Henderson v. Berryhill
Filing
25
ORDER: For the reasons set forth in the attached document, Plaintiff's Motion for Judgment on the Pleadings (Doc. No. 16 ) is hereby GRANTED, and Defendant's Motion for an Order Affirming the Decision of the Commissioner (Doc. No. 23 ) is hereby DENIED. This case is hereby REMANDED to the Commissioner for proceedings consistent with the order. The Clerk shall close this case. Signed by Judge Alvin W. Thompson on 9/18/18. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL LOUIS HENDERSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
:
:
:
: Civil No. 3:17CV636 (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.
“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.C § 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.
See Johnson
v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
The plaintiff argues, inter alia, that the ALJ failed to
properly weigh medical opinion evidence.
Pl.’s Mem. to Reverse
(Doc. No. 17-1) at 1.
The defendant argues that substantial evidence supports the
ALJ’s Decision and the Decision is without legal error.
See
Def.’s Mem. to Affirm (Doc. No. 23-1) at 2.
The court concludes that, at minimum, the ALJ failed to
follow the treating physician rule when weighing the opinions of
the plaintiff’s treating physicians, Dr. Tapas Bandypadhyay and
Dr. Sheldon Kafer, by failing to analyze all of the required
factors set forth in 20 C.F.R. § 404.1527(c) and by failing to
develop the record by making every reasonable effort to recontact the treating pulmonary specialist to resolve
inconsistencies and ambiguities.
This, standing alone, warrants
remand, at which time the remaining issues should also be
addressed.
“[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
2
record.’”
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
(quoting 20 C.F.R. § 404.1527(d)(2)).
“[I]f controlling weight is not given to the opinions of
the treating physician, the ALJ . . . 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)).
These 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).
The ALJ’s explanation should be supported by the evidence
and be specific enough to make clear to the claimant and any
subsequent reviewers the reasons and the weight given.
3
See 20
C.F.R. § 404.1527(f)(2); SSR 96-2p (applicable but rescinded
March 27, 2017, after the date of the ALJ’s decision).
In determining the amount of weight to give to a medical
opinion, the ALJ must consider all of the factors set forth in
§ 404.1527(c): 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).
[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).
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
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).
4
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)(emphasis added)(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 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
5
agency's determination.”
Shinseki v. Sanders, 556 U.S. 396, 409
(2009).
The ALJ’s Decision states with respect to treating
physicians Dr. Tapas Bandypadhyay and Dr. Sheldon Kafer:
As for the opinion evidence, all opinions were carefully
considered and weighed.
. . .
Dr. Bandypadhyay completed a pulmonary impairment
questionnaire on September 23, 2015 (Ex. 11F, 12F).
Dr. Bandypadhyay indicated that the claimant had
sarcoidosis and obstructive sleep apnea (Id. at 1 ).
He opined that the claimant's ongoing impairments
were expected to last at least 12 months (Id.). Dr.
Bandypadhyay
indicated that
the
claimant could
perform his work in a seated position for two hours
and in a standing and/or walking position for one
hour (Id. at 3). He opined that the claimant could
occasionally lift and/or carry five to ten pounds
(Ex. 12F at 4). Dr. Bandypadhyay's opinion is given
little weight, as it is inconsistent with the
treatment notes, which indicated that the claimant's
cough had improved through treatment and his lungs
were consistently clear (See Ex. 1F, 8F).
There
were questions as to whether the claimant had
sarcoidosis or another granulomatous disease but the
claimant's lymph nodes were normal, as was his skin
(See Ex. 1F).
Treatment notes from December of
2014 indicated that the claimant's questionable
diagnosis of granulomatous lung disease was unlikely
to be malignant (See Ex. 8F). The claimant reported
experiencing sleep apnea in March of 2013 (See Ex.
1F).
By June of 2013, the claimant was doing well
overall and that his AHI was normal (See [i]d.). In
August of 20I3, the claimant reported that he had no
snoring, shortness of breath, coughing, or daytime
somnolence (See [i]d.).
Sheldon Kafer, M.D., a primary
completed a disability impairment
6
care physician,
questionnaire on
December 22, 2014 (Ex. 9F, 10F).
Dr. Kafer opined
that the claimant's ongoing impairment would be
expected to last at least 12 months (Ex. 9F at 1, 10F
at 1). He indicated that the claimant could perform
a job for two hours in a seated position during a
normal workday day and for one hour while standing
and/or walking (Id. at 3).
Dr. [Kafer] opined that
the claimant could only occasionally lift and/or
carry five to ten pounds (Id.).
He indicated that
the claimant could only do occasional grasping, do
fine manipulations, and reach with either upper
extremity, except for right-handed grasping, which
was frequent (Id. at 4).
Dr. [Kafer] opined that
the claimant's symptoms would likely increase in a
work environment and that he would occasionally
experience symptoms severe enough to interfere with
work (Id.).
He indicated that the claimant would
need to take unscheduled breaks every three hours for
30 minutes (Id.).
Dr. [Kafer] opined that the
claimant would be absent more than three times a
month and that the claimant suffered from anxiety,
which
contributed
to
the
claimant's
functional
limitations (Ex. 10F at 5).
Dr. Kafer's opinion is given little weight, as it is
inconsistent with the treatment notes, which indicated
that the claimant's
cough had improved through
treatment and his lungs were consistently clear (See
Ex. 1F, 8F). There were questions as to whether the
claimant had sarcoidosis or another granulomatous
disease but the claimant's lymph nodes were normal,
as was his skin (See Ex. 1F).
Treatment notes from
December
of
2014
indicated that
the
claimant
questionable diagnosis of granulomatous lung disease
was unlikely to be malignant (See Ex. 8F). The
claimant reported experiencing sleep apnea in March
of 2013 (See Ex. 1F). By June of 2013, the claimant
was doing well overall and that his AHI was normal
(See [i]d.). In August of 2013, the claimant reported
that he had no snoring, shortness of breath, coughing,
or daytime somnolence (See [i]d.).
The treatment
notes also showed that the claimant was alert,
nontoxic, in no acute distress (See Ex. 1F, 8F).
7
R. at 34-35 (emphasis added).
In places other than the section where treating source
opinions are addressed, the ALJ’s Decision states the following
regarding Dr. Bandyopadhyay’s treatment notes:
Treatment notes from
Tapas
Bandyopadhyay,
M.D., who
specializes in pulmonology, on March 27, 2013, indicated
that the claimant was complaining of snoring (Ex. lF at
28). Dr. Bandyopadhyay noted that the claimant's cough had
improved through medication and that he had no dyspnea,
wheezing, or chest pain (Id.). On physical examination, he
noted that the claimant was alert and in no acute distress
(Id. at 29).
Dr. Bandyopadhyay observed that the
claimant's throat had oropharyngeal crowding but that his
lymph nodes and lungs were normal (Id.). He indicated that
the claimant had obstructive sleep apnea and that he
discussed the various treatment options with the claimant
(Id.). On June 12, 2013, Dr. Bandyopadhyay noted that the
claimant was doing well overall and that the claimant's AHI
was normal in regards to his obstructive sleep apnea (Id.
at 11).
. . .
Treatment notes from Dr. Bandyopadhyay on August 21, 2013,
indicated that the claimant had no snoring, shortness of
breath, coughing, or daytime somnolence (Ex. 1F at 4). He
noted that the claimant was doing well overall and that his
cough
had
improved
markedly
(Id.).
On
physical
examination, Dr. Bandyopadhyay indicated that the claimant
was alert and in no acute distress and had normal lung
functioning (Id. at 5).
He noted there was a question as
to
whether the claimant had sarcoidosis or another
granulomatous disease, but the claimant's lymph nodes and
skin were normal (Id.).
Treatment notes from Dr. Bandyopadhyay on March 4, 2014,
indicated that the claimant did not show up for his
appointment, despite receiving a reminder telephone call
(Ex. 1F at 3). Emergency room notes [from] Beverly J.
Carolan, M.D., on August 29, 2014, indicated that the
claimant was complaining of hiccups that had lasted for two
days but had resolved while heading to the hospital (Ex. 6F
at 1). Dr. Carolan noted that the claimant also complained
8
of previous chest wall muscle pain, which was due to him
hiccupping but had stopped (Id. at 2).
On physical
examination, she noted that the claimant was alert,
nontoxic, and in acute distress (Id.).
Dr. Carolan
indicated that the claimant was discharged home in stable
condition (Id. at 3).
A chest x-ray from Stephen Zink,
M.D., a radiologist, on November 25, 2014, indicated that
the claimant's chest appeared normal and that there were no
pulmonary nodules (Ex. 7F at 8).
Treatment notes from Dr. Bandyopadhyay on December 23,
2014, indicated that the claimant had no complaints of
snoring,
shortness
of
breath,
coughing,
or
daytime
somnolence (Ex. 8F at 1).
He indicated that the claimant
was doing well since his last visit and that he had no
coughing or dyspnea (Id.).
On physical examination, Dr.
Bandyopadhyay noted that the claimant was alert and in no
acute distress (Id. at 2). He observed that the claimant's
lymph nodes and lungs were both normal (Id.).
Dr.
Bandyopadhyay
indicated
that
the
claimant
had
a
questionable diagnosis of granulomatous lung disease and
that malignancy of this seemed unlikely (Id.).
R. at 32.
However, a review of the cited exhibits and the record as a
whole raises questions as to the accuracy of the summary in the
Decision.
As an initial matter, the ALJ’s Decision states nothing
further about Dr. Kafer’s treatment notes, although there are
treatment notes from May 28, 2015 that (although largely
illegible) clearly make reference to sarcoidosis, as well as the
record from an appointment on March 15, 2016 that lists one of
the plaintiff’s problems as “pulmonary sarcoidosis”.
R. at 50.
Also, on March 6, 2013 Dr. Bandypadhyay ordered a sleep
study:
9
The patient had absent both delta and REM sleep.
Respiratory events were frequent with significant
worsening in the supine position. The arousal index
was elevated at 19 per hour. Almost all arousals were
secondary to respiratory events. The apnea/hypopnea
index for total sleep time in this portion of the
sleep study was significantly elevated at 29 per hour
and in the supine position was 70 per hour.
Oxygen
desaturation to a low of 78% was noted.
Ex. 1F/83 at R. 525.
Conclusions included “Severe
obstructive sleep apnea with severe oxygen desaturation.”
Id.
The report from an April 16, 2013 hematology and oncology
consultation was as follows:
HISTORY OF PRESENT ILLNESS:
The patient is a 60-year-old
gentleman, who presented to Saint Francis Hospital with
shortness of breath, coughing, hematemesis and hemoptysis.
The patient has a history of peptic ulcer disease and
worsening shortness of breath over the course of 2 or 3
weeks. The patient, however, has been coughing for years
according to his significant other; anywhere from 5 to 10
years.
She has encouraged him to have a definitive
radiographic evaluation of this cough, but he has only had
plain films, which were negative.
The patient had
apparently an episode of coffee-ground emesis and has been
seen by Gastroenterology; however, EGO is on hold at this
time secondary to other issues, which became evident when
he had a CAT scan of the chest.
Unfortunately, that CAT
scan shows mediastinal adenopathy and multiple pulmonary
nodules.
The patient has a conglomerate of possible
neoplastic lymphadenopathy in the subcarinal region that
measures 4.4 cm.
He also has multiple small pulmonary
nodules, which are unclear as per their etiology, but could
possibly be neoplastic.
The patient has never smoked.
He does have a paralyzed vocal cord as well.
. . .
IMPRESSION:
Possible neoplastic process that could
represent either pulmonary metastases or primary
bronchogenic carcinoma. Patient has a paralyzed vocal
cord, which is worrisome for neoplastic involvement;
however, it is not entirely out of the question that
10
this
may
represent
another
process
such
as
sarcoidosis.
However, the most likely diagnosis is a
primary neoplastic process.
Ex. 1F/46-47 at R. 488-89.
In April of 2013, the defendant was hospitalized.
The
Discharge Summary dated April 18, 2013 noted:
HOSPITAL COURSE:
. . .
Acute [and] chronic cough with shortness of breath.
Patient was seen in consultation by Pulmonary Medicine as
well as Hematology/Oncology because patient had diagnostic
investigation as follows:
He had a CT of the neck with
contrast that showed multiple spiculated pulmonary nodules
and
prominent mediastinal
lymphadenopathy,
recommended
having CT of the chest as the malignancy could not be ruled
out.
There is an 8-mm nodule within the right thyroid
gland. Evaluation of the neck was otherwise unremarkable.
CT of the chest with contrast was done in April 15th,
subsequently after the neck, that showed multiple pulmonary
nodules in the right lung and diffuse adenopathy findings
consistent with metastatic disease.
One of the nodules
could represent a primary tumor. PET scan could be useful
for further evaluation.
Please note that the patient was
also seen in consultation by ENT Medicine in regards to his
cough and his wheezing complaints. Upon evaluation by all
consultants, the decision was to have a biopsy of one of
the nodules and Dr. Thayer from Cardiothoracic Surgery was
consulted.
Patient had a mediastinoscopy done on 04/17
/2013. The pathology results of which are still pending at
this time.
On final discharge, patient will need to
follow up with Pulmonary Medicine in the next week after
discharge.
The
working
diagnosis
at
this
time
is
sarcoidosis versus malignancy and we will follow up with
the pathology result after the patient is discharged.
Please note that the patient was also seen by ENT, who
agreed with the recommendations from Pulmonary Medicine
and Hematology/Oncology.
Ex. 1F/40-41 at R. 482-83.
11
A surgical pathology report with a surgery date of April 17,
2013 noted as to lymph node specimens:
In specimen #1 and specimen #2, sections show nodular
dense hyaline fibrosis.
The pathologic findings would be
compatible with an old hyalinized granuloma or granulomas. .
. The etiology of the old hyalinized granuloma or granulomas
is not entirely evident based on the histopatholgic findings
in these sections alone.
Possible etiologies are felt to
include, but not be limited to, infectious granuloma(s) and
sarcoid granuloma(s), among other possibilities.
Clinical
and imaging correlation should be considered.
No carcinoma or other evidence of malignancy is
identified in any of the sections examined from the present
specimen.
Ex. 1F/62 at R. 504.
Dr. Bandyopadhyay’s Progress Notes for a May 15, 2013
encounter state:
The PET/CT[1] scan demonstrated
metabolic activity in multiple lesions.
intense
abnormal
There was extensive metabolically active adenopathy
in the mediastinum including the paratracheal region, the
subcarinal area, the AP window region, a lower right
paraesophageal lesion and lesions adjacent to the aortic
knob. The maximum SUV in the mediastinum was 12.3 and the
largest lesion measured 3 cm. There was moderate abnormal
metabolic activity in both hila regions consistent with
tumor involvement.
There was intense metabolic activity in multiple
nodular lesions, mostly in the right lung but at least one
in the
left upper lobe. There was a lesion in the
superior segment of the right lower lobe which measured 1.6
cm with a maximum SUV of 4.1. Just lateral to the right
hilum was a 2.1 cm lesion with a maximum SUV of 5.1. There
were
multiple
additional
smaller
positive
nodules,
primarily in the right lung.
The results of the May 13, 2013 CT/PET scan skull base to mid-thigh
may be found at Ex. 1F/74-75 at R. 516-17.
1
12
There was abnormal metabolic activity in 2 right
axillary lymph nodes, the larger measuring 1.3 cm with a
maximum SUV of 2.7. There was intense uptake in 2 or 3
peripancreatic and periportal nodes in the right upper
quadrant. The largest measured 1.3 cm with a maximum SUV
of 4.6. There were positive left external iliac nodes and
abnormal nodes in the groin regions bilaterally.
There were focal bone lesions in the proximal left
humeral diaphysis and in the left intertrochanteric
region where the lesion measured 1.7 cm with a maximum SUV
of 3.1.
Impression:
There were a large number of metabolically active lesions
involving both lungs, primarily the right lung. One or more of
the lung lesions could represent a primary and the others
metastases. It is not possible to exclude the possibility that
they are all metastases.
There was very extensive mediastinal nodal involvement and
abnormal uptake in both hilar regions.
There were positive nodes in the right upper quadrant
retroperitoneally as well as in the left external iliac region
and in both groin regions.
There were 2 probable bone metastases, as noted.
Ex. 1F/18-19 at R. 460-61.
On May 31, 2013, the plaintiff saw Dr. Pazooki for a
“[c]ancer risk assessment”, and the medical record states:
Clinical Impression and Plan . . . .
He had biopsy of his bilateral lung nodules. Both biopsies
were negative for any malignancy such as granulomatous
disease like sarcoidosis.
His PET/CT as an outpatient
showed lighting up mediastinal nodes and some pulmonary
nodules. He had a bone scan in the hospital and CT of the
abdomen and pelvis.
None of those showed any lesion.
I
think he has sarcoidosis but we need to rule out any
malignancy in his case also. I will see him back in four
months with a repeat CT scan. He has been seen by Dr. John
Thayer as an outpatient at the end of April 2013 and he will
see him back again in July with another CT scan. If there is
13
any change in the size of the nodes, we might get another
biopsy or resection for definitive diagnosis.
Ex. 1F/53 at R. 495.
The report on a July 8, 2013 CT Chest Without Contrast
included the following:
There are numerous enlarged prevascular, paratracheal, and
subcarinal nodes that are nonspecific in appearance, the
largest subcarinal nodal lesion measures 2.9 cm in size.
The largest right paratracheal node lesion measures 2.5 cm
in size.
There are multiple nodules in both lungs mostly in the right
lung with a few scattered small nodules in the left lung.
The largest nodule measures 1.4 cc along the minor fissure
in the right upper lobe.
There is some peribronchial thickening and nodularity that may represent
small areas of peribronchial nodal disease in the right upper lobe along
central bronchi.
A single nodule in the apical segment of right lower lobe demonstrates some
internal cystic change, the nodule measures 14 mm in size. The largest
nodule in
the left lung is in the left lower lobe measuring 5 mm in size.
. . .
CONCLUSIONS:
Multiple pulmonary nodules and mediastinal adenopathy essentially
unchanged compared with prior study. Findings would be worrisome for a
malignant, atypical infectious process, or a primary immune mediated/
inflammatory process such as sarcoidosis. Histologic evaluation is
recommended.
Ex. 1F/72-73 at R. 514-515.
The contrast between what the ALJ emphasized when
explaining why the treating physician’s opinions were given
little weight and the additional information that is in the
record suggests that the Decision simply ignores evidence that
does not tend to support the ultimate conclusion instead of
14
considering the record as a whole.
To avoid remand an ALJ must
analyze all factors set forth in § 404.1527(c).
This includes
evidence in support of the opinions of Dr. Bandyopadhyay and Dr.
Kafer.
An ALJ cannot “highlight only evidence of plaintiff's
improvement . . . while neglecting the overall impact of the
medical record.”
Poczciwinski v. Colvin, 158 F. Supp. 3d 169,
176 (W.D.N.Y. 2016).
A selective recitation of the record that
leaves out evidence that could support a contrary conclusion
cannot be the basis for a finding that a decision is supported
by substantial evidence.
Also, an ALJ cannot reject an opinion without first
attempting to fill any clear gaps, to clarify any ambiguities,
and to resolve inconsistencies.
Here, the ALJ relied on
diagnoses ambiguity and apparent inconsistencies between the
severity noted in the impairment questionnaire and the
improvements noted in Dr. Bandyopadhyay’s treatment notes to
give less than controlling weight to his opinion as well as the
opinion of Dr. Kafer, which supports that of Dr. Bandyopadhyay.
The ALJ did not seek clarification or explanation from Dr.
Bandyopadhyay or Dr. Kafer, who might have been able to provide
a persuasive explanation supported by clinical findings.
It is
not readily apparent that improvement and non-malignancy
preclude a finding that a pulmonary impairment limits a
plaintiff’s ability to work 8 hours a day, 5 days a week.
15
It is
for treating physicians, and not the ALJ, to make this
determination, especially in a case such as this where there is
evidence supported by clinical findings that the plaintiff has
multiple conditions.
Neither
a
reviewing
judge
nor
the
Commissioner
is
“permitted to substitute his own expertise or view of the
medical proof for the treating physician's opinion,” Shaw,
221 F.3d at 134, or indeed for any “competent medical
opinion,” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.1998);
see id. (ALJ “is not free to set his own expertise against
that of a physician who [submitted an opinion to or]
testified before him” or to “engage[ ] in his own
evaluations of the medical findings” (internal quotation
marks omitted)).
Burgess, 537 F.3d at 131.
These errors are legally significant because the ALJ might
have weighed the opinions of the plaintiff’s treating physicians
differently, changing the outcome at Step Two and requiring the
full analysis of all five steps of the sequential disability
evaluation process.2
At Step Two, the ALJ must determine whether the claimant has a
medically determinable impairment that is “severe” or a combination of
impairments that is “severe”. See 20 C.F.R. § 416.921. To establish
a medically determinable impairment there must be objective medical
abnormalities based on medical signs or laboratory findings, including
appropriate medical test results. See 20 C.F.R. §§ 404.1528, 416.921.
Signs are anatomical or physiological abnormalities which can be
observed, medically described and evaluated apart from the plaintiff’s
statement of symptoms. See 20 C.F.R. 404.1528(b). An impairment is
considered “severe” if it “significantly limits the [plaintiff’s]
ability to do basic work activities.” 20 C.F.R. § 404.1520(c).
“Basic work activities” is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 404.1521(b). “Examples of
these include . . . [p]hysical functions such as walking, standing,
sitting . . . .” 20 C.F.R. § 404.1521(b)(1).
“[T]he standard for a finding of severity under Step Two of the
sequential analysis is de minimis and is intended only to screen out
2
16
On remand the ALJ should apply the correct legal standard
to the treating physicians’ opinions and review the parties’
arguments to address other issues as appropriate.
For the reasons set forth above, Plaintiff’s Motion for
Judgment on the Pleadings (Doc. No. 16) is hereby GRANTED, and
Defendant’s Motion for an Order Affirming the Decision of the
Commissioner (Doc. No. 23) is hereby DENIED.
This case is
hereby REMANDED to the Commissioner for proceedings 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
undersigned.
The Clerk shall close this case.
It is so ordered.
the very weakest cases.” McIntyre v. Colvin, 758 F.3d 146, 151 (2d
Cir. 2014). See also Parker-Grose v. Astrue, 462 F. App’x 16, 17 (2d
Cir. 2012) (citing Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995)
(citing Bowen v. Yuckert, 482 U.S. 136, 158 (1987) (O’Connor, J.,
concurring, joined by Stevens, J. (“‘Only those [plaintiffs] with
slight abnormalities that do not significantly limit any ‘basic work
activity’ can be denied benefits without undertaking th[e] vocational
analysis.’”)) (emphasis added).
“A determination that an impairment(s) is not severe requires a
careful evaluation of the medical findings which describe the
impairment(s) and an informed judgment about its [] limiting effects .
. . .” SSA 85-28. “Great care should be exercised in applying” this
concept, and [i]f an adjudicator is unable to determine clearly the
effects of an impairment . . . the sequential evaluation process
should not end” at Step Two. Id.
On remand, the ALJ should apply this standard when determining
the severity of the impairments at issue.
17
Dated this 18th day of September 2018, at Hartford,
Connecticut.
__
/s/AWT __
____
Alvin W. Thompson
United States District Judge
18
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