Torres v. Berryhill

Filing 21

ORDER granting 19 Motion to Reverse the Decision of the Commissioner; denying 20 Motion to Affirm the Decision of the Commissioner. Signed by Judge Donna F. Martinez on 3/29/2019. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CARMELITA HERMINIA TORRES,

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

CASE NO.

3:17CV605(DFM)

RULING AND ORDER
The plaintiff, Carmelita Herminia Torres, seeks judicial
review pursuant to 42 U.S.C. § 405(g) of a final decision by the
Commissioner

of

Social

Security

("Commissioner")

denying

her

applications for social security disability insurance benefits and
supplemental security income.

The plaintiff asks the court to

reverse the Commissioner's decision or, alternatively, remand for
a rehearing.

(Doc. #19.)

The Commissioner, in turn, seeks an

order affirming the decision.

(Doc. #20.)

For the reasons set

forth below, the plaintiff's motion is granted and the defendant's
motion is denied.1
I.

Administrative Proceedings
On April 4, 2013, the plaintiff filed applications alleging

1The

parties consented to the jurisdiction of a magistrate
judge and the case was transferred to the undersigned. (Doc. #15.)

that she had been disabled since October 1, 2012.
180.)

(R.2 at 174-

The plaintiff's applications were denied initially on June

3, 2013, and upon reconsideration.

She requested a hearing before

an Administrative Law Judge ("ALJ"). (R. at 110.)

On May 20,

2015, a hearing was held at which the plaintiff, represented by
counsel, testified. (R. at 24-63.)

On July 27, 2015, the ALJ

issued a decision denying the plaintiff’s claims.

(R. at 7-23.)

On February 22, 2017, the Appeals Council declined review, making
the ALJ's decision final. (R. at 1-4.)
II.

This action followed.

Standard of Review
The court may reverse an ALJ's finding that a plaintiff is

not disabled only if the ALJ applied the incorrect legal standards
or if the decision is not supported by substantial evidence.
Brault v. Soc. Sec. Admin., 683 F.3d 443, 447 (2d Cir. 2012).

In

determining

by

whether

the

ALJ's

findings

"are

supported

substantial evidence, 'the reviewing court is required to examine
the entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.'" Talavera v.
Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). "Substantial evidence
is more than a mere scintilla. . . . It means such relevant evidence

2The

administrative record filed by the Commissioner shall be
referred to as "R."
2

as

a

reasonable

mind

might

accept

as

adequate

to

support

a

conclusion." Brault, 683 F.3d at 447 (quotation marks and citations
omitted).
III. Statutory Framework
The Commissioner of Social Security uses the following fivestep procedure to evaluate disability claims:
First, the [Commissioner] considers whether the claimant
is currently engaged in substantial gainful activity. If
he is not, the [Commissioner] next considers whether the
claimant has a "severe impairment" which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment,
the third inquiry is whether, based solely on medical
evidence, the claimant has an impairment which is listed
in Appendix 1 of the regulations. If the claimant has
such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as
age, education, and work experience.... Assuming the
claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe
impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable
to perform his past work, the [Commissioner] then
determines whether there is other work which the
claimant could perform.
Rosa

v.

Callahan,

168

F.3d

72,

77

(2d

Cir.

1999)

(internal

alterations and citation omitted).
IV.

The ALJ's Decision
Following the five-step evaluation process, at step one, the

ALJ found that the plaintiff had not engaged in substantial gainful
activity since her alleged onset date of October 1, 2012.
13.)

(R. at

At step two, the ALJ concluded that the plaintiff had a
3

severe impairment of seronegative rheumatoid arthritis. (Id.) The
ALJ

found

that

the

plaintiff's

hyperthyroidism,

torticollis,

cervical strain and endometriosis were not severe impairments
because

they

requirement.”

did

not

meet

the

twelve

month

“durational

As to the plaintiff's claims that she suffered from

lupus and Jaccoud’s arthritis, the ALJ stated that the record did
not reflect that she had been diagnosed with these impairments.
(R. at 13). The ALJ found that the plaintiff's depression was not
a severe medical impairment.
At step three, the ALJ found that the plaintiff did not have
an

impairment,

either

alone

or

in

combination,

that

met

or

medically equaled one of the listed impairments in 20 C.F.R. Part
404, Subpart P, App’x 1.

(R. at 15.)

In particular, the ALJ

considered listing 14.09, inflammatory arthritis, and observed
that no treating or examining physician had provided any opinion
or suggested any findings to demonstrate that the severity of the
plaintiff’s impairment met or medically equaled the criterial of
this or any other listed impairment. (Id.)
The ALJ next determined that the plaintiff had the residual

4

functional capacity ("RFC")3 to perform medium work4 as defined in
20 C.F.R. § 404.1567(c) and § 416.967(c), except that she can
engage in frequent handling and fingering with the bilateral upper
extremities. (Id.)

The ALJ concluded that the plaintiff was

capable of performing her past relevant work as a warehouse worker
and a child care monitor. (R. at 17-19.) The ALJ also made
"alternative findings for step five to the sequential evaluation
process.” (R. at 18-19).
plaintiff’s

age,

Specifically, she found that, given the

education,

work

experience,

and

residual

functional capacity, there are other jobs that exist in significant
numbers in the national economy that the plaintiff can perform.
Accordingly, the ALJ concluded that the plaintiff was not disabled.

3Residual

functional capacity ("RFC") is an assessment of "the
claimant's ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis. It is the most [the claimant] can still do despite [his or
her] limitations." 20 C.F.R. § 404.1545(a)(1).
4Medium

work "involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to
25 pounds." 20 C.F.R. §§ 404.1567(c); 416.967(c). "A full range
of medium work requires standing or walking, off and on, for a
total of approximately 6 hours in an 8–hour workday in order to
meet the requirements of frequent lifting or carrying objects
weighing up to 25 pounds. . . . . The considerable lifting required
for the full range of medium work usually requires frequent
bending-stooping [ ]. Flexibility of the knees as well as the torso
is important for this activity[.] ... In most medium jobs, being
on one's feet for most of the workday is critical." Staggers v.
Colvin, No. 3:14CV00717(SALM), 2015 WL 4751108, at *3–4 (D. Conn.
June 17, 2015) (quoting SSR 83–10, 1983 WL 31251, at *6 (S.S.A.
Jan. 1, 1983)).
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V.

Discussion
The

plaintiff

argues

that

the

ALJ

erred

in

failing

to

adequately develop the record because she did not obtain medical
source statements regarding her functional limitations to support
her RFC determination.
In opposition, the Commissioner asserts that remand is not
required because plaintiff's counsel should have provided any
additional

evidence

and

in

any

event,

the

record

contains

sufficient evidence from which the ALJ could assess the plaintiff’s
residual functional capacity.
An

ALJ

in

a

social

security

benefits

hearing

has

an

affirmative obligation to develop the record adequately. See Rosa
v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).

The "non-adversarial

nature of social security benefits proceedings dictates that the
obligation exists even when . . . the claimant is represented by
counsel."

Delgado

v.

Berryhill,

No.

3:17CV54(JCH),

2018

WL

1316198, at *6 (D. Conn. Mar. 14, 2018) (quotation marks and
citations omitted).

See 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' . . .
.")

An ALJ may not merely rely on raw data from the treating

physicians.

Downes v. Colvin, No. 14-CV-7147 (JLC), 2015 WL

4481088, at *15 (S.D.N.Y. July 22, 2015) (noting that raw data
6

contained

in

notes

of

treating

physicians

is

not

sufficient

evidence to support a claimant’s RFC determination). "[A]n ALJ is
not qualified to assess a claimant's RFC on the basis of bare
medical findings, and as a result an ALJ's determination of RFC
without

a

medical

advisor's

assessment

is

not

supported

by

substantial evidence." Guarino v. Colvin, No. 1:14CV00598(MAT),
2016 WL 690818, at *2 (W.D.N.Y. Feb. 22, 2016). Record evidence is
only sufficient without medical source statements if the notes of
the

treating

physicians

express

his

or

her

views

as

to

the

plaintiff’s residual functional capacity or assess a claimant's
limitations.

See Tankisi v. Comm'r of Soc. Sec., 521 F. App'x 29,

34 (2d Cir. 2013) (declining to remand for failure to obtain
medical source opinions from treating physicians because their
comprehensive notes assess the plaintiff’s limitations).

The need

to obtain medical source statements from a treating physician is
particularly acute because the regulations give the opinions of
treating physicians controlling weight so long as they are well
supported
diagnostic
substantial

by

medically

techniques
evidence

acceptable

and
in

the

are

not

record.

clinical

and

inconsistent
DeLeon

v.

laboratory
with

other

Colvin,

No.

3:15CV1106(JCH), 2016 WL 3211419, at *3 (D. Conn. June 6, 2016);
see also Lesterhuis v. Colvin, 805 F.3d 83, 88 (2d. Cir. 2015).
As indicated, the ALJ found that the plaintiff was capable of
7

frequently lifting and carrying up to 25 pounds.

However, the

medical record does not contain any clear and useful assessment
from

any

examining

medical

source

regarding

the

plaintiff’s

functional limitations or how those limitations affected her workrelated abilities on a function by function basis.

Hilsdorf v.

Comm’r Soc. Serv., 724 F. Supp.2d 330, 344 (E.D.N.Y. 2010); cf.
Hernandez v. Comm’r Soc. Sec. No. 13-cv-959 (GLS/ESH), 2015 W.L.
275819, at *2 (N.D.N.Y Jan. 22, 2015).

On this record, the ALJ

had a non-delegable duty to develop the record by obtaining such
opinion evidence and remand is warranted.

See, e.g., Wallace v.

Berryhill, No. 3:17CV672(RMS), 2018 WL 4253174, at *19 (D. Conn.
Sept. 6, 2018)("the record cannot be considered adequate to permit
an informed finding by the ALJ of the plaintiff's RFC, and remand
is warranted" where the record "do[es] not include assessments of
the plaintiff’s limitations from a treating physician"); Delgado
v. Berryhill, No. 3:17CV54(JCH), 2018 WL 1316198, at *10 (D. Conn.
Mar. 14, 2018)("the absence of a complete and reliable functional
assessment of [plaintiff's] physical limitations is an obvious gap
warranting remand").5
VI.

Conclusion
For these reasons, the plaintiff's motion to reverse and/or

5In

light of the foregoing, the court need not discuss the
merits of the plaintiff’s other arguments.
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remand the Commissioner's decision (doc. #19) is granted and the
defendant's motion to affirm the decision of the Commissioner (doc.
#20) is denied.
SO ORDERED at Hartford, Connecticut this 29th day of March,
2019.
_________/s/_________________
Donna F. Martinez
United States Magistrate Judge

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