Cowles v. Berryhill
Filing
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ORDER: For the reasons set forth in the attached document, the plaintiff's Motion for Judgment on the Pleadings (Doc. No. 14 ) is hereby GRANTED, and Defendant's Motion for an Order Affirming the Decision of the Commissioner (Doc. No. 19 ) is hereby DENIED. This case is hereby REMANDED. The Clerk shall close this case. Signed by Judge Alvin W. Thompson on 9/24/18. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CINDY LOU COWLES,
:
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
:
:
: Civil No. 3:17CV1229 (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.
v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
See Johnson
The plaintiff argues, inter alia, that the Administrative
Law Judge (“ALJ”) failed to properly weigh medical opinion
evidence.
See Pl.’s Mem. to Reverse (Doc. No. 14-2) at 2.
The defendant argues that the ALJ applied the correct legal
standard and that the Decision is supported by substantial
evidence.
See Def.’s Mem. to Affirm (“Doc. No. 19-1”) at 18.
The court concludes that, at minimum, the ALJ failed to
follow the treating physician rule when weighing the opinion of
the plaintiff’s treating physician, Dr. Aurora Leon Conde1 which,
standing alone, warrants remand.
“[T]he opinion of a claimant’s treating physician as to the
nature and severity of the impairment is given ‘controlling
weight’ if it ‘is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case
record.’”
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
1
The plaintiff and
name. See Doc. No.
times as Dr. Aurora
because it includes
consistent with the
the ALJ use different versions of the doctor’s
19-1 at 4 n.2. The doctor refers to herself at
Leon Conde, and that is the name the court uses
both the Leon and Conde variations and is
record. See e.g. R. at 1744.
2
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.
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,
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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).
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
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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
agency's determination.”
Shinseki v. Sanders, 556 U.S. 396, 409
(2009).
The ALJ’s Decision states:
Little weight is given to the report from Dr. Leon
(Ex. B31F), because the severe limitations described
therein
are
inconsistent
with
the
claimant's
conservative treatment history, mild to moderate
radiology
findings,
and
wide
range
of
daily
activities.
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R. at 33.
There is an earlier paragraph (see R. at 28) where
the Decision describes Dr. Leon Conde’s records but the forgoing
language is the entirety of the Decision’s analysis as to why
little weight is given to the doctor’s report.
In Burgess v. Astrue, 537 F.3d 117 (2d Cir. 2008), however,
the Second Circuit held that:
The ALJ and the judge may not “impose[ ] their [respective]
notion[s] that the severity of a physical impairment
directly correlates with the intrusiveness of the medical
treatment ordered. . . . [A] circumstantial critique by
non-physicians, however thorough or responsible, must be
overwhelmingly compelling in order to overcome a medical
opinion.” Id. at 134–35 (internal quotation marks omitted);
see also id. at 134 (Commissioner is not “permitted to
substitute his own expertise or view of the medical proof
for the treating physician's opinion”).
Burgess, 537 F.3d at 129 (emphasis added).
Here, the Decision’s
sparse rationale is neither “overwhelmingly compelling” nor
explicit and comprehensive enough for meaningful review,
particularly given other findings in Dr. Leon Conde’s records,
as noted by the defendant:
Dr. Conde stated that her opinions were based on MRI
findings as well as clinical evidence of low back pain that
occurred daily, worsened with movement, and was exacerbated
by anxiety and depression (Tr. 1740-1741, 1744).
Indeed,
an MRI [dated December 16, 2014] revealed multilevel
degenerative spondylosis, an L5-S1 asymmetric annular bulge
to the right causing moderate to severe compression of the
right L5 foraminal nerve root, and moderate to severe facet
degenerative changes at multiple levels in the mid-to-low
lumbar spine (Tr. 1698-1699).
Physical examinations also
confirmed pain with lumbar flexion and extension as well as
absent sensation to monofilament testing in multiple areas
of the left foot (Tr. 1466); decreased range of motion,
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positive left straight leg raising test, and absent
sensation in the lateral aspect of the left foot (Tr.
1451); decreased range of motion in the lumbar spine due to
discomfort
(Tr.
1706);
and,
decreased
sensation
to
vibration in both ankles (Tr. 1442).
Pl.’s Mem. to Reverse (Doc. No. 14-2) at 2.
Dr. Leon Conde also
noted that the plaintiff was referred to orthopeadics and that
she was “not a candidate for surgery”.
R. at 1740, 1741.
The
record reveals that surgical intervention was considered and not
recommended because “the results would be quite unpredictable
due to the chronicity of her pain.”
added).
R. at 1707 (emphasis
The ALJ makes no mention of this evidence in explaining
why she chose to give little weight to Dr. Leon Conde’s opinion.
Given the “inconsistencies” noted by the ALJ and the conflicting
information suggesting that surgery, a non-conservative
treatment, had been considered, the ALJ had an affirmative duty
to develop the record by making every reasonable effort to recontact the treating source for clarification.
If asked, Dr.
Leon Conde may have been able to provide persuasive medical
explanations supported by clinical findings for the limitations
at issue, which may have led to a different residual functional
capacity (“RFC”).
As to the rationale that the plaintiff could perform a wide
range of daily activities, “it is well-settled that ‘[s]uch
activities do not by themselves contradict allegations of
disability,’ as people should not be penalized for enduring the
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pain of their disability in order to care for themselves.”
Knighton v. Astrue, 861 F. Supp. 2d 59, 69 (N.D.N.Y.
2012)(remanded because ALJ prematurely found plaintiff’s
contentions not fully credible due to ability “to perform daily
activities like caring for pets, preparing simple meals, driving
a vehicle, and helping with household chores” and citing
Woodford v. Apfel, 93 F. Supp. 2d 521, 529 (S.D.N.Y. 2000) and
Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“We have
stated on numerous occasions that ‘a claimant need not be an
invalid to be found disabled’ under the Social Security Act.”)).
As noted by the plaintiff:
[T]he ALJ failed to explain how Ms. Cowles’ activities of
daily living contradict the opinions from Dr. Conde (Tr.
33). Ms. Cowles gave uncontradicted testimony that she has
pain even when simply performing household chores such as
dusting and requires rest periods in order to complete them
(Tr. 49-50, 57). In addition, she needs help from her
fiancé to do laundry and prepare[] meals (Tr. 56-57).
During the day, she spends most of her time at home
watching television (Tr. 58). These are hardly significant
activities of daily living. See Murdaugh v. Sec. of Dep’t
of HHS of U.S., 837 F.2d 99, 102 (2d Cir 1988) (fact that
Plaintiff “waters his landlady’s garden, occasionally
visits friends and is able to get on and off an examination
table can scarcely be said to controvert the medical
evidence” of disability); Archambault v. Astrue, 09 Civ.
6363, 2010 WL 5829378 *30 (S.D.N.Y. Dec. 13, 2010) (“The
ALJ also remarked . . . plaintiff’s reported activities of
daily living, which included self-care, childcare duties, a
few household chores, and some pastimes, indicate that ‘he
is not debilitated.’
Plaintiff’s ability to engage in
certain limited daily activities does not provide evidence
of his ability to perform sedentary work unless he can
perform those daily activities at a level consistent with
the demands of sedentary work. As the ALJ failed to discuss
the rigor of plaintiff’s daily activities and presumed that
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those activities demonstrated a lack of disability, she
committed legal error” (citations omitted)), R&R. adopted,
2011 WL 649665 (S.D.N.Y. Feb. 17, 2011); Brown v. Comm’r of
Soc. Sec., No. 06-CV-3174, 2011 WL 1004696 *4 (E.D.N.Y.
Mar. 18, 2011) (“[E]ven to the extent that [Plaintiff’s]
daily activities were properly considered, the ALJ failed
to place the burden on the Commissioner to show that those
activities were evidence of residual functional capacity to
perform full-time sedentary work”).
Pl.’s Mem. to Reverse (Doc. No. 14-2) at 4-5.
The court agrees.
On remand, if the ALJ concludes that Dr. Leon Conde’s opinion
merits less than controlling weight, she should explicitly and
comprehensively set forth the reasons why the plaintiff’s
activities of daily living discredit the doctor’s opinion that
the plaintiff’s impairments limit her ability to work 8 hours a
day 5 days a week.
The plaintiff also points to the ALJ’s failure to analyze
all factors set forth in § 404.1527(c).
The court agrees that
this warrants remand:
The ALJ failed to discuss these factors and they certainly
do not support rejection of the treating source opinions.
Dr. Conde has treated Ms. Cowles regularly since June 2015
(Tr. 145) and Plaintiff received treatment at the same
facility where she saw this doctor since at least October
26, 2012 (Tr. 1618-1619). The nature of the treatment
focused
on
Plaintiff’s
disabling
spinal
condition
documented by MRI as well as clinical findings. Dr. Conde
provided support for her opinions (Tr. 1740-1744). And, as
discussed above, those findings are confirmed by the
longitudinal treatment records.
Pl.’s Mem. to Reverse (Doc. No. 14-2) at 6.
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For the reasons set forth above, the court finds that the
ALJ failed to provide “good reasons” for giving Dr. Leon Conde’s
opinion less than controlling weight.
On remand the ALJ should apply the correct legal standard
in evaluating Dr. Leon Conde’s opinion (analyze all factors,
develop the record, inquire about evidentiary ambiguities,
inconsistencies and conflicts, re-evaluate activities of daily
living, set forth rationale sufficiently explicitly and
comprehensively to allow for meaningful review) and address the
parties’ arguments with respect to the weight given to treating
mental health sources and nonexamining state agency medical
consultants, the credibility determination, and the RFC
findings, as appropriate.
For the reasons set forth above, the plaintiff’s Motion for
Judgment on the Pleadings (Doc. No. 14) is hereby GRANTED, and
Defendant’s Motion for an Order Affirming the Decision of the
Commissioner (Doc. No. 19) 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.
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It is so ordered.
Dated this 24th day of September 2018, at Hartford,
Connecticut.
__
/s/AWT
__ ____
Alvin W. Thompson
United States District Judge
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