Wallace v. Commissioner of Social Security
Filing
31
RULING granting 21 Motion to Reverse the Decision of the Commissioner such that the matter is remanded for further proceedings consistent with this Ruling; denying 29 Motion to Affirm the Decision of the Commissioner. Signed by Judge Robert M. Spector on 9/6/2018. (Watson, M.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
------------------------------------------------------ x
:
JOHN K. WALLACE
:
:
V.
:
:
NANCY A. BERRYHILL,
:
ACTING COMMISSIONER OF
:
SOCIAL SECURITY1
:
:
------------------------------------------------------ x
3:17 CV 672 (RMS)
DATE: SEPT. 6, 2018
RULING ON THE PLAINTIFF’S MOTION TO REVERSE THE DECISION OF THE
COMMISSIONER AND ON THE DEFENDANT’S MOTION FOR AN ORDER AFFIRMING
THE DECISION OF THE COMMISSIONER
This action, filed under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeks
review of a final decision by the Commissioner of Social Security [“SSA”] denying the plaintiff
Disability Insurance benefits [“DIB”] and Supplemental Security Income benefits [“SSI”].
I.
ADMINISTRATIVE PROCEEDINGS
On or about December 6, 2010, the plaintiff filed an application for DIB and SSI benefits
claiming he has been disabled since January 15, 2008, due to manic depression and bipolar
disorder. (Certified Transcript of Administrative Proceedings, dated June 6, 2017 [“Tr.”] 344-56,
411). The plaintiff’s application was denied initially (Tr. 234-41; see Tr. 242-45) and upon
reconsideration. (Tr. 246-51). On January 19, 2012, the plaintiff requested a hearing before an
Administrative Law Judge [“ALJ”] (Tr. 252-58), and on November 14, 2012, a hearing was held
before ALJ Ronald J. Thomas, at which the plaintiff and the plaintiff’s mother testified. (Tr. 44-
1
On January 21, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security. The Federal
Vacancies Reform Act limits the time a position can be filled by an acting official, 5 U.S.C. 3349(b); accordingly, as
of November 17, 2017, Nancy Berryhill is serving as the Deputy Commissioner for Operations, performing the duties
and functions not reserved to the Commissioner of Social Security.
74). On December 27, 2012, ALJ Thomas issued an unfavorable decision denying the plaintiff’s
claims for benefits. (Tr. 206-28). On February 15, 2013, the plaintiff submitted a request for
review of the hearing decision (Tr. 433-34), and on March 28, 2014, the Appeals Council granted
the plaintiff’s request, vacating the December 27, 2012 decision, and remanding the matter for
subsequent proceedings.2 (Tr. 229-33).
A second hearing was held before ALJ Thomas on June 26, 2015, at which the plaintiff,
his treating physician, Dr. John Nowicki, and Howard Steinberg, a vocational expert, testified.
(Tr. 75-132). On October 27, 2015, ALJ Thomas issued an unfavorable decision denying the
plaintiff’s claim for benefits. (Tr. 9-43). The same day, the plaintiff requested review of the hearing
decision (Tr. 7), and, on February 24, 2017, the Appeals Council denied the plaintiff’s request for
review, thereby rendering the ALJ’s decision the final decision of the Commissioner. (Tr. 1-6).
On April 24, 2017, the plaintiff filed his complaint in this pending action (Doc. No. 1),3
and on June 26, 2017, the defendant filed her answer and administrative transcript, dated June 6,
2017. (Doc. No. 12). On July 12, 2017, the parties consented to the jurisdiction of a United States
Magistrate Judge; the case was transferred to Magistrate Judge Joan G. Margolis. (Doc. No. 17).
On January 8, 2018, the plaintiff filed his Motion to Reverse the Decision of the Commissioner
The Appeals Council noted that there was “no evidence from a vocational expert regarding the impact of the
claimant’s non-exertional limitations on the ability to perform jobs remaining in the national economy.” (Tr. 231).
Therefore, as the Appeals Council concluded, “[t]he record lacks substantial evidence to support the conclusion that
a significant number of jobs exist which the claimant can perform.” (Tr. 231). The case was remanded for the ALJ
to
[o]btain updated evidence concerning the claimant’s mental and/or physical impairments in order
to complete the administrative record in accordance with the regulatory standards regarding
consultative examinations and existing medical evidence (20 CFR 404.1512-1513 and 416.913).
The additional evidence may include, if warranted and available, a consultative examination and
medical source statements about the claimant can still do despite the impairments.
2
(Tr. 231).
3
On the same day, the plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (see Doc. No. 2), which the
Court granted.
2
(Doc. No. 21), and brief in support (Doc. No. 21-2 [“Pl.’s Mem.”]),4 and on April 6, 2018, the
defendant filed her Motion to Affirm (Doc. No. 29), and brief in support (Doc. No. 29-1 [“Def.’s
Mem.”]). On May 1, 2018, this case was reassigned to this Magistrate Judge. (Doc. No. 30).
For the reasons stated below, the plaintiff's Motion to Reverse the Decision of the
Commissioner (Doc. No. 21) is granted such that the matter is remanded for further proceedings
consistent with this Ruling, and the defendant’s Motion to Affirm (Doc. No. 29) is denied.
II.
FACTUAL BACKGROUND
A.
HEARING TESTIMONY
On the date of his second hearing, the plaintiff was fifty years old and living with his
mother. (Tr. 79). The plaintiff has lived with his mother since he moved back to Connecticut from
Los Angeles in 2009. (Tr. 80). The plaintiff has an MBA from DePaul University in Chicago and
worked as an accountant in Los Angeles before he stopped working in 2007.5 (Tr. 81-82). The
plaintiff testified that his last long-term employment ended in 2006 when he was laid off; he started
having panic attacks and was “so stressed out it was ridiculous.” (Tr. 97). However, it was not
until January 2008 that the plaintiff “realized [he] had a problem[]” because he was “in denial
before that.” (Tr. 98). In 2010, the plaintiff was treated for cardiac heart failure (Tr. 99), after
which he suffered from “severe depression[.]” (Tr. 100). At the time of the hearing, the plaintiff
reported that he had been sober for the past year (Tr. 84), and that he attended Alcoholics
Anonymous meetings three times a week. (Tr. 85). According to the plaintiff, he suffers from
In addition to copies of case law, attached to the plaintiff’s Motion is a Statement of Material Facts which the
defendant moved to strike on February 13, 2018. (Doc. No. 23; see Doc. Nos. 24-25). On March 8, 2018, the Court
granted the Motion to Strike (Doc. No. 27), and on March 28, 2018, the plaintiff filed a Joint Statement of Material
Facts. (Doc. No. 28).
4
5
The plaintiff worked for Warner Music from 1999-2006 and for Dick Clark Productions for a short time in 2007.
(Tr. 368, 376).
3
panic attacks, which are “just as bad[]” now that he is sober, even with “the [fourteen] pills” he
takes each day. (Tr. 86).
The plaintiff testified that he does aqua classes three times a week and walks his dog “about
a block” to keep his “heart going.” (Tr. 87, 89). According to the plaintiff, he is “bad” with
hygiene. (Tr. 91). He makes simple meals and is not allowed to use the stove, and he gets “bored”
or loses interest when doing chores. (Tr. 91; see also Tr. 103 (mows the lawn in “pieces and
parts[]”)).
He drives to the gym and grocery store, but he always uses a GPS because
“[s]ometimes” he forgets where he is going. (Tr. 92). According to the plaintiff, he is “horrific
in groups . . . [; he is] afraid of them.” (Tr. 94). He does not answer his phone; he tries “to avoid
social interaction.” (Tr. 106). The plaintiff described his writing as “so horrific[,]” “like,
scribble[;]” he cannot complete tasks[;] he “screw[s] up with everything[,]” and his short-term
memory is “shot.” (Tr. 103-06).
Dr. John Nowicki, who is the plaintiff’s mother’s first cousin, testified that he has been
the plaintiff’s primary care physician since 2008. ( Tr. 109-10). Dr. Nowicki testified that the
plaintiff has marked depression that “worsened after his hospitalization in February 2010[]” and
“became bipolar.” ( Tr. 111). A c c o r d i n g t o D r . N o w i c k i , the plaintiff has frequent panic
attacks that affect his ability to function. (Tr. 111). As of result of his hospitalization in February
2010, during which he suffered from cerebral anoxia, he has suffered from a “decrease in his
cognitive function[],” and his IQ decreased by 40 points. (Tr. 111-14, 116). Additionally, Dr.
Nowicki opined that the plaintiff’s psychiatric treatment “seems to be somewhat successful, but
not fully successful[,]” as the plaintiff has “developed bipolar disorder” (Tr. 114), and he has
difficulty concentrating and “following through.” (Tr. 116). According to Dr. Nowicki, the
4
plaintiff has marked restrictions in activities of daily living, social functioning, and concentration,
persistence, or pace, and the plaintiff’s mental impairment meets Listing 12.03. (Tr. 118-19).
The vocational expert testified that a person of the plaintiff’s age, education, and work
experience who is limited to the light exertional level of work could occasionally bend and
balance, twist, climb, crawl, kneel, and squat; could sustain routine, simple, repetitive tasks not
requiring teamwork or working closely with the public; could engage in occasional interaction
with the public, supervisors, and coworkers; and could perform the following light, unskilled
jobs: office helper with approximately 207,000 jobs in the national economy; hotel
housekeeper with approximately 137,000 jobs in the national economy; and mail clerk with
approximately 122,000 jobs in the national economy. (Tr. 121-23).
B.
MEDICAL HISTORY6
On August 4, 2008, the plaintiff was admitted at California Pacific Medical Center after
presenting to the emergency room with reports of a seizure. (Tr. 755; see Tr. 755-57). He stated
that he previously had a seizure in March, but attributed it to anxiety and did not seek medical
attention. (Tr. 755). The plaintiff “actively denied any significant use of alcohol or any other
drugs throughout the course of his hospital stay[,]” and his partner, who accompanied him,
reported that the plaintiff was “clearly minimizing his alcohol use.” (Tr. 755). Testing in the
emergency room confirmed a blood alcohol level and the presence of cocaine. (Tr. 755). The
plaintiff’s seizure symptoms were diagnosed as “most consistent with alcohol withdrawal.” (Tr.
756). He was also diagnosed with alcoholic hepatitis and hypertension. (Tr. 756). The plaintiff
was treated for alcohol withdrawal, but despite ongoing symptoms, by August 8, he was
As stated above, the plaintiff’s alleged onset date of disability is January 15, 2008 (see Tr. 344); accordingly, although
the Court has reviewed the entire transcript, the Court will address only the medical records as they relate to the
plaintiff’s alleged period of disability. The plaintiff’s medical history is drawn largely from the parties’ Joint
Stipulation of Facts. (Doc. No. 28).
6
5
discharged upon request, as he was not considered “a candidate for hold” given that he was
appropriately oriented. (Tr. 756). The plaintiff returned to the emergency room the next day for
readmission; the attending doctor noted that when the plaintiff left the hospital the day prior, he
“clearly went out and drank.” (Tr. 758-59). He was discharged with a diagnosis of alcohol
withdrawal, a prescription for Ativan, and a referral for inpatient detoxification. (Tr. 759).
Thereafter, the plaintiff was admitted for rehabilitation from September 10 to 24, 2008.
(Tr. 451-56). He was discharged with the following diagnoses: alcohol dependence, anxiety not
otherwise specified, and rule out panic disorder; he was prescribed medication for anxiety and
hypertension. (Tr. 451-53). The plaintiff also had elevated liver function tests, seizures, sleep
apnea, hypertension, and anemia. (Tr. 452). The plaintiff was directed to follow-up with a
psychiatrist within two weeks. (Tr. 452).7
On July 6, 2009, the plaintiff was treated at St. Vincent’s Medical Center after he “was
found down at the Bridgeport Train Station.” (Tr. 622, 1373-75; see generally Tr. 629-35 (normal
x-rays, CT chest scan, CT head scan, CT abdominal scan)). After treatment of abrasions, the
plaintiff was assessed as ready to be discharged “when he sobers up.” (Tr. 1374).
On August 31, 2009, the plaintiff was admitted for residential treatment for chemical
dependence relapse at Ocean Hills Recovery, where he was treated by Martin Pennington, Psy.D.
(Tr. 470-73; see Tr. 463).
Dr. Pennington, a psychologist, observed on a mental status
examination that the plaintiff was of high intelligence with an intact memory, without thought
disorder, and without delusions or hallucinations. (Tr. 470).
The only diagnosis that Dr.
Pennington noted was alcohol dependence. (Tr. 470).
7
About eight months later, on May 7, 2009, the plaintiff was seen at an urgent care clinic after sustaining a puncture
wound to his forearm from a metal fence. (Tr. 459-61, 1125-28).
6
The plaintiff met with Dr. Pennington on a weekly basis for the month of September,
starting on September 2, 2009. (Tr. 474).8 The plaintiff reported that, at that time, he was
“working on his C.P.A[,]” and that he worked for Warner Brother’s music “doing accounting and
finance” when he lived in Los Angeles. (Tr. 474). According to the plaintiff, he underwent
intensive outpatient treatment for alcohol dependence once before, for two weeks, following
which he “stayed sober for a couple of months and then started binging.” (Tr. 474). A mental
status examination was unremarkable, and the plaintiff was clean and appropriately dressed. (Tr.
474). He was cooperative; he had good eye contact and normal speech; his mood was happy; his
memory was intact; his insight was good; his judgment was fair; and, his thought process was
coherent. (Tr. 474). Dr. Pennington noted that the plaintiff had above average intelligence, and
good attention and concentration. (Tr. 474). The plaintiff’s goal was to “stop his binge drinking
and stop drinking completely so that he can truly live his life.” (Tr. 474). By September 28, 2009,
he was looking for a job and planning to return to California. (Tr. 469). He was discharged on
October 1, 2009, in good condition, but Dr. Pennington noted his concern that the plaintiff needed
thirty more days of treatment and had not fully accepted his alcoholism. (Tr. 463).
From February 26 to March 6, 2010, the plaintiff was admitted to Western Medical Center
in California. (See Tr. 477-571). The plaintiff presented with shortness of breath and heart
palpitations; he was diagnosed with bilateral pneumonia (Tr. 479 (“septic pneumonia”)), then with
cardiomegaly and cardiogenic shock. (Tr. 477). He was found to have major arterial blockages
that required stenting. (Tr. 481). The plaintiff reported a history of anxiety disorder, and was noted
to be “very anxious[]“ upon admission. (Tr. 481).
8
The record contains an identical note dated July 2, 2009, which, in context, appears to be a typo. (Tr. 465).
7
During his cardiology consult, Dr. Arthur Selvan noted that an echocardiogram “revealed
an enlarged left ventricle with severe generalized hypokinesis and markedly reduced indices of
systolic performance: Estimated ejection fraction approximately 18-20%.” (Tr. 484-85). Dr.
Selvan diagnosed “severe cardiomyopathy of unknown etiology with markedly diminished
indices of left ventricular systolic performance . . . . Shock syndrome: probably cardiogenic;
respiratory failure with bilateral infiltrates: probably congestive heart failure . . . .” (Tr. 485)
(emphasis omitted). He assessed the plaintiff’s prognosis as “[v]ery poor.” (Tr. 485). On
February 28, 2010, Dr. Selvan inserted a Swan-Ganz thermodilution catheter and arterial line, and
while hospitalized, the plaintiff underwent a catheterization and the insertion of stents. (Tr. 492,
494; see also Tr. 496-97).
During his hospitalization, the plaintiff was very anxious, had chronic essential tremors,
and was given medication for iron-deficiency due to anemia. (Tr. 477). In a psychiatric
consultation subsequent to his cardiac surgery, the plaintiff reported that he had “always been a
nervous, anxious guy,” that he did not “drink that much anymore,” and that he was “binge drinking
but . . . was still able to work 60 hours a week.” (Tr. 486). The plaintiff denied ever having a
psychiatric diagnosis or seeing a psychiatrist or psychologist other than for alcohol dependence,
and he noted that he has “always been very functional throughout his life despite the alcoholism.”
(Tr. 486-87). According to the plaintiff, he was “in between jobs secondary to the economy and
frequent moving back and forth between the East Coast and different cities on the West Coast.”
(Tr. 488). The plaintiff reported that he was currently drinking a few glasses of wine once or
twice a week (Tr. 486), although at other points during the admission, the plaintiff said that he
was drinking vodka. (Tr. 481, 490). The plaintiff stated that he had a brief period of panic attacks
driving or going over bridges, for which he took Xanax, but that “this resolved[,]”and although
8
the consulting psychiatrist advised the plaintiff that he could receive psychological follow-up
after discharge, the plaintiff saw “no need for psychiatric follow[-]up.” (Tr. 487-88).
The plaintiff subsequently returned to Connecticut and began treatment at Cardiac
Specialists, P.C., primarily under the care of Dr. Steven Kunkes. (See Tr. 678-87, 943-45).9 On
March 30, 2010, the plaintiff reported to Dr. Kunkes that he “now feels well – no [chest pain]”
and that epigastric discomfort, which he had experienced, was “now better.” (Tr. 678).
On June 14, 2010, the plaintiff presented to the emergency room for complaints of
palpitations and pulsing in his veins lasting one day. (Tr. 577-82, 699-700). The plaintiff denied
chest pain, shortness of breath, or nausea, but reported some lightheadedness. (Tr. 577, 699). He
smelled of alcohol and had a breath level reading of 0.34. (Tr. 577, 699). Emergency room
personnel noted that the “[plaintiff] appears to be an alcoholic[.] Mother tends to be confrontive
[sic] and [intrusive].” (Tr. 588). The plaintiff reported that he was not working “because he is
grieving the deaths of [two] friends.” (Tr. 588).
Upon examination, the cardiologist felt that there was no cardiac indication for an
admission (Tr. 573, 578, 1291, 129); the plaintiff was admitted, however, for alcohol
detoxification. (Tr. 572-74, 1290-93; see Tr. 589-608). He reported that he had been binge
drinking since college “to ‘self-medicate’ for his high anxiety level, which he has suffered since
childhood.” (Tr. 572). He also reported a long history of major depression, decreased appetite,
anhedonia, and substance abuse. (Tr. 572). The plaintiff was treated for alcohol withdrawal, given
9
As the parties agree, although the name of the doctor in these visits is not stated, for purposes of this recitation, the
visits at Cardiac Specialists will be regarded as having taken place with Dr. Kunkes. (See Tr. 678-87, 943-45; see Doc.
No. 28 at 5, n.4).
9
Lexapro for depression, and was discharged three days later with instructions to see APRN Robert
Krause for follow-up. (Tr. 573-74).10
The plaintiff was seen at Cardiac Specialists on June 21, 2010; the plaintiff’s coronary
artery disease was noted as “stable.” (Tr. 684). The plaintiff’s blood pressure was 80/60 sitting
and 70/60 standing; medications were ordered and the plaintiff was instructed to “take salt.” (Tr.
684). The following day, the plaintiff returned with complaints of esophageal discomfort and a
feeling of “pulsations” in the veins of his arm. (Tr. 683). In a letter dated the same day, Dr. Kunkes
informed Dr. Nowicki11 that the plaintiff’s “current problems” were anemia, abnormal liver tests
“which may be due to alcohol, and an elevated creatinine that may be due to dehydration.” (Tr.
751).
On August 4, 2010, the plaintiff presented to the emergency room for complaints of right
shoulder pain after he “ran into a door frame by accident.” (Tr. 640, 763, 1331; see Tr. 640-53,
763-68, 1131-36). He suffered a right shoulder fracture. (Tr. 642-44, 765-67).
The plaintiff was seen for an orthopedic consultation for the shoulder fracture by Dr. David
J. Martin on August 5, 2010; the plaintiff reported that he was “in fairly good health otherwise.”
(Tr. 663-64; see Tr. 675). Dr. Martin recommended surgery pending cardiology clearance. (Tr.
664; see Tr. 665). In a Cardiac Specialists visit on August 10, 2010 for surgical clearance, the
plaintiff smelled heavily of alcohol and had slurred speech. (Tr. 681). The plaintiff underwent the
right shoulder surgical procedure on August 18, 2010. (Tr. 636-38, 674-76, 760-62, 1347, 137172; see Tr. 666-73).
10
On January 10, 2011, APRN Krause completed an assessment of the plaintiff that is discussed in Section IV.C.
infra.
11
As discussed in Section II.A. supra, plaintiff has been treated by Dr. Nowicki since 2008. (See Tr. 938).
10
At his September 3, 2010 appointment with Cardiac Specialists, the plaintiff reported that
he felt well. (Tr. 680). Two months later, on November 12, 2010, the plaintiff reported to Dr.
Martin that he still had difficulty fully elevating his arm, but he was “trying to do a lot of things
including playing football and raking leaves.” (Tr. 669). Dr. Martin advised the plaintiff to be
patient, work daily on stretching, and “[n]o football.” (Tr. 669). On November 29, 2010, the
plaintiff told Dr. Martin that he fell over the weekend and landed on his lower back and right
elbow. (Tr. 670). Two weeks later, on December 13, 2010, the plaintiff reported that his back
felt better, and there was no mention of his right elbow. (Tr. 672). The plaintiff reported,
however, that he broke a rib while snowboarding a year ago and that recently, his rib pain was reaggravated. (Tr. 672). He also reported increased shoulder pain. (Tr. 672). Dr. Martin observed
that, on x-rays, the plaintiff’s shoulder looked healed, but recommended a computed tomography
scan of the shoulder to “make sure that we are not dealing with non-union.” (Tr. 672).
He recommended that the plaintiff restrict his activities. (Tr. 672). The plaintiff was seen on the
same day at Cardiac Specialists, where he reported that he stopped drinking alcohol. (Tr. 678).
On December 17, 2010, the plaintiff underwent imaging of his right shoulder which revealed
“[r]ight plueral effusion” for which “further investigation [was] warranted.” (Tr. 710, 732, 853).
When the plaintiff returned to Cardiac Specialists on January 17, 2011, he mentioned
being active in an exercise program, and that he felt better and was less depressed. (Tr. 724). On
February 9, 2011, the plaintiff was seen for a neurological consultation with Dr. Philip Barasch
for complaints of memory difficulties, most of which were brought to his attention by his mother,
who told him that he did not pay attention and did not remember tasks he needed to do. (Tr. 706).
His mother reported that the plaintiff had increased anger at home and that he had “not been the
same person that he was previously.” (Tr. 706). She reported that he was also drinking alcohol
11
too much, but the plaintiff denied this and said he only drank once a week. (Tr. 706). According
to his mother, the plaintiff was somewhat “disinhibited[,]” at times “delusional,” and that he had
not been telling her the “truth.” (Tr. 706). On examination, the plaintiff had intact language
function, attention span, recall and concentration, and during conversational speech, the plaintiff
“appeared quite tangential.” (Tr. 706). Dr. Barasch assessed the plaintiff as having “had a
behavioral change,” and it was unclear whether this represented a psychiatric disorder or “a
possible neurological problem such as frontotemporal dementia given that he has not been
working for at least the past five years for unclear reasons or alcohol abuse.” (Tr. 707). Dr. Barasch
performed an electroencephalography, which was normal. (Tr. 705). He recommended a
neuropsychological examination. (Tr. 707).
Dr. Martin observed on February 15, 2011, that the plaintiff was doing better and had no
pain. (Tr. 851). He advised the plaintiff to continue use of an Exogen stimulator and could resume
a strengthening program including pulleys, but not to play football or “contact sports obviously.”
(Tr. 851).
On March 31, 2011, the plaintiff presented to the emergency room with complaints of
ringing in the left ear for the past three weeks which became worse that night when he was
drinking alcohol. (Tr. 769, 1342; see Tr. 769-72, 1342-45). The plaintiff thought that he may have
been injured while “playing sports[.]” (Tr. 770). He denied significant alcohol intake or having a
drinking problem, but his mother and brother reported that he had been very intoxicated each day
for at least a week. (Tr. 770). The plaintiff’s mother reported that the plaintiff told her to kill him
and gave her a knife, and she demanded that he “be sent to detox because he is mentally
imbalanced.” (Tr. 770). The plaintiff did not want to go to detox, and when his mother continued
to demand admission, the plaintiff became angry and “got up and went straight to the door and
12
left, no unsteady gait, clear intent, very aware of his action. He was calm and cooperative during
his stay, was very clear in expressing his preferences. Mom was aggressive, somewhat belligerent
and threatening.” (Tr. 771). The plaintiff’s mother was advised that a person who was alert and
oriented could not be forced into detox, but she repeatedly stated that the plaintiff was unbalanced
and mentally unwell and should not be allowed to make his own decisions. (Tr. 771).
On April 7, 2011, the plaintiff presented for a neuropsychological evaluation with Dr.
Michelle Bobulinski. (Tr. 773-78).12 Dr. Bobulinski assessed the plaintiff as having “[m]ild
subcortical
neurocognitive
weaknesses,
in
the
setting
of
a significant
history of
cardiovascular disease, psychological and emotional difficulties, and alcohol dependence.”
(Tr. 773). A review of the plaintiff’s records indicated that he left his corporate finance or
accounting job to travel, but then could not find a job for the next one or two years. (Tr. 773). The
plaintiff reported that he was laid off. (Tr. 773). He also noted, “He and his family are concerned
that some of his personality changes may have resulted or been exacerbated by his cardiac
condition, as he reportedly was deprived of oxygen for two days when he had congestive heart
failure and was treated for pneumonia instead.” (Tr. 774). He admitted to using alcohol
increasingly after he stopped working, and his family observed that his personality was
significantly different and that he had been drinking alcohol in excess. (Tr. 774). He could go for
a week or longer without using alcohol, but would then be triggered by something and have
excessive use including periods of blacking out. (Tr. 774). The plaintiff reported that “[o]nce
every two months, approximately, he experiences symptoms of vertigo[.]” (Tr. 774). Over the
past year, the plaintiff had been independent in his daily living activities, however, he is “relatively
isolated.” (Tr. 774). The plaintiff was recovering from a shoulder injury, and hoped to resume
12
See note 23 infra.
13
regular exercise. (Tr. 774). He was not aware of any obvious cognitive changes, but reported that
his lifestyle changed so dramatically it was difficult for him to tell. (Tr. 774). He reported being
increasingly depressed due to missing his friends and former lifestyle, and not having a job. (Tr.
774). The plaintiff stated that finding a job was his top priority, but he was “feeling some
trepidation with respect to returning to work and question[ed] whether he [would] able to handle
the same pace and lifestyle as before. Reportedly, he enjoyed his work lifestyle, which also
included an intense 70+ hour work week, including socializing for business.” (Tr. 774). The
plaintiff reported a somewhat disturbed sleep routine, staying awake until four in the morning due
to some depression and some anxious ruminations. (Tr. 774).
Dr. Bobulinski noted the plaintiff’s tremor and that he had a mildly anxious and depressed
mood. (Tr. 775). The plaintiff recalled events with no apparent difficulty, and he had no
observable evidence of thought disorder or psychosis. (Tr. 775). Testing results showed overall
mild subcortical cognitive weaknesses, and Dr. Bobulinski noted that, given the plaintiff’s
estimated premorbid intellectual functioning, the current results “may actually represent[] a more
significant change or dampening of neurocognitive functioning.” (Tr. 776). The plaintiff’s selfreports of psychological functioning and personality showed a profile similar to individuals
indicating somatic complaints and behavioral dysfunction. (Tr. 776). Assuming that physical
origins of the plaintiff’s reported neurological and gastrointestinal symptoms could be ruled out,
the results suggested a potential somatoform disorder, although “alcohol/substance abuse also
remains a significant area of concern,” which further “increases risk to the patient’s cognition and
overall health and well-being, including vascular disease and potential progressive cognitive
decline.” (Tr. 776). The plaintiff admitted to getting drunk at least once a week, as well as taking
drugs or sleeping pills not prescribed by a doctor. (Tr. 776-77). Dr. Bobulinski had several
14
recommendations, including an MRI of the plaintiff’s brain, psychiatric evaluation, and
psychotherapy, but Dr. Bobulinski also noted that the plaintiff’s acting-out tendencies could result
in treatment noncompliance. (Tr. 778).
The plaintiff returned to Dr. Barasch on April 19, 2011. (Tr. 780-81). He stated that he
ceased drinking alcohol and had been applying for work. (Tr. 781). He reported an improved
memory and no major behavioral issues. (Tr. 781). The plaintiff’s mother, who was interviewed
separately, said that the plaintiff was “constantly lying” and that he continued to drink. (Tr. 781).
After reviewing Dr. Bobulinski’s evaluation, Dr. Barasch ordered an MRI which was done on
April 28, 2011; the results revealed mild cerebral atrophy. (Tr. 779, 782).
The plaintiff returned to Dr. Martin for his shoulder on April 27, 2011; he reported doing
really well, with no pain. (Tr. 852). Dr. Martin recommended that the plaintiff return in a year and
that he “can essentially do whatever he can tolerate.” (Tr. 852).
The plaintiff’s visits with Dr. Nowicki throughout 2011 focused on alcohol use (Tr. 93537), and in late May, the plaintiff mentioned that he was exercising four times a week. (Tr. 937).
On June 26, 2011, the plaintiff began treatment at the Pride Institute for “alcohol use, and
depression[]”(Tr. 787); his admitting diagnosis was alcohol dependence. (Tr. 803-04). He was
admitted for residential treatment until discharge on July 20, 2011. (Tr. 787-804). He reported
that he had been heavily binging on alcohol three times a week for the past six months. (Tr. 808;
see Tr. 794, 800). On July 2 and 6, his mood and affect were “neutral to positive” (Tr. 790-91),
and, in his mental health consultation on July 4, 2011, the plaintiff’s “[p]resenting [p]roblem” was
that he “can’t stop drinking.” (Tr. 792). On July 6, 2011, it was noted that his tremor was
improving as was his insight and judgment. (Tr. 790; see also Tr. 806 (July 13, 2011, plaintiff
reported tremor “is better”)). He also admitted to occasional cocaine use. (Tr. 792). When asked
15
if he had mental health concerns, the plaintiff stated that he had regrets about a former relationship.
(Tr. 792). His discharge diagnosis was alcohol dependence (Tr. 798; see also Tr. 793), although,
in the discharge summary, the plaintiff reported “symptoms of depression and panic attacks.” (Tr.
794).
On July 29, 2011, Dr. Kunkes informed Dr. Nowicki that the plaintiff had complaints of
fatigue and was taking three different medications of the same type, which were adjusted. (Tr.
942). The plaintiff returned to Cardiac Specialists on December 8, 2011, at which time he reported
that he was active, but not exercising. (Tr. 809). He complained of dizziness with vertigo and
vomiting. (Tr. 809). His blood pressure medications were adjusted. (Tr. 809). His coronary artery
disease was stable. (Tr. 809). On December 11, 2011, Dr. Kunkes wrote a letter to Dr. Nowicki
to inform him that the plaintiff “has been adjusting his own medications” and consequently had
relatively high blood pressure and elevated cholesterol, and his medications were being adjusted.
(Tr. 940).
On December 16, 2011, the plaintiff underwent a consultative evaluation with Bina
Roginsky, Psy.D. (Tr. 814-17). 13 The plaintiff’s mother reported that he had major changes in
his cognition after his cardiac event, which she described as resulting in loss of oxygen to the
brain. (Tr. 814). The plaintiff and his mother reported that he had not had any alcohol since he
attended rehabilitation sometime in the last year. (Tr. 814). Dr. Roginsky observed that the
plaintiff was detached and passive, many times was unable to provide details and frequently gave
contradictory and illogical answers. (Tr. 815). The plaintiff was “difficult to understand, and he
had trouble with speaking only English.” (Tr. 815). He often repeated words, took long pauses to
13
See note 23 infra.
16
find words, and was not able to express himself with appropriate detail. (Tr. 815). He did not
respond appropriately to many questions and had minimal spontaneous speech. (Tr. 815).
Dr. Roginsky administered cognitive testing, which she felt was a valid measure of the
plaintiff’s functioning, showing a full scale IQ of 47. (Tr. 815). She noted that a thorough
personality assessment could not be conducted due to the plaintiff’s difficulty answering
questions, but in separate interviews with the plaintiff and his mother, she learned that the plaintiff
had difficulty performing the most basic tasks. (Tr. 816). Attempts to redirect him or offer
guidance would result in arguments, slamming doors, destroying property, or yelling; he had a
limited social network and was very depressed and anxious. (Tr. 816). The plaintiff’s mother
reported that he threatened to hurt himself; the plaintiff denied this but also reported that he cut
himself in the past without specifying when or how often. (Tr. 817). The plaintiff reported that
he had “attempted to gain employment, and ha[d] gone on several job interviews[,]” but received
no offers. (Tr. 817). He reported that he was no longer able to drive as he would become confused
even in familiar places. (Tr. 817).
Dr. Roginsky opined that the plaintiff’s “overall cognitive
functioning was in the Extremely Low range, . . . [and his] Index Scores were all in the same
range, . . . showing minimal cognitive abilities and comprehension.” (Tr. 817). She noted
that the plaintiff “appeared to put forth effort at the onset of every task, and maintained his effort
on all items administered. However, confusion, frustration, and giving up quickly greatly
decreased his scores.” (Tr. 817). Dr. Roginsky assessed the plaintiff as having dementia not
otherwise specified and alcohol dependence by history. (Tr. 817).
From January 11 to February 23, 2012, the plaintiff underwent an intensive outpatient
program at Bridgeport Hospital on “a self referral for behavioral health and early recovery care.”
(Tr. 855; see Tr. 855-916; see also Tr. 918-34 (toxicology reports)). The plaintiff reported that
17
he had been in sober housing rehabilitation in Minnesota for five months, and that he was a binge
drinker with “last steady use [on] 12/31/11.” (Tr. 855). The Master Treatment Plan included
diagnoses of major depression disorder, recurrent psychotic features and alcohol dependence. (Tr.
868-69). Upon discharge, the plaintiff was referred to Fairfield Counseling Services. (Tr. 855).
The plaintiff continued to be treated at Cardiac Specialists, for management of his blood
pressure, cholesterol, and medication for his coronary artery disease. (Tr. 1009-21). On March 28,
2012, he reported that he was exercising forty-five minutes every day. (Tr. 1012). He reported no
shortness of breath with physical activity in aqua fitness, but that he did have shortness of breath
with stair climbing or bending to tie his shoes. (Tr. 1012).
On March 7, 2012, the plaintiff began sessions at Fairfield Counseling Services. (Tr. 95556, 982). The plaintiff wanted to “‘deal with’ his depression.” (Tr. 982). He also wanted to come
off medications, as he felt that he was “overmedicated.” (Tr. 959). He reported that he was sober
for two months, and that his longest period of abstinence was three months. (Tr. 960). The
plaintiff began attending counseling and medication management sessions for diagnoses of
bipolar disorder and alcohol abuse. (Tr. 951-65, 970-82, 985-88). The stated goal of treatment
was to engage in life, get a job, socialize, and maintain sobriety. (Tr. 957, 966, 968). In July 2012,
the plaintiff reported that he maintained sobriety since January and had been going on interviews
and engaged in several social functions with family and attended a class reunion. (Tr. 966).
On August 8, 2012, the plaintiff was seen at the emergency room after he “hit [his] head
against [a] dog’s mouth” while he was walking a dog as “he usually does as a volunteer [at] the
[H]umane [S]ociety.” (Tr. 1129-33).
On November 2, 2012, Dr. Kunkes wrote a letter to the plaintiff’s attorney stating that the
plaintiff had “a complex medical history including hypertension, congestive heart failure, and
18
valvular heart disease.” (Tr. 983). Dr. Kunkes wrote that, since his cardiac surgery in May 2010,
the plaintiff “has been plagued with problems including weight gain, abnormal live function tests,
inability to control cholesterol, and shortness of breath with exertion.” (Tr. 983). The plaintiff also
complained of anxiety, depression, inability to concentrate, and inability to finish tasks. (Tr. 983).
Dr. Kunkes noted that the plaintiff “has been treated for pneumonia as well[,] . . . there is a
question of prolonged hypoxia at the time of his myocardiac infarction in 2010[,]” and that the
plaintiff frequently naps. (Tr. 983). He also noted that the plaintiff “attempted to change his
lifestyle to a healthier one and has succeeded for the most part, but has persistent medical problems
that do not seem to be responding optimally to therapy.” (Tr. 983).
On November 13, 2012, Dr. Nowicki authored a letter to the plaintiff’s attorney stating
that the plaintiff had been his patient since September 2008 and that he has depression and acute
anxiety, tires “very easily,” sleeps three to four times a day, cannot concentrate, and has trouble
following through with projects. (Tr. 984).
At a session at Fairfield Counseling on November 15, 2012, the plaintiff reported that he
had been avoiding social interactions due to dissatisfaction with his weight. (Tr. 988). He was
feeling flat and unmotivated, and he was diagnosed with bipolar disorder. (Tr. 988).
At Cardiac Specialists on January 8, 2013, the plaintiff reported that he wanted to lose
weight, and had stopped all his psychiatric medications, but felt “mostly” okay. (Tr. 1033). At
Fairfield Counseling approximately a week later, the plaintiff reported that Lexapro helped with
depression but greatly reduced his motivation, which affected him socially and affected his
activity level. (Tr. 1047). He reported that he reduced the dosage himself and felt less empty and
more positive. (Tr. 1047).
19
On January 23, 2013, on referral from Dr. Joao Nascimento, the plaintiff was seen by Dr.
Erika A. Strohmayer at Endocrine Associates, LLC, for a consultation on a history of low
testosterone level of unknown etiology. (Tr. 1072). He complained of low energy, weight gain,
muscle weakness, disrupted sleep, some decreased vision, back, pain, depression, and fatigue. (Tr.
1072-73). The plaintiff reported that he used alcohol once or twice a month and that he did not
exercise. (Tr. 1073).
On March 4, 2013, Debra Tomaselli, MFT and James Alexander, MD of Fairfield
Counseling cosigned a Medical Source Statement of Ability to Do Work-Related Activities
(Mental) on behalf of the plaintiff in which they indicated that the plaintiff had been in treatment
from March 2012 to February 2013, and that, as of July 6, 2013, the plaintiff had marked
limitations in most areas of carrying out instructions as well in activities of daily living and social
functioning. (Tr. 1048-49). They noted that they were “unable” to complete the form prompts on
ability to interact with supervisors, coworkers, and the public. (Tr. 1049). Regarding alcohol or
substance abuse, they wrote “none reported by [c]lient.” (Tr. 1050). They did not identify any
medical or clinical findings in support of the responses. (Tr. 1048-50).
The plaintiff returned to Dr. Strohmayer on March 6, 2013 with complaints of decreased
energy and depression; he reported going to the gym “but not regularly.” (Tr. 1069). She assessed
the plaintiff with borderline diabetes mellitus, metabolic syndrome, and mild hypogonadism, and
she recommended weight loss. (Tr. 1071).
The plaintiff was seen from January to April 2013, at Cardiac Specialists for medication
adjustments, and weight management. (Tr. 1034-38). On April 17, 2013, the plaintiff saw Dr.
Arthur S. Turetsky for a pulmonary consultation on obstructive sleep apnea. (Tr. 1114-20). The
plaintiff had gained sixty pounds since his sleep study, and he reported that he swam three times
20
a week and used a treadmill twice a week. (Tr. 1114-15). He reported that he had a physical
disability from dyspnea and muscle weakness. (Tr. 1115). Dr. Turetsky opined that the plaintiff
has chronic obstructive pulmonary disease for which he prescribed Singulair. (Tr. 1116). On June
13, 2013, the plaintiff reported to Dr. Turetsky that he was using a continuous positive airway
pressure [“CPAP”] machine and was feeling much better. (Tr. 1111-13). Visits through October
21, 2013 showed no notable developments. (Tr. 1104-10).
In a treatment plan from Fairfield Counseling, dated April 16, 2013, it is noted that the
plaintiff had been consistent with therapy, although he was not always compliant with medication
management. (Tr. 1040-42). He still experienced social isolation and sometimes struggled with
self-esteem, but while he was sober, he had good relationships, an easy going attitude, was a better
listener, and had a willingness and readiness to face challenges. (Tr. 1040). He was swimming
three times a week, working out at the gym twice a week, and walking a dog three times daily.
(Tr. 1040). On May 16, 2013, the plaintiff’s goals were identified as sobriety and managing
symptoms of bipolar disorder. (Tr. 1043-44). On May 28, 2013, the plaintiff reported that he was
become more aggressive verbally with his mother and more depressed. (Tr. 1045). The plaintiff’s
sobriety was questioned because he presented with slurred and delayed speech. (Tr. 1045).
The plaintiff returned to Endocrine Associates on April 24, June 25, August 15, October
31, and December 12, 2013 with continued complaints of fatigue. (Tr. 1052-68, 1095-98). On
June 25, 2013, his weight was 267 pounds, and it was noted that the plaintiff’s testosterone was
“likely on low side due to obesity, [which the doctor] would not treat due to sleep apnea[]”; he
also had vitamin D deficiency and hypothyroidism. (Tr. 1062-65). On October 31, 2013, the
plaintiff mentioned that his energy was still low; he was walking the dog but had no energy for
the gym and went only twice a week. (Tr. 1052).
21
On January 27, 2014, the plaintiff presented to the Ahlbin Centers for Rehabilitation
Medicine for a physical therapy evaluation for complaints of low back pain causing difficulty with
activities like sitting, driving, lifting, and resuming his exercise routine. (Tr. 1146-53, 1167-82).
The plaintiff reported that he had been working out and trying to lose weight, but, over the past
few months, his chronic lower back pain and right shoulder pain had increased. (Tr. 1147, 1170).
The plaintiff attended physical therapy sessions through March 17, 2014. (Tr. 1154-1163, 11671242). By February 6, he reported that “he did some snowblower work” (Tr. 1157, 1190), and the
next day, he reported that he would be going to an aqua class and to lift weights at the gym. (Tr.
1197). On February 20, he mentioned that he was able to sit and drive for longer, but not able to
lift yet. (Tr. 1207). He had “been going to aqua zumba class.” (Tr. 1207). On February 26, the
plaintiff mentioned that he had not been able to go to the gym as much because of school work.
(Tr. 1214).
On March 18, 2014, the plaintiff was treated at the emergency room for alcohol withdrawal
and detoxification. (Tr. 1307-30, 1366-70). The plaintiff reported binge drinking every two weeks
(Tr. 1308, 1311) and also reported drinking one to three beverages daily. (Tr. 1327). The plaintiff
later described being sober for over a year until a month ago when he started drinking mostly on
weekends, and then, two days prior to his emergency room treatment, he drank half a liter of
vodka. (Tr. 1329, 1363). The plaintiff had observable tremors, but no focal neurological deficits.
(Tr. 1327). He was admitted for alcohol withdrawal until March 22, 2014 (Tr. 1362-65), and he
was referred for inpatient rehabilitation, but the plaintiff refused and “opted for outpatient rehab
while finishing school.” (Tr. 1364).
22
On September 10, 2014, the plaintiff saw Dr. Strohmayer for a testosterone injection. (Tr.
1090-93). He returned for another injection on October 1, 2014, but after reviewing laboratory
results, Dr. Strohmayer referred the plaintiff for a urology consultation. (Tr. 1086-89).
In October 2014, the plaintiff began sessions at Fairfield County Health & Wellness with
psychiatrist Dr. Carine Jean for depression and anxiety. (Tr. 1377-91). Initial sessions focused on
the plaintiff’s poor performance in his CPA classes due to what he described as poor memory
resulting from his loss of oxygen to his brain two years earlier. (Tr. 1384, 1386). The plaintiff
was seen again by Dr. Jean on November 5, 2014 (Tr. 1384-85); he reported poor concentration
and confusion and that he “feels dead at times.” (Tr. 1384). Dr. Jean’s diagnoses were bipolar
disorder (unspecified); panic disorder with agoraphobia; generalized anxiety disorder; and alcohol
dependence. (Tr. 1384).
A month later, on December 4, 2014, Dr. Jean noted that the plaintiff “has been
increasingly confused and forgetful and has been lost going to familiar places.” (Tr. 1386). The
plaintiff continued to report being distracted in school and not doing well as a result. (Tr. 1386).
He reported difficulty processing information and said that he understands things in the moment
but forgets them quickly; he was “distressed” by his symptoms. (Tr. 1386). Dr. Jean noted that
the plaintiff “is feeling moderately depressed. There is no evidence [of] hypomania or psychosis.
Daytime sedation, forgetfulness and decrease [in] executive function are concerning.” (Tr. 1386).
Dr. Jean adjusted his medication and referred him for a neuropsychological assessment. (Tr.
1387).
The plaintiff returned to Dr. Turetsky on January 26, 2015; he reporting that he ran out of
Singulair and that he was not using his CPAP machine. (Tr. 1101-03).
23
On February 5, 2015, the plaintiff underwent a neuropsychological examination with
psychologist Dr. Timothy Belliveau. (Tr. 1138-43).14 The plaintiff related that, about five years
earlier, he underwent cardiac surgery and believed he experienced a lack of oxygen at that time,
and then, when he was undergoing cardiac rehabilitation, he “began to get very severely
depressed.” (Tr. 1139). The plaintiff stated that he had not worked in about five years, had
difficulty with concentration and memory, had fatigue and slept a lot. (Tr. 1139). According to
the plaintiff, he “takes wine occasionally, . . . in moderation[,]” he has had a slight hand tremor
since he was five years old, and he has had a history of panic attacks since 2005. (Tr. 1140).
During the evaluation, Dr. Belliveau observed that the plaintiff had “no difficulty
maintaining alertness[,]” his speech was normal, and his thought processes were coherent and
goal directed. (Tr. 1140-41). He reported that his recent moods were “flat,” but somewhat better
on medication. (Tr. 1141). His affect appeared anxious and slightly restricted, but otherwise
appropriate. (Tr. 1141). Testing showed a full scale IQ of 98, and he had average attention and
concentration abilities. (Tr. 1141). Dr. Belliveau summarized that the plaintiff had average range
intellectual functioning. (Tr. 1142). There was no indication of a clinically significant memory
impairment. (Tr. 1142). The plaintiff had “cognitive inefficiency, characterized by slowness of
processing on tasks that require efficient thinking and/or efficient visuomotor integration.” (Tr.
1142). The plaintiff also had some motor deficits that could be related to his history of hand
tremors. (Tr. 1142). Dr. Belliveau assessed that the plaintiff had cognitive inefficiency that is often
associated with mood disorder, but the absence of memory impairment, while not definitive,
weighed against the presence of an anoxic brain injury. (Tr. 1142).
14
See also Section IV.C. infra.
24
The plaintiff returned to Dr. Jean on March 13, 2015 with complaints of worsening
depression, concentration, and energy level, and he stated that his short term memory was “gone.”
(Tr. 1388). He reported that he lacked interest in any activities and had sedation from his
medications, increased appetite, ongoing problems with sleep, anger and irritability, social
isolation, racing thoughts, and mood swings. (Tr. 1388). He slept during the day and preferred to
stay up at night to talk to his friends in Los Angeles. (Tr. 1388). The plaintiff reported that he had
not been productive, was not looking for a job, was taking a semester off from school, was waiting
for his disability hearing, and was volunteering once a week at the Humane Society, but was
“getting frustrated because he [was not] doing anything.” (Tr. 1388). However, he stated that when
he pushed himself he was able to do things. (Tr. 1388). The plaintiff said that he was drinking
one alcoholic beverage a month. (Tr. 1388). Dr. Jean opined that the plaintiff’s depression and
anxiety were getting better, and she advised him to “[c]onsider ECT [Electro-Convulsive Therapy]
and IOP [intensive outpatient treatment].” (Tr. 1388). On March 26, 2015, the plaintiff indicated
that his mood was better and that he was going to the gym daily. (Tr. 1389). He had a job interview
for a Director of Finance position at Disney in California. (Tr. 1389).
The plaintiff returned to Dr. Strohmayer on April 8, 2015; the plaintiff reported a recent
diagnosis of prostate cancer which would preclude testosterone replacement. (Tr. 1078-81). He
stated that he was not motivated and that he was “going to the gym but not working out as hard.”
(Tr. 1078).
On April 27, 2015, the plaintiff told Dr. Jean that he was feeling depressed because he was
not working and did not have a social life. (Tr. 1390). He was going to the gym three to four times
a week and meeting people there, and he planned to walk his dog three times a day. (Tr. 1390).
The plaintiff said that he had not been sad and had fair energy. (Tr. 1390). He last drank alcohol
25
two weeks ago and drank two mixed drinks twice a month. (Tr. 1390). He did not have panic
attacks in the last month, and he “tolerate[d] his medications but hasn’t been very compliant.” (Tr.
1390).
A month later, on May 27, 2015, the plaintiff reported feeling much better because he was
keeping himself busy with going to the gym three times a week, attending Alcoholics Anonymous
meetings four times a week, and doing yard work. (Tr. 1391). He was exercising, walked his dog
daily and went to swimming classes twice a week. (Tr. 1391). The plaintiff’s mother was very
concerned because his memory continued to decline. (Tr. 1391). He played Scrabble on the
Internet with friends and cooked at times. (Tr. 1391). Dr. Jean opined that the plaintiff’s
“impaired cognitive function and periods of confusion interfere with his ability to function in a
work place” and advised the plaintiff to write down information instead of committing it to
memory. (Tr. 1391). On June 22, 2015, Dr. Jean wrote a letter stating that the plaintiff had
diagnoses of bipolar disorder, unspecified generalized anxiety disorder, and panic disorder with
agoraphobia. (Tr. 1376).
C.
STATE AGENCY ASSESSMENTS
On May 9, 2011, State agency medical consultant Dr. Carol R. Honeychurch assessed that
the plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, stand or
walk for six hours, and sit for six hours in an eight-hour workday. (Tr. 143-44). He could
occasionally perform all postural activities except he could never climb ladders, ropes, or
scaffolds. (Tr. 143-44). The plaintiff needed to avoid concentrated exposure to extreme cold and
even moderate exposure to hazards, but he had no manipulative, communicative, or other
environmental limitations. (Tr. 144).
26
On May 12, 2011, State agency psychological consultant Dr. L. Cattanach assessed that
the plaintiff could maintain attention for two hours at a time and persist at simple tasks over an
eight-hour day and forty-hour workweek with normal supervision. (Tr. 145-46). The plaintiff had
no limitations in social interaction or adaptation. (Tr. 145-46).
On January 3, 2012, State agency psychological consultant Dr. Robert Decarli assessed
that the plaintiff was capable of simple work and concurred with Dr. Cattanach’s prior assessment.
(Tr. 181-82, 200-01). Dr. Decarli observed that the plaintiff’s consultative evaluation and IQ score
were not consistent with all the other data. (Tr. 181, 200).
The same day, State agency medical consultant Dr. Maria Lorenzo assessed that the
plaintiff could lift and carry fifty pounds occasionally and twenty-five pounds frequently, stand
or walk for six hours, and sit for six hours in an eight-hour workday. (Tr. 179-80, 198-99). Dr.
Lorenzo assessed that the plaintiff had no postural, manipulative, communicative, or
environmental limitations. (Tr. 180). Dr. Lorenzo noted that Dr. Honeychurch previously assessed
a light RFC, but that the evidence overall showed improved cardiac function. (Tr. 180).
On May 10, 2012, State agency psychiatric consultant Dr. Aroon Suansilppongse assessed
that, in the absence of drug addiction and alcoholism, the plaintiff would not have a severe mental
impairment. (Tr. 819-42).
On May 14, 2012, State agency medical consultant Dr. Joyce Goldsmith completed a
Physical Residual Functional Capacity Assessment of the plaintiff in which she opined that the
plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, stand or walk
for six hours, and sit for six hours in an eight-hour workday. (Tr. 844; see Tr. 843-49). He could
never climb ladders, ropes, or scaffolds; occasionally climb ramps or stairs and balance; and,
frequently perform stooping, kneeling, crouching, and crawling. (Tr. 846). He had no
27
manipulative, visual, or communicative limitations (Tr. 846), and he needed to avoid concentrated
exposure to extreme cold, limit himself to moderate exposure to hazards, and otherwise had no
environmental limitations. (Tr. 847). Similarly, on the same date, Stephen Abruzzo completed a
Case Analysis of the plaintiff in connection with his application for benefits in which he concluded
that the plaintiff has the physical capacity for a “[l]ight RFC[,]” and without drug abuse and
addiction, his psychiatric impairment is “non-severe.” (Tr. 850).
III.
STANDARD OF REVIEW
The scope of review of a Social Security disability determination involves two levels of
inquiry. First, the court must decide whether the Commissioner applied the correct legal principles
in making the determination. Second, the court must decide whether the determination is supported
by substantial evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted).
The court may “set aside the Commissioner’s determination that a claimant is not disabled only if
the factual findings are not supported by substantial evidence or if the decision is based on legal
error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks & citation
omitted); see also 42 U.S.C. § 405(g). Substantial evidence is evidence that a reasonable mind
would accept as adequate to support a conclusion; it is more than a “mere scintilla.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citation omitted); see Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998) (citation omitted). The substantial evidence rule also applies to inferences and
conclusions that are drawn from findings of fact. See Gonzalez v. Apfel, 23 F. Supp. 2d 179, 189
(D. Conn. 1998) (citation omitted); Rodriguez v. Califano, 431 F. Supp. 421, 423 (S.D.N.Y. 1977)
(citations omitted). However, the court may not decide facts, reweigh evidence, or substitute its
judgment for that of the Commissioner. See Dotson v. Shalala, 1 F.3d 571, 577 (7th Cir. 1993)
(citation omitted). Instead, the court must scrutinize the entire record to determine the
28
reasonableness of the ALJ’s factual findings. See id. Furthermore, the Commissioner’s findings
are conclusive if supported by substantial evidence and should be upheld even in those cases where
the reviewing court might have found otherwise. See 42 U.S.C. § 405(g); see also Beauvoir v.
Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (citation omitted); Eastman v. Barnhart, 241 F. Supp.
2d 160, 168 (D. Conn. 2003).
IV.
DISCUSSION
A.
THE ALJ’S DECISION15
Following the five step evaluation process,16 the ALJ found that the plaintiff’s date last
insured under the Social Security Act was December 31, 2012 (Tr. 15) and that he has not engaged
in substantial gainful activity from that date back through the January 15, 2008 onset date. (Tr. 15,
citing 20 C.F.R. §§ 404.1571 et seq., 416.920(b) and 416.971 et seq.). The ALJ concluded that
the plaintiff has the following severe combination of impairments: alcohol dependence,
cardiomyopathy, coronary artery disease, mild cerebral atrophy, depression, bipolar disorder, and
anxiety disorder. (Tr. 15-16, citing 20 C.F.R. §§ 404.1520(c) and 416.920(c)). He next found that
15
In his decision, the ALJ acknowledged that the Appeals Council remanded his initial decision on grounds that
“vocational expert testimony was required to gauge the effect of the claimant’s nonexertional limitations on his ability
to perform jobs remaining in the national economy.” (Tr. 12; see note 2 supra).
16
An ALJ determines disability using a five-step analysis. See 20 C.F.R. § 404.1520. First, the ALJ must determine
whether the claimant is currently working. See 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is currently employed,
the claim is denied. Id. If the claimant is not working, as a second step, the ALJ must make a finding as to the existence
of a severe mental or physical impairment; if none exists, the claim is also denied. See 20 C.F.R. § 404.1520(a)(4)(ii).
If the claimant is found to have a severe impairment, the third step is to compare the claimant’s impairment with those
in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Regulations [the “Listings”]. See 20 C.F.R. § 404.1520(a)(4)(iii);
Bowen v. Yuckert, 482 U.S. 137, 141 (1987); Balsamo, 142 F.3d at 79-80. If the claimant’s impairment meets or equals
one of the impairments in the Listings, the claimant is automatically considered disabled. See 20 C.F.R. §
404.1520(a)(4)(iii); see also Balsamo, 142 F.3d at 80. If the claimant’s impairment does not meet or equal one of the
listed impairments, as a fourth step, he will have to show that he cannot perform his former work. See 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant shows he cannot perform his former work, the burden shifts to the Commissioner
to show that the claimant can perform other gainful work. See Balsamo, 142 F.3d at 80 (citations omitted).
Accordingly, a claimant is entitled to receive disability benefits only if he shows he cannot perform his former
employment, and the Commissioner fails to show that the claimant can perform alternate gainful employment. See 20
C.F.R. § 404.1520(a)(4)(v); see also Balsamo, 142 F.3d at 80 (citations omitted).
29
the plaintiff does not have an impairment or combination of impairments that meet or medically
equal the severity of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16-18,
citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). The ALJ concluded, based on all of the plaintiff’s
impairments, “including substance abuse disorders, [that] the claimant has the residual functional
capacity [“RFC”] to perform light work” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)
“except he can occasionally bend, twist, squat, kneel, crawl, climb, and balance; is capable of
sustaining routine, simple, repetitive tasks that do not require teamwork or working closely with
the public; and can only have occasional interaction with the public, supervisors and co-workers.”
(Tr. 18-19).
The ALJ then concluded that if the plaintiff stopped the substance abuse, the plaintiff would
continue to have a severe impairment or combination or impairments, but would not have an
impairment or combination of impairments that meets or medically equals any of the impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 20-23, citing 20 C.F.R. §§ 404.1520(d)
and 416.920(d)). Additionally, the ALJ found that, if the plaintiff stopped the substance abuse, he
would have the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),
except that he “can occasionally bend, twist, squat, kneel, crouch, crawl, and balance; can sustain
routine, simple, repetitive tasks that do not require teamwork or working closely with the public;
and can occasionally interact with the general public, supervisors, and co-workers.” (Tr. 23-32).
The ALJ determined that, if the plaintiff stopped abusing alcohol, he would continue to be unable
to perform past relevant work, but there would be a significant number of jobs in the national
economy that he could perform. (Tr. 33-34, citing 20 C.F.R. §§ 404.1565, 416.965, 404.1560(c),
404.1566, 416.960(c) and 416.966). Accordingly, the ALJ held that the substance use disorder
was a contributing factor material to the determination of disability because the plaintiff would not
30
be disabled if he stopped the substance abuse; because the substance use disorder was a
contributing factor material to the determination of disability, the ALJ found that the claimant was
not disabled within the meaning of the Social Security Act from the alleged onset date through the
date of his decision. (Tr. 35, citing 20 C.F.R. §§ 404.1520(g), 404.1535, 416.920(g) and 416.935).
B.
THE PLAINTIFF’S CLAIMS
The plaintiff contends that the ALJ failed to develop the administrative record as there is
no medical source statement, and “none of the contemporaneous medical records from any of [the
plaintiff’s] treating physicians . . . address his actual functional limitations, and none address what
he can and cannot do on a function-by-function basis.” (Pl.’s Mem. at 1-11). The plaintiff also
argues that the treating physician rule was not followed (Pl.’s Mem. at 11-18); the ALJ’s alcohol
abuse analysis is deficient (Pl.’s Mem. at 18-21); the ALJ’s vocational findings are flawed (Pl.’s
Mem. at 21-29); and the ALJ’s combination of impairments evaluation was insufficient (Pl.’s
Mem. at 29-33).
The defendant argues that substantial evidence supports the ALJ’s RFC finding that, absent
alcohol abuse, the plaintiff would be able to perform a range of light work involving simple tasks
that did not require teamwork or working with the public, and only involved occasional interaction
with others (Def.’s Mem. at 6-8); the evidence was adequate for the ALJ to reach his decision
(Def.’s Mem.at 8-13); the ALJ reasonably weighed the opinion evidence (Def.’s Mem. at 13-18);
the ALJ properly considered the plaintiff’s alcohol use (Def.’s Mem. at 18-21); evidence probative
of the plaintiff’s functioning was reasonably considered (Def.’s Mem. at 21-24); and the ALJ
reasonably relied on the vocational expert’s testimony (Def.’s Mem. at 24-29).
31
C.
RFC ASSESSMENT AND CONSIDERATION OF TREATING PHYSICIANS’
OPINIONS
As stated above, the ALJ concluded that the plaintiff retained the RFC to perform light
work but with the limitations of “occasionally” bending, twisting, squatting, kneeling, crawling
climbing, and balancing; and he was “capable of sustaining routine, simple, repetitive tasks that
do not require teamwork or working closely with the public; and [could] only have occasional
interaction with the public, supervisors and co-workers.” (Tr. 18-19, 23-32). The ALJ found that
these limitations existed both when the plaintiff was abusing alcohol, and when he was not. (Tr.
20).
The plaintiff argues that the ALJ failed to develop the record in that “none of the
contemporaneous records from any of Mr. Wallace’s treating physicians in any meaningful way
address his actual functional limitations, and none address what he can and cannot do on a
function-by-function basis.” (Pl.’s Mem. at 6). Accordingly, the plaintiff contends that a remand
is warranted. (Pl.’s Mem. at 7).
The plaintiff bears the burden of demonstrating that his functional limitations preclude any
substantial gainful work.
See 42 U.S.C. §§ 423(d)(5)(A), 1382(a)(3)(H)(i); 20 C.F.R. §§
404.1512(c), 416.912(c) (“You must provide medical evidence showing that you have an
impairment(s) and how severe it is during the time you say you are disabled. You must provide
evidence, without redaction showing how your impairment(s) affects your functioning during the
time you say you are disabled . . . .”); 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3) (“In general,
you are responsible for providing the evidence we will use to make a finding about your residual
functional capacity.”); Social Security Ruling [“SSR”] 96-4p, 1996 WL 37187 at *2 (S.S.A. July
2, 1996).
32
As discussed at length above, and as the ALJ appropriately considered, the plaintiff’s
activities include going to the gym regularly, partaking in aqua classes, walking his dog, and
volunteering with the Humane Society. (See Tr. 92, 1040, 1069, 1052, 1078, 1129-33, 1157, 1190,
1197, 1214, 1388-91). Additionally, the plaintiff returned to school (Tr. 1214, 1354 (outpatient
rehab for substance abuse while attending school)), and, although he reported some difficulties
with his classwork and his ability to focus, he continued to take classes and apply for work. (See
Tr. 1386 (December 4, 2014, reported being distracted in school and not doing well as a result);
Tr. 1388-89 (reported taking the semester off; had interview at Director of Finance at Disney in
California)). Thus, this record is notable for the plaintiff’s level of daily activities, and the ALJ
appropriately considered these activities in his decision. 17 The ALJ’s responsibility to review the
record, however, does not end there.
In this case, the voluminous administrative transcript includes over seven years of detailed
medical records from which the ALJ could base his conclusion. “[T]he court must assess the
quality and scope of the opinions, not merely the quantity, in order to determine whether the record
is sufficiently complete.” Moreau v. Berryhill, No. 3:17-CV-00396 (JCH), 2018 WL 1316197, at
*8 (D. Conn. Mar. 14, 2018) (citing Sanchez v. Colvin, No 13 Civ. 6303(PAE), 2015 WL 736102,
The plaintiff also contends that the ALJ’s combination of impairments evaluation was insufficient as “[a] proper
consideration of Mr. Wallace’s obesity by its nature requires a combination of impairments analysis[.]” (Pl.’s Mem.
at 29-33). The plaintiff asserts that the ALJ “gives every indication of ignoring” the plaintiff’s morbid obesity. (Pl.’s
Mem. at 32). However, the ALJ did address the plaintiff’s obesity in his decision, concluding that his obesity was a
“medically determinable impairment[,]” but that “the evidence shows that the claimant regularly goes to the gym,
works out for 45 minutes, and engaged in exertional activity such as yard work[.]” (Tr. 16). Thus, the claimant’s
“excessive body weight appears to no more than minimally impair his ability to function.” (Tr. 16). This conclusion
is supported by the evidence in the record. (See Tr. 92, 1040, 1069, 1052, 1078, 1129-33, 1157, 1190, 1197, 1214,
1388-91). Additionally, although the plaintiff argues that his obesity may cause or contribute to his depression (Pl.’s
Mem. at 32), he offers no support in the record for this connection; in fact, the plaintiff repeatedly reported an
improvement in his mood when going to the gym regularly. (See, e.g., Tr. 1389 (his mood was better and he was going
to the gym daily), 1390 (reported that he has not been sad and has had fair energy when going to the gym three to four
times a week)).
17
33
at *6-7 (2d Cir. Feb. 20, 2015)). This admonition is particularly important given the Appeals
Council’s directive on remand.
When the Appeals Council remanded this case in March 2014, it held that “[t]he record
lack[ed] substantial evidence to support the conclusion that a significant number of jobs exist
which the claimant can perform.” (Tr. 231). Upon remand, the ALJ was to “[o]btain updated
evidence concerning the claimant’s mental and/or physical impairments in order to complete the
administrative record in accordance with the regulatory standards regarding consultative
examinations and existing medical evidence (20 CFR 404.1512-1513 and 416.913).” (Tr. 231).
The Appeals Council emphasized that “[t]he additional evidence may include, if warranted and
available, a consultative examination and medical source statements about what the claimant can
still do despite the impairments.” (Tr. 231). Bearing this in mind, the Court considers the ALJ’s
review of the underlying records as articulated in his decision. (Tr. 231).
In his decision, the ALJ repeatedly noted the absence of functional assessments by the
plaintiff’s treating providers and assigned the greatest weight to the functional assessment
provided by an APRN who has no underlying treatment records. As the ALJ acknowledges in his
decision, the treating physician rule requires that “the 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 wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.’” Burgess, 537 F.3d at 128,
(quoting 20 C.F.R. § 404.1527(d)(2) [now (c)(2)]); (see Tr. 26, 29-30). The ALJ’s treatment of the
opinions in this record contravenes this rule.
In his decision, the ALJ refers to APRN Robert Ware as the author of a January 11, 2011
assessment. (Tr. 29). Both counsel indicate that this record was authored by APRN Robert Krause
34
(Tr. 701-04), to whom the plaintiff was referred following his hospitalization for detox in June
2010. (See Tr. 573-74; Doc. No. 28 at 6-8).18 In his decision, the ALJ emphasizes that this APRN
saw the plaintiff every two months since June 2010, and that, since treatment began, the plaintiff
demonstrated significant improvement. (Tr. 701). APRN Krause identified the plaintiff’s
diagnoses as alcohol dependence and alcohol induced mood disorder. (Tr. 701). According to
APRN Krause, the plaintiff’s substance abuse was in early remission as the plaintiff had abstained
from alcohol for two months, and he had significantly improved in that period. (Tr. 701). APRN
Krause indicated that the plaintiff had “no” to “slight” problems in activities of daily living, “no”
problems with social interactions, and, except for a “slight” to “obvious” problem performing work
activity on a sustained basis, “no” problems in task performance. (Tr. 702-03). He opined that the
plaintiff had good judgment and insight when sober, but when “using” he was “dangerous[.]” (Tr.
702). He noted that “[t]oo much stress/frustration could easily lead to relaps[e.]” (Tr. 702)
(emphasis in original). As to social interactions, there are “no obvious issues if sober[,]” and as to
task performance, APRN Krause opined that the “patient appear[ed] as though [he] can complete
minimal work related tasks but not the sort of work he used to do[.]” (Tr. 703). According to
APRN Krause, although the plaintiff can handle his own benefits, Krause’s “concern is that he
would use [it on alcohol]. [Money] would be a trigger.” (Tr. 704).
The ALJ selectively chose to assign “great weight” to this opinion. The opinion, however,
is authored by an APRN, and, as the ALJ acknowledged, APRNs are not “treating sources[.]”
Selian, 708 F.3d at 417; SSR 06-3p, 2006 WL 2329939, at *1 (S.S.A. Aug. 9, 2006). As explained
in SSR 06-3p, opinions from APRNs, even though they do not qualify as “acceptable medical
sources[,]” are “important and should be evaluated on key issues such as impairment severity and
18
The Court has reviewed this assessment and refers to it herein; although the signature is not entirely clear, it appears
that the signatory is APRN Robert Krause.
35
functional effects, along with other relevant evidence in the file.” SSR 06-3p, 2006 WL 2329939,
*3. These “[o]pinions from ‘other medical sources’ may reflect the source’s judgment about some
of the same issues addressed in medical opinions from ‘acceptable medical sources,’ including
symptoms, diagnosis and prognosis, what the individual can still do despite the impairment(s), and
physical and mental restrictions.” Id. at *5. When analyzing these opinions, however, ALJs must
apply the same factors used to evaluate “acceptable medical sources,” such as the length of the
treating relationship, how frequently the source has seen the individual, the degree to which the
opinion is consistent with other evidence in the record, the degree to which the source presents
relevant evidence to support an opinion, how well the source explains the opinion, whether the
source has a specialty or area of expertise related to the individual’s impairments, and any other
factors that tend to support or refute the opinion. Id. at *4.
In this case, there are no underlying treatment records from APRN Krause in the record,
yet the ALJ relied on this opinion on grounds that the APRN treated the plaintiff “over a long
period of time[,]” concluding that the APRN’s opinion was “consistent with the longitudinal
record.” (Tr. 25). It was impossible for the ALJ to assess the consistency of this APRN’s opinion
with his treatment notes; therefore, it is impossible for this Court to assess whether the weight
assigned by the ALJ is supported by substantial evidence. Moreover, although the defendant
contends that the plaintiff’s “argument offers ‘no indication that [the APRN’s records] contain
significant information[,]’” (Def.’s Mem. at 14 (quoting Morris v. Berryhill, No. 16-2671-CV,
2018 WL 459678, at *3 (2d Cir. Jan. 18, 2018)), the fact that the ALJ relied on APRN Krause’s
opinion in formulating his RFC assessment most certainly affected the outcome of the plaintiff’s
case.19
Separately, the plaintiff contends that there is evidence of the plaintiff’s gastroenterology and rheumatology
treatment that is missing from the record and that the ALJ erred in failing to secure these records. (Pl.’s Mem. at 1019
36
The ALJ’s discussion of the other medical opinions in the record further undermines his
treatment of APRN Krause’s opinion. The ALJ granted “little weight” to the medical source
statement of Tomaselli and Dr. Alexander, stating that “[i]t is reasonable to require a medical
source, even a treating medical source, to provide a persuasive rationale supported by compelling
evidence to justify his or her opinion[.]” (Tr. 29). The plaintiff was treated regularly at Fairfield
Counseling from March 2012 to April 2013, the underlying records for which were before the
ALJ. The ALJ, however, rejected this opinion based on the lack of underlying records and
“compelling evidence[.]” (Tr. 29). Yet, as discussed above, the ALJ assigned “great weight” to an
opinion of a provider who had no underlying treatment records.
Additionally, the ALJ expressly noted that he assigned “little weight” to the opinion of the
plaintiff’s treating cardiologist as he “did not give a function by function analysis of the effect of
the claimant’s impairments on his ability to function.” (Tr. 27). Similarly, he assigned “little
weight” (Tr. 27) or “no weight” (Tr. 23) to the opinion of Dr. Nowicki,20 in part because Dr.
Nowicki “did not offer a specific function by function analysis of the effect of the claimant’s
11). However, unlike with the absence of the APRN’s treatment records, the plaintiff does not explain how the absence
of this evidence affected the ultimate decision by the ALJ, see Rieces-Colon v. Astrue, 523 F. App’x 796, 799 (2d Cir.
2013), or how these records reflected a disabling condition.
In his decision, the ALJ explained that he granted “no weight” to the opinion of Dr. Nowicki, who testified that the
plaintiff meets Listing 12.02B and C, because he is an internist and not a mental health specialist and because he did
not treat the plaintiff for his “mental health problems.” (Tr. 23, 27 (noting Dr. Nowicki’s treatment of the plaintiff in
2008 and then 2010 for two to three times a year until 2014, for ailments such as respiratory infections, diarrhea, and
binge drinking)); see Selian, 708 F.3d at 417 (addressing consideration of factors including the physician’s specialty
and treatment history). Additionally, the ALJ noted that the extensive treatment records from Fairfield Counseling
Services do not reflect “the level of severity indicated in Dr. Nowicki’s opinion.” (Tr. 27; see Tr. 1377-91). The ALJ
also explained that Dr. Nowicki’s opinion regarding the decrease in the plaintiff’s IQ score was undermined by Dr.
Roginsky’s examination during which he opined that the plaintiff did not put forth a good effort during the exam. (Tr.
28); see Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004); see 20 C.F.R. § 404.1527(c)(2) (“We will always give
good reasons in our notice of determination or decision for the weight we give [the claimant’s] treating source’s
medical opinion.”). However, in rejecting Dr. Nowicki’s opinion, the ALJ pointed out that, while Dr. Nowicki’s
treatment records “consistently note the claimant’s maladaptive use of alcohol[,]” the doctor “failed to address the
claimant’s maladaptive use of alcohol and its effect on the claimant’s mental functioning.” (Tr. 23; see Tr. 109-19,
935-37; see also Tr. 27-28). Thus, in reaching his conclusion regarding the weight he assigned to this treating
physician’s opinion, the ALJ relied on the absence of a functional assessment from Dr. Nowicki from which the ALJ
could assess the plaintiff’s RFC.
20
37
impairments on his ability to function.” (Tr. 27). And, while he granted some weight to the
neuropsychological examination report from Dr. Belliveau, he noted that Dr. Belliveau’s opinion
“provides little guidance” as to the plaintiff’s limitations because the limitations Dr. Belliveau
identified were “too vague to have significant probative value in determining the claimant’s
residual functional capacity.” (Tr. 29). The ALJ, however, relied on the opinion of APRN Krause
at least in part because it included a “specific function by function analysis of the claimant’s
impairments[,]” and the ALJ incorporated those limitations into his RFC finding. (Tr. 29).
A “hearing on disability benefits is a non-adversarial proceeding,” and as such, “the ALJ
generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77
F.3d 41, 47 (2d Cir. 1996) (citation omitted).
This duty exists even when, as in this case, the
claimant is represented by counsel. Id. (citation omitted); see also Burgess, 537 F. 3d at 128. The
regulations provide that the Social Security Administration “will request a medical source
statement about what you can still do despite your impairment(s).” Tankisi v. Comm’r of Soc. Sec.,
521 F. App’x 29, 33 (2d Cir. 2013) (quoting former 20 C.F.R. § 404.1513(b)(6)) (additional
citation omitted).21 The Second Circuit has explained that the “plain text . . . does not appear to
be conditional or hortatory: it states that the Commissioner ‘will request a medical source
statement’ containing an opinion regarding the claimant’s residual capacity. The regulation thus
seems to impose on the ALJ a duty to solicit such medical opinions.” Id. (quoting former 20 C.F.R.
§ 404.1513(b)(6)) (additional citation omitted) (emphasis in original).22 “The need to obtain
medical source statements from a claimant’s treating physicians is particularly acute, because SSA
The changes to this section were effective on March 27, 2017; the ALJ’s October 27, 2015 decision was issued
prior to these changes.
21
22
See also 20 C.F.R. § 404.1520b (providing that an ALJ may, but is not obligated to, re-contact a treating physician,
and providing for such measures only when the existing record evidence is inconsistent or insufficient to make a
disability determination); see 77 Fed. Reg 10, 651-01 (promulgating new regulations, effective March 26, 2012,
amended 20 C.F.R. § 404.1512 to remove former subsection (e)).
38
regulations give the opinions of treating physicians ‘controlling weight,’ so long as those opinions
are ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are]
not inconsistent with the other substantial evidence in . . . [the] record.’” DeLeon v. Colvin, No.
15 CV 1106(JCH), 2016 WL 3211419, at *3 (D. Conn. June 9, 2016) (quoting 20 C.F.R. §
416.927(c)(2) (additional citation omitted). The regulations provide that the medical reports
‘“should include . . . [a] statement about you can still do despite your impairment,’ not that they
must include such statements.” Tankisi, 521 F. App’x at 33, (quoting 20 C.F.R. §§ 404.1513(b)(6),
416.913(b)(6) (emphasis added)).
However, as the Second Circuit also acknowledges, the
regulations state that ‘“the lack of the medical source statement will not make the report
incomplete.’” Id., (quoting 20 C.F.R. § 404.1513(b)(6)) (additional citation omitted); see Swiantek
v. Comm’r Soc. Sec., 588 F. App’x 82, 84 (2d Cir. 2015)(summary order) (“Although the Social
Security regulations express a clear preference for evidence form the claimant’s own treating
physician over the opinion rendered by the consultative examiner . . . , this Court does not always
treat the absence of a medical source statement from claimant’s treating physicians as fatal to the
ALJ’s determination.”). Thus, the regulations, “[t]aken more broadly, . . . suggest remand is not
always required when an ALJ fails in his duty to request opinions, particularly where . . . the record
contains sufficient evidence from which an ALJ can assess the [claimant’s] residual functional
capacity.” Tankisi, 521 F. App’x at 34.
The issue as to whether a treating physician’s opinion is necessary “focuses on
circumstances of the particular case, the comprehensiveness of the administrative record, and, at
core, whether an ALJ could reach an informed decision based on the record[.]” Sanchez, 2015
WL 736102, at *5. Remand is generally not necessary when the record contains sufficient
information from which the ALJ can assess a claimant’s residual functional capacity, and when
39
the record contains an assessment of a claimant’s limitations from at least one treating physician.
See Downes v. Colvin, No. 14 CV 7147(JLC), 2015 WL 4481088, at *15 (S.D.N.Y. July 22, 2015)
(citing Tankisi, 521 F. App’x at 34); see Perez, 77 F.3d at 47-48. Thus, “assessing whether it was
legal error for an ALJ to fail to request a medical source statement from a claimant’s treating
physician is a case-specific inquiry.” DeLeon, 2016 WL 3211419, at *4.
In this case, as discussed above, the ALJ repeatedly notes the absence of the functional
assessments from the plaintiff’s providers and examiners. Additionally, the ALJ states in his
decision that the “[m]ore recent evidence submitted at the Appeals Council and hearing levels is
inconsistent[]” as it relates to the plaintiff’s memory, concentration and cognition. (Tr. 25). In the
face of the inconsistencies, the ALJ concluded that the evidence “suggest[s] the claimant would
struggle in performing complex tasks, but it also suggests that he has the capacity to perform
simple, routine tasks.” (Tr. 25). The ALJ is correct that there are inconsistencies in the medical
evidence, yet the ALJ did not reconcile these inconsistencies. See Selian, 708 F.3d at 419. Instead,
he selectively chose portions of the record to support his conclusion, rather than seeking out
“medical source statements about what the claimant can still do despite [his] impairments[,]” as
directed by the Appeals Council. (Tr. 231). The ALJ did not obtain the functional assessments,
and yet emphasized the impact that the absence of such assessments had in reaching his conclusion.
In this case, unlike in Tankisi, the medical records do not include assessments of the
plaintiff’s limitations from a treating physician. Tankisi, 521 F. App’x at 33–34; see also Perez,
77 F.3d at 48. In addition to the early counseling records, following the Appeals Council’s
remand, the plaintiff was seen regularly by Dr. Jean for depression and anxiety. In October 2014,
Dr. Jean noted that, although the plaintiff was taking classes to obtain his CPA, he was not doing
well due to poor memory. (Tr. 1384, 1386). Her treatment records reveal repeated reports of
40
poor concentration and confusion (Tr. 1384, 1386), distraction (Tr. 1386), difficulty processing
information (Tr. 1386), and forgetfulness (Tr. 1386). Dr. Jean’s diagnoses were bipolar disorder
(unspecified); panic disorder with agoraphobia; generalized anxiety disorder; and alcohol
dependence (Tr. 1384), and she noted that the plaintiff’s “forgetfulness and decrease [in] executive
function [were] concerning.” (Tr. 1386). Additionally, records from Dr. Jean in March 2015
reveal complaints of worsening depression, concentration, and energy level (Tr. 1388), decreased
memory (Tr. 1388) and social isolation (Tr. 1388). Though the plaintiff reported improvement in
his mood in April and May 2015 (Tr. 1390-91), his memory continued to decline such that Dr.
Jean opined that his “impaired cognitive function and periods of confusion interfere with his
ability to function in a work place[.]” (Tr. 1391). These records, however detailed, do not reflect
assessments of the plaintiff’s work-related limitations.
Additionally, the consulting physicians and psychologists examined the plaintiff on one
occasion, see Tankisi, 521 F. App’x at 34 (consulting physician examined Tankisi twice), and as
referenced above, the ALJ concluded that Dr. Belliveau’s opinion, which was the only
consultative opinion issued after the remand order,23 “provides little guidance” as to the plaintiff’s
limitations because the limitations Dr. Belliveau identified were “too vague to have significant
probative value in determining the claimant’s residual functional capacity.” (Tr. 29). 24 As the
In addition to Dr. Belliveau’s evaluation, the ALJ considered consultative evaluations of Dr. Roginsky and Dr.
Bobulinski, neither of which included opinions as to the plaintiff’s functional limitations. See Section II.B. supra.
23
As discussed above, Dr. Belliveau performed a neuropsychological examination which revealed “cognitive
inefficiency[,]” but a full scale IQ of 98, average attention and concentration abilities, average range intellectual
functioning, and no indication of a clinically significant memory impairment. (Tr. 1141-42). During the evaluation,
Dr. Belliveau observed that the plaintiff had “no difficulty maintaining alertness[,]” his speech was normal, and his
thought processes coherent and goal directed. (Tr. 1140-41). Dr. Belliveau concluded:
24
This gentleman has Bipolar Disorder with at least intermittent hypomanic features, and a high level
of anxiety. It is highly likely that his mood and anxiety disorders would interfere with his
occupational functioning. These conditions would interfere with his ability to consistently maintain
a reasonable pace and productivity in a competitive work environment, interfere with his ability to
41
Second Circuit has explained, “[T]he opinions of consulting physicians . . . generally have less
value than the opinions of treating physicians . . .” Tankisi, 521 F. App’x at 34 (citation and
internal quotations omitted), which is why “[t]he opinion of the treating physician is of particular
importance to the determination of disability, including the claimant’s RFC.” Moreau v. Berryhill,
No. 3:17-CV-00396 (JCH), 2018 WL 1316197, at *7 (D. Conn. Mar. 14, 2018) (citing Hallet v.
Astrue, No. 3:11-cv-1181, 2012 WL 4371241, at *6 (D. Conn. Sept. 24, 2012) (distinguishing the
perspective of the treating physician from that of the examining physician)); see also Hallet, 2012
WL 4371241, at *6 (noting 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.”).
Thus, the record cannot be considered adequate to permit an informed finding by the ALJ
of the plaintiff’s RFC, and remand is warranted. See Moreau, 2018 WL 1316197, at *10 (citing
Sanchez, 2015 WL 736102, at *6); see also Messina v. Comm’r of Soc. Sec., 17-cv-1598, ___ F.
App’x __ (2d Cir. Sept. 5, 2018) (summary order). The ALJ repeatedly acknowledged that he
lacked function by function analyses in the medical record and decided to apply the greatest weight
on the one such analysis in the record which was not made by a treating source and which is not
supported by any treating records from that provider.
D.
REMAINING ARGUMENTS
In light of the conclusion reached in Section IV.C. supra, the Court need not address the
plaintiff’s remaining arguments as, upon remand, the ALJ must solicit opinions about the
adaptively respond to changing demands in the work environment, and interfere at least
intermittently with his ability to effectively manage interpersonal aspects of the work environment.
(Tr. 1143).
42
plaintiff’s functional abilities with and without substance use, and then consider that information
in formulating his RFC assessment, which will require additional vocational findings.
V.
CONCLUSION
Accordingly, for the reasons stated above, the plaintiff’s Motion to Reverse the Decision
of the Commissioner (Doc. No. 21) is granted such that the matter is remanded for further
proceedings consistent with this Ruling, and the defendant’s Motion to Affirm (Doc. No. 29) is
denied.
Dated this 6th day of September, 2018 at New Haven, Connecticut.
_/s/ Robert M. Spector, USMJ
Robert M. Spector
United States Magistrate Judge
43
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