial hearing in the matter on April 29, 2013, at which Edwards did not appear but
counsel for Edwards, Attorney Katz, was present. See R. at 1346–73. During the April
2013 hearing, ALJ Horton took the testimony of medical expert James Claiborn, Ph.D.,3
by live video conference. See id. at 1348. A supplemental hearing was held on
September 4, 2013, at which Edwards was present and testified. Id. at 1315–45.
Following these hearings, ALJ Horton issued a Decision on February 19, 2014. Id. at
1267–94. In that Decision, ALJ Horton denied benefits, stating “the claimant is under a
disability, but . . . a substance use disorders [sic] is a contributing factor material to the
determination of disability” and consequently “the claimant has not been disabled under
the Social Security Act any time from the alleged onset date through the date of this
decision.” Id. at 1271. ALJ Horton further found that “[t]he severity of the claimant’s
mental impairments, considered singly and in combination, did not meet or medically
equal the criteria of listings 12.04, 12.06, 12.08, or 12.09.” Id. at 1274. She found that
Edwards had marked restrictions in activities of daily living (noting that Edwards had lost
her long-term job, experienced homelessness, that her driver’s license was suspended
and then expired, and that she lost custody of her daughter). Id. She also found that
Edwards had moderate difficulties in social functioning (noting her tumultuous
relationships and run-ins with the law), moderate difficulties in concentration, pace, or
persistence (leading to the loss of her long-term job), and had “one to two” episodes of
3
Dr. Claiborn’s name is variously spelled “Dr. Claiborn,” “Dr. Clayborne,” and “Dr. Claiborne”
throughout the Record. The court refers to him as “Dr. Claiborn” in this Ruling, based on the spelling on
his resume. See R. at 1553–57 (resume of Dr. James M. Claiborn, Ph.D.).
6
decompensation (in the form of inpatient hospitalizations). Id. Because she found that
Edwards had “marked” limitations in only one category, she disagreed with Dr.
Claiborn’s opinion that Edwards met or medically equaled listing 12.09 while she was
abusing substances. Id. at 1275.4
Once again, Edwards appealed the Decision to the District Court.5 On November
20, 2014, the Commissioner stipulated to a remand to develop the record further. That
stipulation provided that the ALJ would develop the record as follows:
1. Update the medical evidence of record and attempt to
obtain all of the treatment notes from Richard H. Feuer, M.D.,
and the records from Community Health Center with the help
of Plaintiff’s representative;
2. Determine whether Plaintiff is under a disability taking into
consideration all of the impairments, including the
polysubstance use, following the sequential evaluation
process outlined in 20 C.F.R. §§ 404.1520 and 416.920; and,
if Plaintiff is found disabled, determine whether the
polysubstance use is material to the determination of disability
(20 C.F.R. §§ 404.1535 and 416.935 and Social Security
Ruling 13-2p);
3. Further evaluate Plaintiff’s subjective complaints pursuant
to 20 C.F.R. §§ 404.1529 and 416.929 and Social Security
Ruling 96-7p;
4. Obtain supplemental evidence from a medical expert to
assist in determining the nature and severity of Plaintiff’s
mental impairments, with and without the polysubstance use
pursuant to 20 C.F.R. §§ 404.1527(e) and 416.927(e) and
Social Security Ruling 96-6p;
4
The court notes that there appears to be a contradiction in ALJ Horton’s February 2014
Decision, in that she both concludes that Edwards would not have been disabled absent her substance
abuse, and that she was not disabled at any time. This issue was not addressed on the merits by the
district court because the appeal resolved by stipulated remand, but the second paragraph of the
Stipulation, reproduced in this Ruling, appears to be designed to address this issue.
5
Presumably this appeal followed a denial of review by the Social Security Appeals Council, but
upon review of the Record, the court found no such denial for ALJ Horton’s 2014 Decision.
7
5. Further evaluate whether Plaintiff’s past jobs meet the
requirements of past relevant work (i.e., performed within the
past fifteen years at substantial gainful activity level and long
enough to learn how to perform the job) and, if so, with the
assistance of a vocational expert, determine whether she can
perform the physical and mental demands of this work, and;
6. If the case proceeds to step five, with the assistance of a
vocational expert, determine whether Plaintiff could perform
other jobs existing in significant numbers in the national
economy with the assessed limitations.
Edwards v. Colvin, No. 3:14-CV-776 (JGM) (Doc. No. 19).
On remand, ALJ Horton held additional hearings on December 18, 2015, R. at
2230–71, and August 30, 2016, id. at 2272–324. Edwards, with Attorney Katz, was
present at both hearings, the second of which was primarily devoted to taking the
testimony of Dr. Fuess––who, as noted above, testified before ALJ Thomas in 2009––
and vocational expert Edmond Calandra. At the August 2016 hearing, Attorney Katz
objected to Dr. Fuess’s testimony on the basis that Dr. Fuess had previously offered
testimony in Edwards’s case, id. at 2275, and objected to Calandra as unqualified, id. at
2308. ALJ Horton overruled both objections. Id. at 2276, 2309. Following these
hearings, ALJ Horton issued the Decision currently pending before this court on October
21, 2016. See id. 2194–229.
In her October 2016 Decision, ALJ Horton concluded that Edwards meets the
insured status requirements of the Social Security Act through December 31, 2007. Id.
at 2203. She further found that Edwards has not engaged in substantial gainful activity
since the alleged onset date of January 1, 2003. Id. She found that Edwards suffers
from the following severe impairments: polysubstance abuse; post-traumatic stress
disorder (“PTSD”); major depressive disorder; bipolar disorder; cervical and lumbar
degenerative disc disease; and asthma. Id. She noted that Edwards had suffered from
8
carpal tunnel syndrome in the past, but found that it is a non-severe impairment. Id. at
2203–04. She further noted that, although Edwards has suffered from intermittent
gastrointestinal issues and varicose veins, the Record contained no evidence that they
have caused more than minimal limitations. Id. at 2204. ALJ Horton found that
Edwards’s severe physical impairments did not meet the listings and concluded that
Edwards’s mental health conditions, including polysubstance abuse, did not meet or
medically equal a listing at any time. Id. In so concluding, she noted that Dr. Fuess
testified “that the claimant had mild restrictions in activities of daily living; moderate
restrictions in social functioning; mild limitations in concentration, persistence, and pace,
and no episodes of decompensation.” Id. Although ALJ Horton acknowledged that title
20, sections 404.1535 and 416.935 of the Code of Federal Regulations requires an ALJ
to determine whether a claimant’s drug and alcohol abuse (“DAA”) is a contributing
factor material to the determination of disability “when (1) the adjudicator finds that the
claimant is disabled, and (2) there is medical evidence of DAA during the relevant time
period,” she concluded that this analysis was unnecessary in light of her finding that
Edwards had not been disabled at any time. Id. at 2208.
ALJ Horton concluded that Edwards had the residual functional capacity (“RFC”)
to perform light work “with frequent climbing of ramps / stairs; balancing; stooping;
kneeling; crouching; crawling; no ladders / ropes / scaffolds; frequent handling and
fingering” and that she was limited to “[s]hort simple tasks and occasional contact with
the general public; can work around others but no collaborative work.” Id. at 2205.
Based on that RFC, ALJ Horton concluded that Edwards could perform occupations
such as Maid, Dictionary of Occupational Titles (“DOT”) number 323.687-014; Mail
9
Clerk, DOT number 209.687-026; and Assembler, DOT number 706.684-022. Id. at
2212. ALJ Horton found that there were 800,000 Maid jobs nationally, 100,000 Mail
Clerk jobs nationally, and 900,000 Assembler jobs nationally. Id. She therefore
concluded that jobs exist in “significant numbers in the national economy” that Edwards
could have performed prior to November 1, 2012, making a finding of “not disabled”
appropriate. Id. at 2212–13.
With respect to the time period from November 1, 2012, onward, however, ALJ
Horton noted that a person of advanced age (fifty-five years old) who is limited to light
work is considered disabled, and that the designation of “advanced age” can be applied
“non-mechanically” under certain limited circumstances to as early as six months before
a claimant’s fifty-fifth birthday. Id. at 2211. Finding that Edwards’s psychiatric condition
worsened in the wake of her son’s death and constituted an “additional adversity”
justifying a “non-mechanical application of the rules,” and, on this basis, found Edwards
disabled as of November 1, 2012. Id. Neither Edwards nor the Commissioner
challenged this finding in the pending Motions, and therefore this court has not
reviewed, and is not vacating, that aspect of ALJ Horton’s 2016 Decision.
IV.
STANDARD OF REVIEW
Under title 42, section 405(g) of the United States Code, it is not the district
court’s function to determine de novo whether the claimant was disabled. See Schaal v.
Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Instead, the court is limited to two lines of
inquiry: whether the ALJ applied the correct legal standard, and whether the record
contains “substantial evidence” to support her decision. See Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999). “Substantial evidence” is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
10
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
V.
ANALYSIS
In her Memorandum of Law in Support of her Motion to Reverse the decision of
the Commissioner, Edwards makes four arguments: (1) that ALJ Horton erred in her
application of the treating physician rule, Pl.’s Mem. at 11–19; (2) that ALJ Horton failed
to develop the record adequately, id. at 19–25; (3) that ALJ Horton’s credibility
determination was not supported by substantial evidence, id. at 25–27; and (4) that the
ALJ’s determination that work existed in substantial numbers in the national economy
that Edwards could perform prior to November 1, 2012, was not supported by
substantial evidence, id. at 27–36. The court addresses each of these arguments in
turn.
A.
Treating Physician Rule
The Record for this case includes treating source statements from the following
practitioners: (1) Dr. Julia Shi, internist, dated March 1, 2005, R. at 1126–30; (2) Dr.
Luis Gonzalez, psychiatrist, dated March 29, 2006, id. at 2164–71; (3) Gustavo Nava,
Licensed Clinical Social Worker (co-signed by Dr. J.L. Kurt), dated December 14, 2006,
id. at 1113–16; (4) Michael J. Kolpinski, M.S., dated October 30, 2007, id. at 976; and
(5) Dr. Richard H. Feuer, psychiatrist, dated November 8, 2012, id. at 2190–93. The
Record also contains a report dated July 20, 2006, written by state agency consultant
Jesus Lago, MD, which is based on an interview with Edwards. Id. at 448–49. In
addition, the Record contains written opinions from four state agency consultants,
including: (1) a case analysis by Dr. Thomas Hanny, MD, dated May 18, 2006, id. at
447; (2) a psychiatric review technique form by Dr. Warren Leib, Ph.D, dated August 3,
11
2006, id. at 450–63; (3) a case analysis by Anita Bennett, MD, dated January 4, 2007,
id. at 489; and (4) a mental RFC assessment, case analysis, and psychiatric review
technique form by Dominic Marino, Ph.D, dated January 9, 2007, id. at 490–508.
Finally, as noted in the procedural history, supra Section III, medical expert testimony by
non-examining sources was provided in 2009 by Dr. Fuess, in 2013 by Dr. Claiborn,
and in 2015 by Dr. Fuess.
The treating source rule requires that a treating source’s medical opinion be
given controlling weight if 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.” 20 C.F.R. § 416.927(c)(2). Even if controlling weight is
not given, “some weight may still be attached to that opinion, and the ALJ must still
designate and explain the weight that is actually given to the opinion.” Schupp v.
Barnhart, No. 3:02-CV-103 (WWE), 2004 WL 1660579, at *9 (D. Conn. Mar. 12, 2004);
see also 20 C.F.R. § 416.927(c)(2) (“Generally, we give more weight to medical
opinions from your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical evidence . . . .”).
Edwards argues that ALJ Horton did not comply with the mandates of the treating
physician rule in her evaluations of the medical source statements submitted by Dr.
Richard Feuer, R. at 2190–93, and Dr. Julia Shi, id. at 1126–32. Pl.’s Mem. at 14.
1. Opinion of Dr. Feuer
The Record contains a document entitled “Mental Residual Functional Capacity
Statement” authored by Dr. Richard Feuer, psychiatrist, on November 11, 2012. R. at
12
2190–93. Dr. Feuer noted that he had seen Edwards every two to four weeks since
April 2008. Id. at 2190; see also id. at 1200 (first treatment note by Dr. Feuer). In his
medical source statement, Dr. Feuer noted that Edwards suffers from bipolar disorder,
opioid dependence, cocaine dependence, PTSD, hepatitis C, asthma, and chronic pain.
Id. at 2190. In answer to the question, “Have your patient’s impairments, symptoms and
limitations lasted since 04/01/2005, the date your patient claims she could no longer
work?” he checked the box for “most likely.”6 Id. at 2190. Dr. Feuer then categorized a
series of functions in terms of whether they do not preclude performance of any aspect
of a job (“Category I”), preclude performance for five percent of the work day (“Category
II”), preclude performance for ten percent of the work day (“Category III”), or preclude
performance for fifteen percent or more of the work day (“Category IV”). Across twenty
functions he placed none in Category I, twelve in Category II, five in Category III,7 and
the following three in Category IV: (1) Perform activities within a schedule, maintain
regular attendance, and be punctual within customary tolerances; (2) Sustain an
ordinary routine without special supervision; and (3) Complete a normal workday and
workweek without interruptions from psychologically based symptoms, and perform at a
consistent pace without an unreasonable number and length of rest periods. Id. at
2191–92. He opined that Edwards could perform a full-time job less than half as
6
The other available options were: Yes, No, Probably, Possibly, and Unknown. R. at 2190. It
appears from the layout of the options (although it is not obvious) that “Most Likely” falls between
“Probably” and “Possibly.” Id.
7
Dr. Feuer put the following functions in Category III: (1) Understand and remember detailed
instructions; (2) Carry out detailed instructions; (3) Maintain attention and concentration for extended
periods of time; (4) Get along with coworkers or peers without distracting them or exhibiting behavioral
extremes; and (5) Set realistic goals or make plans independently of others. R. at 2191–92.
13
efficiently as an average worker. Id. at 2193. He listed Edwards’s current GAF8 score
as 50, and stated that her highest GAF score that year had been 56. In closing, Dr.
Feuer offered the following opinion: “There has been deterioration in patient’s
psychiatric condition since her son was murdered in 6 / 2012. Her impairments,
however, have been evident since I began to treat her in 2008.” Id.
ALJ Horton considered Dr. Feuer’s medical source statement in her October
2016 Decision. Id. at 2210. She declined to give Dr. Feuer’s opinion controlling weight,
noting that she had “given some weight to this opinion, but it appears that most of it was
generated based on the period from June 2012 to November 2012 and is not a clear
picture of the four and a half year history.” Id. at 2210.
Edwards argues that “[t]here is nothing in Dr. Feuer’s Mental Residual Functional
Capacity Statement to suggest that his function-by-function assessment of Ms.
Edwards’s condition applies only to the June 2012 to November 2012 period despite the
ALJ’s speculation to the contrary.” Pl.’s Mem. at 16. The Commissioner, on the other
hand, argues that “most of Dr. Feuer’s opinion is consistent with and supports the ALJ’s
RFC finding” and that “to the extent that Dr. Feuer’s opinion contains some more
restrictive assessments, the ALJ gave good reasons for declining to give greater weight
to the opinion.” Def.’s Mem. at 7. For example, the Commissioner notes that Dr.
Feuer’s medical source statement listed her current GAF at 50, but her highest in the
8
According to the DSM IV, the Global Assessment of Functioning (“GAF”) is a rating of overall
psychological functioning on a scale of 0 to 100. A rating of 41–50 indicates serious symptoms (such as
suicidal ideation, several obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (such as having no friends or being unable to keep a job). A rating of
51–60 means moderate symptoms (such as flat affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or school functioning (such as having few friends or
conflicts with peers or co-workers). Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.
1994).
14
past year as 56, which is consistent with a decline in the wake of her son’s murder. Id.;
R. at 2191. The Commissioner also cites to Dr. Feuer’s treatment notes, discussed by
ALJ Horton in her October 2016 Decision, which generally reflect that she was pleasant
and her mood was stable. See Def.’s Mem. at 8; R. at 2207.
Although they are factually accurate, there are two problems with the
Commissioner’s assertions. First, the facts that Edwards generally presented with a
mood that was “fair” or “mid-range” and had a GAF score as high as 56 in 2012 do not
undermine Dr. Feuer’s opinions with respect to Edwards’s capacity to work efficiently,
follow a schedule, sustain a routine, and work regularly without interruptions caused by
her psychological impairments. Cf. Quinones on Behalf of Quinones v. Chater, 117
F.3d 29, 35 (2d Cir. 1997) (rejecting ALJ’s daily-activities explanation on the ground that
while “these activities suggest that Jennifer is ‘sometimes’ able to complete simple, ageappropriate tasks, they do not refute [evidence] that Jennifer has ‘constant’ difficulty in
completing both simple and complex age-appropriate tasks”). With respect to the mood
notes in particular, those notes are arguably most relevant to social interaction
functions. In that area, Dr. Feuer’s assessments were entirely consistent with his
treatment notes: he placed Edwards in “Category II” (precludes performance for five
percent of an eight-hour work day) for interacting appropriately with the general public,
asking simple questions or requesting assistance, accepting instructions and
responding appropriately to criticism from supervisors, and maintaining socially
appropriate behavior and adhering to basic standards of neatness and cleanliness, and
in “Category III” (precludes performance for ten percent of an eight-hour work day) for
getting along with coworkers or peers without distracting them or exhibiting behavioral
15
extremes. R. at 2191.
The second problem with the Commissioner’s reliance on Dr. Feuer’s treatment
notes is that ALJ Horton did not cite Dr. Feuer’s treatment notes as the basis for her
decision not to give Dr. Feuer controlling weight. The court recognizes that ALJ Horton
clearly reviewed Dr. Feuer’s notes and discusses them in her Decision in the same
section that she analyzed Dr. Feuer’s medical source statement. See id. at 2207–08.
However, she explains her decision to give Dr. Feuer’s opinion “some weight” on the
basis that “most of it was generated based on the period from June 2012 to November
2012 and is not a clear picture of the four and a half year history.” Id. at 2210. She did
not discuss Dr. Feuer’s opinions with respect to Edwards’s limitations and how, if at all,
those opinions are contradicted by his treatment notes.
Having considered ALJ Horton’s Decision and the arguments raised by Edwards
and the Commissioner, the court concludes that Dr. Feuer’s medical source statement
is simply ambiguous. It may be that by saying that Edwards’s “impairments have been
present” since 2008, Dr. Feuer intended to apply his opinions to the past four and a half
years. It may be that by saying that Edwards’s psychiatric condition had “deteriorated”
since June 2012, Dr. Feuer meant that Edwards was not severely impaired prior to that
time.9 ALJ Horton’s conclusion that Dr. Feuer meant the latter was “sheer speculation.”
Selian v. Astrue, 708 F.3d 409, 421 (2d Cir. 2013).
Given the ambiguity of Dr. Feuer’s opinion, ALJ Horton should have re-contacted
Dr. Feuer for clarification. An ALJ in a social security benefits hearing has an
9
The court notes that it is further speculation on ALJ Horton’s part to conclude that, if Edwards’s
condition “deteriorated” in the wake of her son’s murder in June 2012, she was not disabled until
November 2012.
16
affirmative obligation to develop the record adequately. See Rosa, 168 F.3d at 79.
Although this obligation is heightened where the plaintiff is pro se, see Echevarria v.
Secretary of HHS, 685 F.2d 751, 755 (2d Cir. 1982), the “non-adversarial nature” of
social security benefits proceedings dictates that the obligation exists “even when . . .
the claimant is represented by counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)
(“It is the rule in our circuit that ‘the ALJ, unlike a judge in a trial, must himself
affirmatively develop the record’ . . . .”) (quoting Echevarria, 685 F.2d at 755).
The expert opinions of a treating physician are of particular importance to a
disability determination. See Hallet v. Astrue, No. 3:11-cv-1181 (VLB), 2012 WL
4371241, at *6 (D. Conn. Sept. 24, 2012) (concluding that, “[b]ecause the expert
opinions of a treating physician as to the existence of a disability are binding on the
factfinder, it is not sufficient for the ALJ simply to secure raw data from the treating
physician” and remanding for further development of the record); Ayer v. Astrue, No.
2:11-CV-83, 2012 WL 381784, at *3 (D. Vt. Feb. 6, 2012) (remanding to the ALJ “given
the ALJ’s failure to request medical opinions from any of Ayer’s treating providers . . .
which resulted in a substantial gap in the record”).
The duty to develop the record sometimes demands that ALJs re-contact treating
sources for clarification. See, e.g., Selian, 708 F.3d at 421 (noting that before relying
on a “remarkably vague” treating physician’s opinion that contradicted claimants
testimony, “[a]t a minimum, the ALJ likely should have contacted [the treating physician]
and sought clarification of his report.”); Cammy v. Colvin, No. 12-CV-5810 (KAM), 2015
WL 6029187, at *16 (E.D.N.Y. Oct. 15, 2015) (remanding because the ALJ failed to
seek additional information from the treating physicians to clarify inconsistencies);
17
Gabrielsen v. Colvin, No. 12-CV-5694 (KMK) (PED), 2015 WL 4597548, at *7 (S.D.N.Y.
July 30, 2015) (finding that the ALJ had the obligation to re-contact the treating
physician to seek clarifying information given the treating physician’s unique position to
resolve certain inconsistencies); Ryszetnyk v. Astrue, No. 12-CV-2431 (SLT), 2014 WL
2986700, at *11 (E.D.N.Y. July 1, 2014) (remanding where the ALJ made no attempt to
clarify the inconsistency between the treating physician’s treatment notes and his
source statement); but see Vanterpool v. Colvin, No. 12-CV-8789 (VEC)(SN), 2014 WL
1979925, at *17 (S.D.N.Y. May 15, 2014) (holding that the ALJ was not required to
contact the physician for further information or clarification when the record was
complete).
Re-contacting treating sources to clarify opinions is governed by title 20, section
404.1520b of the Code of Federal Regulations (“section 404.1520b”). An ALJ is not
always required to re-contact a treating physician to clarify inconsistencies or address
incompleteness. Rather, section 404.1520b provides that ALJs “may need to” take
action to clarify the record “if after considering the evidence we determine we cannot
reach a conclusion about whether you are disabled.” 20 C.F.R. § 404.1520b(b)(2).
Although re-contacting a treating source is listed as the first option for clarifying the
record, section 404.1520b explicitly provides that the ALJ may choose not to re-contact
the treating source “if we know from experience that the source either cannot or will not
provide the necessary evidence.” See 20 C.F.R. § 404.1520b(b)(2)(i).10 However,
neither ALJ Horton nor the Commissioner has asserted that Dr. Feuer was unavailable
10
Other methods for completing or clarifying the record that are listed in section 404.1520b
include requesting additional evidence, asking the claimant to undergo a consultative examination, or
asking the claimant or others for more information. 20 C.F.R. § 404.1520b(ii)–(iv).
18
for consultation or that requesting clarification would be “futile.” See Gabrielsen, 2015
WL 4597548, at *7 (“[T]he ALJ has made no finding, nor has the Commissioner made
any argument, about why [the treating physician] could not have resolved at least some
of the inconsistencies at issue, the only circumstance in which the regulations explicitly
provide that re-contacting the treating physician is inappropriate.”). To the contrary, the
Record reflects that Dr. Feuer was still Edwards’s treating source as recently as
December 2015, and the ambiguity at issue––how long he believes Edwards has had
the relevant limitations––is clearly a question that he is well suited to answer.
Therefore, while the court recognizes that ALJs are not required to re-contact a
treating source simply because they disagree with the treating source’s conclusions, recontacting is required in this case where ALJ Horton’s conclusion that Dr. Feuer’s
opinion applied only to the time period after June 2012 is sheer speculation, and the
Record is otherwise inconclusive as to Edwards’s functional limitations.
In determining that this case must be remanded for full development of the
record, the court is fully cognizant of the painfully long procedural history in this case.
The ambiguity of Dr. Feuer’s opinion is not, however, an insignificant detail. If it is true
that Edwards had “Category IV” limitations in the areas specified by Dr. Feuer, that
would alter the vocational analysis such that Edwards would be disabled. ALJ Horton
herself clearly understood this from her questioning of Calandra. During Calandra’s
testimony at the August 2016 hearing, the following occurred:
ALJ Horton: [I]f she was . . . limited such that she would be
off task, whether it’s from needing additional breaks or
otherwise, 15% of the workday, would she be able to do those
jobs?
Calandra: No.
19
ALJ Horton: Would she be able to do any jobs if she was off
task 15% of the workday?
Calandra: No.
ALJ Horton: And rather than be off task, if she was to be
absent from work one to two times a month on a regular basis,
would she be able to do those jobs?
Calandra: No.
ALJ Horton: Would she be able to do any jobs?
Calandra: No.
R. at 2310. During examination of Calandra by Attorney Katz, the following occurred:
Attorney Katz: Mr. Calandra, if the individual that you have
testified in response to Her Honor’s hypothetical was unable
to maintain attention and concentration for extended periods
of time over 10% of the workday, would that preclude
employment?
Calandra: Well, if that renders them off task for more than
10% of the workday, there would be no work.
Attorney Katz: All right. And if the individual was unable to
perform the activities within a schedule, maintain regular
attendance and be punctual within customary tolerances 10%
of the time, would that preclude all the jobs you testified to?
Calandra: . . . . So the 10%––I don’t want to start doing the
calculation of what that is over a––a 40-hour work week times
4 weeks, but if they’re late and it exceeds––or if they’re absent
unplanned more than 8 hour per month, then that would
exclude employment.
Attorney Katz: Okay. And if the individual was unable to
sustain an ordinary work routine without special supervision
10% of the time, would that preclude the employment?
Calandra: We’re talking about an unskilled job that takes––
well, at most, 30 days, with typically a week or two, after that
learning period for an unskilled occupation, they are expected
to carry out their job duties. Any additional out of the ordinary
supervision on a––a regular basis to correct or advise or
remind would result in termination.
20
Id. at 2315–16. These questions and responses reflect the three areas in which Dr.
Feuer placed Edwards in “Category IV,” as detailed above. Therefore, in the opinion of
the vocational expert (upon whose testimony ALJ Horton relied in concluding that work
existed in significant numbers in the national economy that Edwards could perform prior
to November 1, 2012), any one of the three limitations described by Dr. Feuer as a
“Category IV” would be sufficiently limiting to render Edwards disabled under the
meaning of the Social Security Act.
Of course, after clarification ALJ Horton could still apply the treating physician
rule and decide that Dr. Feuer’s opinion was not entitled to controlling weight if the
record supports such a finding. However, given the ambiguity of his opinion with
respect to the time period at issue, the significance of Dr. Feuer’s opinion as to
Edwards’s disability determination, and the importance generally placed on the opinions
of treating physicians (particularly where, as here, the physician is a specialist in the
relevant field who sees Edwards frequently and has been treating her for years), the
court concludes that remand is necessary for further development of the record in the
form of re-contacting Dr. Feuer to clarify his treating source opinion.
2.
Opinion of Dr. Shi
Dr. Shi’s medical source statement was signed under date of March 1, 2005.
See R. at 1126–32. She stated that she was treating Edwards for asthma, opioid
dependence, depression, and mood disorder, and opined that Edwards would be
unable to work for “6 mos. or more.” Id. Dr. Shi wrote “N/A” next to all the fields relating
to exertional limitations such as lifting, carrying, pushing, and pulling. Id. at 1127. She
answered “yes” to the question, “Does this person have mental health or substance
21
abuse issues that impact his / her ability to work?,” but wrote “deferred [to] evaluation
appointment 3/9/05” or “Northside evaluation 3/9/05” next to all the fields inquiring as to
specific mental functional capacity limitations. See id. at 1129–30.
In her 2016 Decision, ALJ Horton gave little weight to Dr. Shi’s opinion, on the
basis that Dr. Shi is an internist who “cannot assess the claimant’s mental health status
at that time.” Id. at 2210. Edwards construes this clause as a statement that because
Dr. Shi is an internist she is incapable of evaluating the claimant’s mental health status.
Pl.’s Mem. at 15 (directing the court to a Recommended Ruling for a case in which “the
ALJ rejected a treating physician’s opinion on the ground that the physician is not a
specialist in orthopaedics”). Although ALJ Horton’s use of the present tense “cannot”
could be interpreted as making such a statement, the court interprets ALJ Horton’s
evaluation as reflecting the fact that Dr. Shi herself deferred the mental health
evaluation to the “Northside” evaluation scheduled for March 9, 2005, a conclusion
buttressed by the fact that ALJ Horton ended the sentence with the phrase “at that
time.” In other words, the court concludes that the best reading of ALJ Horton’s
evaluation is that Dr. Shi “could not assess the claimant’s mental health status at that
time,” a description that is wholly supported by Dr. Shi’s opinion statement. The court
therefore concludes that ALJ Horton’s determination with respect to Dr. Shi’s opinion
statement is supported by substantial evidence.
It is troubling, however, that the “Northside” evaluation referenced in Dr. Shi’s
medical opinion statement does not appear to be in the Record. Although it is unclear
whether the March 9, 2005 evaluation took place, record evidence indicates that
Edwards was first diagnosed with bipolar disorder at Northside in 2007. Id. at 1247
22
(psychiatric intake evaluation from Connecticut Valley Hospital noting “Dx of Bipolar this
year – made @ Northside”). During the supplementary hearing held on August 30,
2016, ALJ Horton asked Attorney Katz where the Northside records were, and Attorney
Katz responded, “I have not gone through the 2,200 pages in order to find the Northside
notes, but they’re in there. I will find the Northside notes for Your Honor.” Id. at 2296–
97. No further mention of Northside is made during the August 2016 hearing, and there
are no medical records labeled “Northside” in the Record. There are indications in the
Record that “Northside” may be Hill Health Center, however, and the Record does
contain treatment records from Hill Health Center that are contemporaneous with Dr.
Shi’s medical opinion statement. Id. at 464–88 (Hill Health Center records dated
December 13, 2005, to September 19, 2006). However, those records do not appear to
include a mental status examination or any records dated March 9, 2005. This may
mean that the evaluation that Dr. Shi referred to never occurred, or that the report of the
evaluation was not provided when the treatment records were released, or that Hill
Health Center is not “Northside.” Because this case is being remanded for further
development of the record, on remand the ALJ should seek to obtain a report of the
March 9, 2005, if it occurred.
23
3. Opinion of Dr. Gonzalez
The Record contains a treating source opinion entitled “Medical Report” by Dr.
Luis R. Gonzalez, a psychiatrist. R. at 2164–71 (repeated at 2182–89). Dr. Gonzalez
noted that he was treating Edwards for depression and PTSD in March 2006. Id. at
2164. He recorded her current GAF as 40, and her highest GAF score that year also as
40. Id. He opined that she was unable to work at that time, and she would be for
twelve months or more. Id. He noted that, while she was in residential treatment, “her
symptoms of anxiety and depression are reported as worse.” Id. He wrote “N/A” next to
the fields pertaining to physical limitation, but categorized Edwards as “moderately
limited” in thirteen of twenty mental functions and as “markedly limited” in one:
responding appropriately to changes in the work setting. Id. at 2186–87.
In her October 2016 Decision, ALJ Horton did not mention Dr. Gonzalez’s
medical source statement. See id. at 2164–71. The October 2016 Decision does note,
however, that the Record contains “an incomplete and unsigned medical report for state
benefits in 2006” and cites Exhibit 80F, which appears in the Record at 2139–89, the
part of the Record where Dr. Gonzalez’s opinion appears. Id. at 2210. ALJ Horton
gave this report limited weight on the basis that “there is no mention of substance abuse
in this record” and “it is well-established that the claimant was actively using substances
at this time.” Id.
Edwards does not challenge this finding, or ALJ Horton’s failure to consider Dr.
Gonzalez’s treating source opinion, in her pending Motion to Reverse. Edwards did,
however, challenge the exact same language as it appeared in ALJ Horton’s February
2014 Decision in her Motion to Reverse that Decision. See Plaintiff’s Memorandum of
24
Law (Doc. No. 18) at 18, Edwards v. Colvin, No. 14-cv-776 (JGM). During the
December 2015 hearing, Attorney Katz summarized the issues that were raised on
appeal from ALJ Horton’s February 2014 Decision and mentioned that he had raised a
treating physician rule argument with respect to Dr. Gonzalez’s opinion. R. at 2238.
ALJ Horton’s analysis in her February 2014 and August 2016 Decisions with respect to
this “incomplete and unsigned medical report” is identical––and identically incorrect.
Compare id. at 2210 (October 2016 Decision) with id. at 1279 (February 2014
Decision). First, Dr. Gonzalez’s report is signed. Id. at 2171. Second, it appears to be
complete, as it begins with “Section A. General Information” and ends with Dr.
Gonzalez’s signature. Id. at 2164, 2171. Third, it is replete with references to
Edwards’s substance abuse problems. See, e.g., id. at 2164 (noting that Edwards has
a “history of substance abuse (cocaine / opiate)”); id. (“Now that she [sic] in a residential
therapy facility her symptoms of anxiety and depression are reported as worse.”); id. at
2168 (listing opiate and cocaine dependence in the section asking for DSM-IV
diagnoses); id. at 2170 (listing Edwards’s history of outpatient psychiatric treatment
facilities, including APT Foundation, Yale Health, and Community Mental Health Clinic).
In short, Dr. Gonzalez’s opinion is neither incomplete nor unsigned, and it makes many
references to Edwards’s substance abuse. That ALJ Horton concluded to the contrary
(in two separate Decisions) is made all the stranger by the fact that Gonzalez’s report
actually appears twice in Exhibit 80F––at pages 2164–71 and pages 2182–89.
The treating source rule demands that ALJs “will always consider the medical
opinions in your case record,” and places particular importance on the opinions of
treating physicians. 20 C.F.R. § 416.927(b)–(c). Dr. Gonzalez authored the medical
25
source opinion in question while he was treating Edwards, and during the time period in
dispute. Therefore, on remand, the ALJ should consider Dr. Gonzalez’s opinion
evidence along with the other evidence in this case, and make findings in accordance
with the treating physician rule.
B.
Adequate Development of the Record
In her Memorandum, Edwards argues that ALJ Horton did not adequately
develop the record because she failed to obtain, or attempt to obtain, a medical opinion
from one of Edwards’s treating physicians, Dr. Daniel Wilensky. Pl.’s Mem. at 20. As
noted in the court’s analysis with respect to Dr. Feuer’s opinion statement, ALJs have
an affirmative duty to develop the record. See supra Section V(A)(1).
The Commissioner argues that the ALJ was not obligated to develop the record
further in this case because the medical record is extensive, the plaintiff and her
attorney had many opportunities to submit additional records and failed to do so, and
plaintiff’s counsel represented at the December 18, 2015 hearing that the record was
“as complete as can be made humanly possible.” Def.’s Mem. at 11–14 (quoting R. at
2234).
Whether ALJ Horton fulfilled her obligation to develop the record in failing to
obtain an opinion from Dr. Wilensky is a close question. As aforementioned, ALJs have
a duty to develop the record even in cases where the claimant is represented by
counsel and may not delegate her duty to develop the record to the claimant’s attorney.
See Pratts, 94 F.3d at 37; see also Newsome v. Astrue, 817 F. Supp. 2d 111, 137
(E.D.N.Y. 2011) (“The fact that the ALJ requested additional information from the
Plaintiff’s attorney and did not receive that information does not relieve the ALJ of his
duty to fully develop the record.”); Harris v. Colvin, No. 11-CV-1497, 2013 WL 5278718,
26
at **7–8 (N.D.N.Y. Sept. 18, 2013) (noting “with frustration” claimant’s counsel’s failure
to provide documents as promised, but nevertheless concluding that “the ALJ’s reliance
on claimant’s counsel to obtain the treating physician records was inadequate”); but see
Rivera v. Comm’r of Soc. Sec., 728 F. Supp. 2d 297, 330 (S.D.N.Y. 2010) (“Courts do
not necessarily require ALJs to develop the record by obtaining additional evidence
themselves, but often permit them to seek it through the claimant or his counsel.”). At
the same time, district courts in this Circuit and unpublished orders from the Second
Circuit have concluded that ALJs adequately developed the record without personally
contacting treatment providers “where the ALJ did more than solely rely on the plaintiff’s
counsel to satisfy the duty to develop.” Corona v. Berryhill, No. 15-CV-7117 (MKB),
2017 WL 1133341, at *14 (E.D.N.Y. Mar. 24, 2017) (citing Frye ex rel. A.O. v. Astrue,
485 Fed. App’x 484, 488 n.2 (2d Cir. 2012) (summary order); Jordan v. Comm’r of Soc.
Sec., 142 Fed. App’x 542, 543 (2d Cir. 2005) (summary order)).
The Second Circuit considered this issue most recently in Guillen v. Berryhill.
697 Fed. App’x 107 (2d Cir. 2017) (summary order). In Guillen, the Second Circuit
noted that Guillen’s “medical records obtained by the ALJ do not shed any light on
Guillen’s residual functional capacity, and the consulting doctors did not personally
evaluate Guillen.” Id. at 108–09. Furthermore, although the Commissioner argued that
the ALJ had twice requested an opinion from Guillen’s treating physician, the Second
Circuit noted that “it is unclear from the record that such a request was even made.” Id.
at 110. The Second Circuit further emphasized Guillen’s pro se status, noting that the
ALJ’s duties are heightened with pro se claimants. Id. at 108.
In this case, the court agrees with the Commissioner that the record is
27
voluminous. ALJ Horton had the benefit of nearly one hundred separate medical
records at the time of her October 2016 Decision. Furthermore, over multiple remands,
the absence of an opinion statement from Dr. Wilensky was never raised by Edwards or
anyone else, as Edwards acknowledges in her Memorandum. See Pl.’s Mem. at 20
(“No one––least of all the ALJ––appears to have sought a medical source statement
from Dr. Wilensky . . . .”). To the contrary, throughout the December 2015 hearing,
Attorney Katz (who has represented Edwards throughout her application process)
commented repeatedly on the comprehensiveness of the record, most notably informing
ALJ Horton that the record was “as complete as can be made humanly possible.” R. at
2234; see also id. at 2238–42 (noting that previously missing evidence is now in the
record). That no one seemed to notice that the record did not contain an opinion by
Edwards’s treating primary care physician for the first nine years that Dr. Wilensky was
treating Edwards (or prior to any of the five hearings, three ALJ Decisions, and two
appeals to the District of Connecticut that occurred in those nine years) strikes this court
as quite odd.
If the absence of a treating source opinion by Dr. Wilensky was the only gap in
the Record, it would be a close question whether remand would be warranted on that
basis alone. However, because the court has already concluded that remand is
necessary to clarify Dr. Feuer’s treating source opinion, the court further orders that, on
remand, the ALJ contact Dr. Wilensky to obtain a treating source opinion as well, in the
hope that this will be the last remand ever required for Edwards’s application. Because
the court is vacating ALJ Horton’s October 2016 Ruling only with respect to her decision
about the period from January 1, 2003, to November 1, 2012, the court notes that Dr.
28
Wilensky should be asked to provide his opinion as to Edwards’s functional capacity
during that time period, not her current functional capacity.
Furthermore, in the spirit of ensuring that no more remands will be needed in this
case, the court recommends that, on remand, care be taken to inspect the Record and
inquire of Edwards whether there are additional providers with whom she was treating
regularly during this time period and, if so, steps be taken to obtain opinions from those
sources as well. In particular, it appears that Edwards was seeing William Colson,
Licensed Alcohol and Drug Abuse Counselor, regularly for at least some of the relevant
period of time. See R. at 1175–221. Although Colson is not a physician and therefore
would not be entitled to controlling weight under the treating physician rule, the court
suggests that his opinion may be useful in making a determination on remand.
C.
Credibility Determination of Edwards’s Testimony
Edwards argues that ALJ Horton “discounted to insignificance” Edwards’s
testimony regarding the pain she experienced. Pl.’s Mem. at 25. During the December
2015 hearing, Edwards testified that she is “always in serious pain,” R. at 2253, and that
she had been going to physical therapy for her pain for four or five years, id. at 2266.
She testified that she had been referred to a pain clinic during the summer of 2015, and
that she was experiencing serious pain in her neck during the hearing itself. Id. at 2265,
2266. She also testified, however, that Suboxone (which she takes to control heroin
cravings) helps with the pain, id. at 2251–52, and that between the last hearing with ALJ
Thomas and the first hearing with ALJ Horton (from 2009 to 2013) she was “a lot more
able even then to get around and do things.” Id. at 2258.
ALJ Horton recited Edwards’s treatment history with respect to neck and back
pain and took that pain into consideration in determining that Edwards was limited to a
29
range of light work. Id. at 2208–09. Furthermore, ALJ Horton found that Edwards was
disabled as of November 1, 2012, and Edwards herself indicated that her neck and
back pain had worsened recently. Given Edwards’s testimony, the medical record, and
the fact that ALJ Horton did factor pain into her RFC determination, the court finds no
legal error in ALJ Horton’s evaluation of Edwards’s testimony with respect to her pain.
That said, given that this case is being remanded for further development of the
record, including to obtain a treating source opinion from Edwards’s primary care
physician, Dr. Wilensky, the court notes that the ALJ may need to revisit this conclusion
in light of new information in the Record.
D.
Determination that Jobs Existed in Substantial Numbers in the National
Economy
Edwards’s final argument is that ALJ Horton’s finding that jobs exist in substantial
numbers in the national economy that Edwards could have performed between January
1, 2003, and November 1, 2012, was not supported by substantial evidence because
the testimony of vocational expert Edmond Calandra as to the number of Mail Clerk jobs
in the national economy was “conjured out of whole cloth.” Pl.’s Mem. at 27–35
(quoting Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 450 (2d Cir. 2012)).
During his testimony at the August 2016 hearing, Calandra testified that a person
with Edwards’s RFC could perform the work of Mail Clerk, Maid, or Assembler.
Although he based this testimony on the job description laid out in the Directory of
Occupational Titles (“DOT”), his testimony as to the number of jobs in the national
economy in each of these professions was based on the Bureau of Labor Statistics data
for the jobs defined in the Standard Occupational Classification. R. at 2312–13. During
the questioning of Calandra by Attorney Katz, the following occurred:
30
Attorney Katz: Mr. Calandra, the Bureau of Labor Statistics
does not report job incidence data according to DOT code,
does it?
Calandra: It does not.
Attorney Katz: And it reports it according to Standard
Occupational Classification?
Calandra: They––they may list a number of SOC code
numbers in with those numbers, yes.
Attorney Katz: Well, if you go into the BLS website and the
opening page, well, there are several opening pages, but
once you get to the numbers associated with the job title, for
instance, Mail Clerk, if you scrolled into another page or two,
they will give you a brief description of what they consider the
essential duties of that occupation to be that they are
associating the numbers and if that––if that––if those
essential duties that they describe them are consistent with
the DOT code number or numbers for a Mail Clerk, then I’m
comfortable using those numbers because that essentially
are––those are essentially the same essential duties that
they’re associating with a––for instance, a Mail Clerk.
Attorney Katz: Would those have differing exertional levels or
skill levels?
Calandra: Well, no. A mail clerk, and there are a number of
DOT code numbers that identify as a Mail Clerk, they are all
at the light level and they’re all unskilled, so I would have no
reason to––to question that they are skilled and the numbers
are unskilled and light.
Id. at 2312–13. Despite Calandra’s testimony to the contrary, Edwards asserts in her
Memorandum that the SOC classification for Mail Clerk includes fourteen separate DOT
positions, eight of which could not be performed by a person with Edwards’s RFC. Pl.’s
Mem. at 29. In a footnote, Edwards argues that the same problem exists with respect to
the Assembler position. Id. at 30 n.53 (asserting that there are 1590 DOT-specified
occupations in the SOC classification cited by Calandra for assembler, and only
241,910 persons employed in all 1590 occupations despite Calandra’s testimony that
31
900,000 assembler positions existed in the national economy).
In response to this argument, the Commissioner argues that ALJ Horton
“reasonably relied on the vocational expert’s testimony, as he identified the source he
used, and he had experience placing people in the identified jobs.” Def.’s Mem. at 17.
In support of her position, the Commissioner notes that the Second Circuit has held that
a vocation expert is “not required to identify with specificity the figures or sources
supporting his conclusion, at least where he identified the sources generally.” Id. at 17–
18 (quoting McIntyre v. Colvin, 758 F.3d 146, 152–54 (2d Cir. 2014)). Nevertheless, the
Second Circuit has also held that “evidence cannot be substantial if it is ‘conjured out of
whole cloth.’” Brault, 683 F.3d at 450 (quoting Donahue v. Barnhart, 279 F.3d 441, 446
(7th Cir. 2002)). There is no question that Calandra generally identified his source,
namely the SOC data. Whether this evidence actually supports a finding that jobs exist
in significant numbers is more dubious. It does not require an advanced grasp of logic
to understand that “Edwards can perform positions one through six” and “positions one
through fourteen exist in substantial numbers in the national economy” do not tell us
whether Edwards can do jobs that exist in substantial numbers in the national economy.
See, e.g., Voight v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015) (“[M]any [vocational
experts] estimate the number of jobs of a type the applicant for benefits can perform by
the unacceptably crude method of dividing the number of jobs in some large category
(which may be the only available data) by the number of job classifications in the
category, even though there is no basis for assuming’ that there is the same number of
jobs in each category.” (internal citations omitted)).
The Commissioner also argues that Maid, Mail Clerk, and Assembler are “readily
32
recognizable occupations” and therefore “any reduction in the job incidence numbers for
these jobs could not plausibly reduce the incidence so substantially that all three would
fall below a significant number in the national economy.” Def.’s Mem. at 18. However,
this was not the basis upon which either Calandra or ALJ Horton based their findings:
Calandra testified that his numbers were based on the SOC data, R. at 2312–13, and
ALJ Horton based her conclusion on Calandra’s testimony, id. at 2212. Thus, the
question is whether the SOC data provided substantial evidence for ALJ Horton’s
conclusion with respect to job numbers. The court further notes that, although the terms
“maid,” “mail clerk,” and “assembler” are not obscure, the specific job demands with
respect to exertional and non-exertional limitations of each position are hardly common
knowledge, and the court is therefore skeptical of the Commissioner’s proposed
“common sense” approach to job numbers.
Finally, the Commissioner argues that Edwards has made no arguments with
respect to the job of Maid, and “the ALJ was required to identify only one job existing in
significant numbers.” Def.’s Mem. at 17. ALJ Horton concluded that there were
800,000 Maid jobs in the national economy, and Edwards has not challenged this
finding. The court therefore agrees with the Commissioner that the Maid job is
sufficient, on its own, to satisfy the requirement that jobs must exist in significant
numbers in the national economy and concludes that ALJ Horton’s conclusion with
respect to the existence of significant numbers of jobs in the national economy was
supported by substantial evidence.
VI.
CONCLUSION
For the foregoing reasons, Edwards’s Motion to Reverse the Decision of the
Commissioner (Doc. No. 20) is hereby GRANTED and the Commissioner’s Motion to
33
Affirm the Decision of the Commissioner (Doc. No. 21) is hereby DENIED. The ALJ’s
October 2016 Decision is vacated with respect to the time period prior to November 1,
2012, and the case is remanded to the Social Security Administration for further
proceedings consistent with this Ruling. 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 District Judge who issued the Ruling that
remanded the case.
SO ORDERED.
Dated at New Haven, Connecticut this 31st day of January, 2018.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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