Williams v. Berryhill

Filing 27

ORDER denying 21 Motion to Reverse the Decision of the Commissioner and granting 26 Motion for Judgment on the Pleadings. The clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 09/14/2018. (Shafer, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LYNNE C. WILLIAMS,
Plaintiff,
v.

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

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Civil Case Number
3:17-cv-01235 (VLB)

September 14, 2018

MEMORANDUM OF DECISION DENYING PLAINTIFF’S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER (DKT. NO. 21) AND GRANTING
DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
(DKT NO. 26)
This is an administrative appeal following the denial of Plaintiff Lynne C.
Williams’ application for Title II Social Security Disability and Title XVI
Supplemental Security Income benefits.1 It is brought pursuant to 42 U.S.C. §§
405(g). Plaintiff has moved for an order reversing the decision of the
Commissioner of the Social Security Administration (“Commissioner”). (Dkt. No.
21). The Commissioner opposes this motion. (Dkt. No. 26). For the following
reasons, Plaintiff’s Motion for an Order Reversing the Commissioner’s Decision

1

Under the Social Security Act, the “Commissioner of Social Security is directed
to make findings of fact, and decisions as to the rights of any individual applying
for a payment under [the Act].” 42 U.S.C. § 405(b)(1). The Commissioner’s
authority to make such findings and decisions is delegated to administrative law
judges (ALJs”). C.F.R. §§ 404.929 et seq. Claimants can in turn appeal an ALJ’s
decision to the Social Security Appeals Council. 20 C.F.R. §§ 404.967 et seq. If the
appeals council declines review or affirms the ALJ opinion, the claimant may
appeal to the United States District Court. Section 205(g) of the Social Security
Act provides that “[t]he court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the
cause for a rehearing.”
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(Dkt. No 21-2) is DENIED and Defendant’s Motion for an Order Affirming the
Commissioner’s Decision is GRANTED.
I.

Background
a. Administrative Proceedings
On April 8, 2014, Plaintiff applied for disability insurance benefits and for

supplemental security income. (R. 248). Plaintiff claims that her disability began
on December 16, 2013, when she began experiencing back and radiating leg pain.
Both applications were initially denied on August 19, 2014, and again upon
reconsideration on May 6, 2015. (R. 134-141, 147-162). Plaintiff then requested a
hearing before an Administrative Law Judge (“ALJ”). (R. 163-165). ALJ Ronald J.
Thomas heard the case on November 21, 2016. (R. 33-35). ALJ Thomas issued a
decision finding that Plaintiff was not disabled within the meaning of the Social
Security Act. (R. 10). The Appeals Council denied Plaintiff’s request for review;
this action followed. (R. 1-4).
b. Medical History/Chronology
Plaintiff was under the care of Dr. Richard R. Slater until December 23,
2010. (R. 649). Dr. Slater withdrew from treating Plaintiff because he believed that
Plaintiff was seeking controlled substances. (R. 648-649).
On September 22, 2011, Plaintiff saw nephrologists Anushree Shirali, M.D.
and Deepak Kadiyala, M.D for evaluation. (R. 405). Their treatment notes
described Plaintiff as a 53-year-old female with a ten-year history of hypertension,
hyperlipidemia, remote CVA, obesity2 and chronic back pain. (R. 405). Plaintiff

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The doctor recorded that Plaintiff’s weight was 190 pounds. (R. 405).
2

told Drs. Shirali and Kadiyala that she was formerly an x-ray technician “but
stopped due to back pain” (R. 406). Plaintiff had been taking Percocet and Valium
for several months preceding her appointment but switched to meloxicam and
Motrin shortly before her appointment. Plaintiff stated that her hypertension was
a side effect of the meloxicam and that she would prefer to take Percocet. (R.
406). Dr. Kadiyala diagnosed Plaintiff with Chronic Kidney Disease and suggested
a Liboderm patch instead of non-steroidal anti-inflammatory drugs (“NSAIDs”)
like meloxicam and Motrin. (R. 406).
Plaintiff presented to the Emergency Room at Yale New Haven Hospital
(“Yale”), on February 19, 2013, following a fall on the ice. (R. 403-405). Plaintiff
complained of left ankle pain and swelling. (R. 403). An x-ray confirmed an
avulsion fracture to the left ankle. (R. 405). Plaintiff received Tylenol for pain. (R.
405).
Months later, in May 2013, Plaintiff saw a physician at the General
Practitioners of Hamden and asked for a note allowing her to “return to work at
full capacity.” (R. 647). While there, she complained of prolonged back pain and
requested something to aid sleep. The doctor she saw prescribed Diazepam. (R.
647).
On December 16, 2013, Dr. Pichamol Jirapinyo treated Plaintiff at Yale’s
Primary Care Center for back pain. (R. 401-403). The doctor recorded Plaintiff’s
height and weight as 5’7” and 193 pounds giving Plaintiff a BMI of 30.25 kg/m2.
(R. 402). Plaintiff complained that her back pain had been occurring for
approximately 15 years. She described the pain as sharp, constant, and getting

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increasingly worse. Plaintiff also experienced numbness and tingling in her legs.
(R. 401). She stated the pain affected her daily activity and interrupted with her
sleep. (R. 401). Additionally, Plaintiff indicated that she had tried multiple
medications as well as several weeks of physical therapy with no improvement.
(R. 401). She refused to accept a physical therapy referral. (R. 401). Thus, Dr.
Jirapinyo prescribed Tramadol, an opioid pain medication. (R. 402). The Plaintiff
stated that morphine, which she received from a friend, provided the only relief.
(R. 401). Plaintiff requested morphine, but the doctor refused because alternative
options were not yet maximized. (R. 401).
Following the doctor’s refusal to prescribe morphine, Plaintiff returned to
Yale’s Primary Care Center on January 23, 2014. (R. 524-525). During this visit,
Plaintiff denied the scheduled blood work and threw lab slips at the nurse. (R.
524). Plaintiff then pushed her son who was defending the nurse. Security was
called to escort Plaintiff out of the office. (R. 524).
Plaintiff next appeared at Yale in the Emergency Room on March 4, 2014
reporting suicidal ideation. (R. 516-524). She admitted to spending her state
benefits check on card games and alcohol. (R. 517). She stated that she drank
vodka from the bottle for two days before arriving at the hospital. (R. 517).
Plaintiff also admitted to feeling bad about herself for several months because
she was unemployed and had a poor relationship with her father. (R. 517).
Plaintiff was willing to undergo alcohol treatment. (R. 522). Her Global
Assessment of Functioning Score (GAF Score), which assesses the effect of

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psychiatric illness on a person’s functional skills and abilities, was 51 out of 100.
(R. 522).
Three weeks later, on March 28, 2014, Plaintiff returned to the Primary Care
Center. (R. 389-392). Dr. Jirapinyo met with Plaintiff. Plaintiff informed the doctor
that her pain was still constant. (R. 390). Dr. Jirapinyo noted that Plaintiff was in
the obese range based on a recorded height of 5’6” and weight of 191 pounds. (R.
390). The doctor noted Plaintiff’s BMI to be 30.88 kg/m2. (R. 390). The doctor was
not certain whether spinal stenosis or osteoarthritis caused the Plaintiff’s back
pain. (R. 391). The doctor ordered an MRI to evaluate Plaintiff’s back. (R. 391).
The MRI took place on April 22, 2014, and showed multiple bulging discs,
some with stenosis and contact with nerve roots. (R. 369). Plaintiff saw Dr.
Perdigoto to review the MRI. (R. 385). Dr. Perdigoto stated the pain was likely
degenerative disease and that Plaintiff had epidural lipomatosis, which was
possibly correlated with her obesity. (R. 386). Plaintiff stated that she was having
difficulty working because she was unable to stand or sit for prolonged periods
of time due to her pain. (R. 385). The epidural lipomatosis can lead to progressive
neurological deficits, so Dr. Perdigoto referred Plaintiff to orthopedics. (R. 386).
The doctor increased the Tramadol prescription from 50mg to 100mg. (R. 386). Dr.
Perdigoto issued a letter following the visit stating that Plaintiff has a
degenerative disc disease and epidural lipomatosis, rendering her unable to
work. (R. 370).
On May 24, 2014, just one month after the MRI, an ambulance escorted
Plaintiff to the Yale New Haven Emergency Room. (R. 430-439). The ambulance

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arrived after Plaintiff woke up naked, in complete disarray. Plaintiff’s son
indicated that she was extremely intoxicated the night before. (R. 431). The report
showed Plaintiff was drinking two pints of vodka per day, three days per week,
and using crack cocaine. (R. 435). The Plaintiff also admitted to taking “handfuls”
of the prescribed Tramadol. (R. 431). Plaintiff refused detoxification. She left the
hospital upon being clinically sober. (R. 432).
Plaintiff returned to Yale on May 30, 2014 after making suicidal comments.
(R. 471-478). The report stated that Plaintiff “had been drinking earlier, got into an
altercation wither her husband, and made comments about ‘blowing her brains
out.’” (R. 473). Additionally, Plaintiff was “belligerent, combative and yelling at
staff.” (R. 473). Plaintiff ultimately denied suicidal plans and staff decided she
was non-suicidal. (R. 475).
On August 13, 2014, Plaintiff presented to Yale Primary Care Center for
“pain uncontrolled on current regiment” and refills of her anti-hypertensives and
cholesterol medications. (R. 552-555). The report indicated Plaintiff had been
using double the prescribed amount of Tramadol and was in need of more
medication. (R. 552). Additionally, Plaintiff stated that no medication eased her
pain except morphine. The supervising physician added to the report that Plaintiff
refused to discuss any type of therapy or medication besides narcotic treatment.
(R. 554). The supervising physician declined to prescribe morphine. (R. 522).
Plaintiff returned to Primary Care Center on October 8, 2014 with lumbar
pain. (R. 555-559). Dr. Alison Romegialli assessed Plaintiff. (R. 555). Plaintiff
indicated that the pain was better when she leaned forward, but that she laid flat

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the majority of the time. (R. 556). Additionally, Plaintiff showed significant weight
gain over the past few years due to inactivity and reported an inability to perform
household chores. (R. 556). The doctor indicated lower lumbar tenderness and a
limited range of motion, but no neurological deficits. (R. 557). Furthermore, the
doctor referred Plaintiff to a pain specialist and a neurologist. (R. 559).
On January 12, 2015, Dr. Kolene McDade assessed Plaintiff at the Primary
Care Center. (R. 570-573). The examination affirmed the continued back pain as
well as a gait problem. (R. 571). The doctor stated that Plaintiff’s description of
her pain was out of proportion to the MRI results. (R. 572).
Plaintiff’s next visit to Primary Care occurred on August 26, 2015, where
she saw Dr. Mohsin Chowdhury for “worsening back pain” and a renewal of
Tramadol. (R. 657-666). The report showed that Plaintiff had canceled the
appointments for neurology and pain management that were previously
scheduled at Dr. Romegialli’s suggestion. (R. 657). Plaintiff also refused to try
aquatherapy, stating she was afraid of water. (R. 657). The doctor renewed the
Tramadol prescription. (R. 660).
On March 29, 2016, Dr. Robert Morrison of the Connecticut Heart Group, PC
evaluated Plaintiff for a cardiovascular consultation after an abnormal EKG. (R.
885-886). Plaintiff’s height, weight and BMI were 5’6”, 213 pounds, and 34.38
kg/m2 respectively. (R. 885). The doctor ordered a stress test and an
echocardiogram. (R. 885). Additionally, Dr. Morrison instructed Plaintiff to
discontinue tobacco use. (R. 885).

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Plaintiff returned to the Emergency Room at Yale on April 3, 2016, reporting
back pain and abdominal pain. (R. 737-741). The doctor gave Plaintiff a Licodaine
patch and she returned home after her symptoms improved. (R. 741). Plaintiff
came back to the Emergency Room on April 12, 2016. (R. 742-746). Plaintiff stated
she suffered from the same back pain for years that her pain was not changing.
(R. 742).
On May 2, 2016, Plaintiff saw Dr. Romegialli at the Primary Care Center for
follow-up. (R. 677-680). Plaintiff specified that she needed narcotics for her back
pain. (R. 680). When Dr. Romegialli attempted to counsel Plaintiff on the best
remedies, Plaintiff interrupted and asked if the doctor would prescribe her
opioids. (R. 680). When the doctor refused to prescribe narcotics, Plaintiff left the
office. (R. 680).
Plaintiff had an abnormal echocardiogram at the Connecticut Heart Group
office on May 18, 2016. (R. 890-892). A stress test occurred on June 17, 2016. (R.
889). The Plaintiff’s shortness of breath caused the test to end after two minutes.
(R. 889). The doctor noted that Plaintiff was at immediate risk for a cardiovascular
event due to her performance on the stress test. (R. 889).
A left heart catheterization and coronary angiography occurred at Yale, on
July 18, 2016. (R. 887-888). A surgical consultation for a coronary artery bypass
graft with Dr. Viswa Nathan took place on July 21, 2016. (R. 895-897). The
catheterization revealed triple coronary artery disease and Dr. Nathan suggested
coronary artery bypass x 3 to be done the following day. (R. 895-896). Following
the bypass surgery, Plaintiff remained in the hospital until July 27, 2016. (R. 780-

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784). After being discharged, Dr. Joseph Gallego noted that Plaintiff returned
home and drank half a pint of vodka. (R. 814-815).
The next day, Plaintiff attempted to appear at the hearing before ALJ
Thomas but had a syncopal episode in the lobby and an ambulance transported
her to Yale. (R. 804-833). Plaintiff remained hospitalized until August 1, 2016 due
to evolving pneumonia. (R. 826). Antibiotics were prescribed. (R. 809). During her
stay, Plaintiff discussed with Dr. Jonathan Siegfried her ideation that the hospital
was keeping her only for the institution’s and employees’ financial benefit. (R.
813).
Plaintiff saw Dr. Chowdhury at the Primary Care Center to follow-up on
August 12, 2016. (R. 879-882). Plaintiff stated her dissatisfaction with some of the
doctors that have evaluated her, then began complimenting others as the “best
doctors” she has ever had. (R. 879). Dr. Chowdhury, concerned by her split
behavior, suggested a mental health evaluation. Plaintiff refused. (R. 879). The
doctor also noted that her exercise tolerance was improving. (R. 879).
Dr. Nathan evaluated Plaintiff on August 23, 2016. (R. 899-901). The doctor
indicated Plaintiff’s height, weight and BMI were 5’5”, 218 pounds, and 36.28
respectively. (R. 900). Dr. Nathan strongly advised Plaintiff to be on a strict diet.
(R. 900). On a follow-up dated October 11, 2016, Dr. Nathan saw Plaintiff again. At
this visit, Plaintiff weighted 208 pounds and her BMI dropped to 34.78. Dr. Nathan
advised Plaintiff to “lose a few more pounds.” (R. 914-915).
Plaintiff returned to the Primary Care Center on November 9, 2016 to
discuss back pain with Dr. Graham Taylor. (R. 916-919). Plaintiff’s weight

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remained at 208 pounds. (R. 917). The doctor discussed with Plaintiff his reasons
for not prescribing her an opioid. (R. 916). Plaintiff refused all other suggested
treatments. (R. 916). On or around November 14, 2016, Plaintiff had a second
lumbar MRI. (R. 910). There was no significant change when compared to the
original MRI. (R. 907). Plaintiff then went to Yale on December 6, 2016 and
explained that narcotics remained the only medication that could relieve her pain.
(R. 919-23). Physician’s Assistant, Adam Riso, clarified that he would not
prescribe pain medication for back pain but would refer Plaintiff to physical
therapy. (R. 923).
c. The ALJ’s decision
At step one, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since December 16, 2013, the alleged onset date. (R. 12). At step
two, the ALJ found that Plaintiff has the following severe impairments:
degenerative disc disease of the lumbar spine; hypertension with coronary artery
disease; and obesity. (R. 12). The ALJ held these impairments “significantly limit
the claimant’s ability to perform basic work activities.” (R. 12). Additionally, the
ALJ found Plaintiff’s cataract, affective disorder, and alcohol abuse non-severe,
as they only amount to a “combination of slight abnormalities that would have
had no more than a minimal effect on the claimant’s ability to meet the basic
demands of work activity.” (R. 12). Further, the ALJ found Plaintiff did not have a
severe mental impairment according to the four broad functional areas explained
in the disability regulations for evaluating mental disorders. (R. 12).

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At step three the ALJ found the claimant not to have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (R. 14).
Specifically, the ALJ considered Plaintiff’s degenerative disc disease under
Listing 1.04 but concluded that Plaintiff’s condition does not demonstrate the
requisite neurological deficits. (R. 15). Additionally, the ALJ found Plaintiff’s
hypertension and coronary artery disease did not satisfy any cardiac impairment
in Listing 4.00. (R. 15). The ALJ also specified that obesity is viewed in
combination with listed impairments as a factor, not as a separate impairment. (R.
15). While Plaintiff most recently weighed 208 pounds, (R. 917), the evidence did
not establish that the additional impact of Plaintiff’s excess weight caused any
relevant listing to be met or medically equaled. (R. 15).
At step four, the ALJ found that Plaintiff has the residual functional
capacity to perform light work as well as “occasional bending, balancing,
crawling, twisting, squatting, kneeling, and climbing with no climbing of ropes,
ladders or scaffolds.” (R. 15). Specifically, the ALJ pointed out that Plaintiff is
able to drive, cook meals for her family, wash dishes, and use public
transportation. (R. 15, 18).
When assessing the residual functional capacity, the ALJ must follow a
two-step process. (R. 15). First, it must be determined whether there is “an
underlying medically determinable physical or mental impairment . . . that could
reasonably be expected to yield Plaintiff’s pain or other symptoms.” (R. 15).
Second, the ALJ must evaluate the “intensity, persistence, or functionally limiting

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effects of the claimant’s symptoms to determine the extent to which they limit the
claimant’s functional limitations.” (R. 15).
After considering the evidence, the ALJ found Plaintiff’s medically
determinable impairments could reasonably be expected to cause Plaintiff’s back
pain. (R. 16). In step two of the analysis, the ALJ found Plaintiff’s statements
concerning the degree of the symptoms not entirely consistent with the medical
evidence and other evidence of the record. (R. 16). This finding was consistent
with that of her treating physician who stated that Plaintiff’s description of her
pain was out of proportion to the MRI results. (R. 572).

In this examination, the

ALJ gave substantial weight to Plaintiff’s repeated refusal of physical therapy,
pain management, and neurology treatment. (R. 17). The ALJ also gave great
weight to the initial assessments, which support a finding of light residual
functional capacity. (R. 18). While Plaintiff described limited daily activities, the
ALJ stated that the daily activities could not be “objectively verified with any
reasonable degree of certainty.” (R. 18). The ALJ assigned Plaintiff’s GAF score
of 51 minimal weight due to the absence of consideration for “specific workrelated limitations or objective mental abnormalities.” (R. 14). The ALJ indicated
the GAF scale is an “inappropriate” tool for assessing legal disability. (R. 14). The
ALJ also gave slight weight to both notes from Dr. Perdigoto and Dr. McDade
indicating Plaintiff’s inability to work. (R. 19). The ALJ specified that deciding
whether or not a person can work is not a medical opinion, but rather an
“administrative finding dispositive of a case.” (R. 19). Ultimately, the ALJ found
the claimant would be able to perform different types of work at the light

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exertional level with some “non-exertional limitations” specified in the residual
functional capacity. (R. 19).
At step five, the ALJ found Plaintiff capable of performing past relevant
work as a radiology technician because the work does not require the precluded
activities listed in the claimant’s residual functional capacity. (R. 19). The ALJ
gave great weight to the vocational expert who testified that the occupation of
radiology technician is a “light job.” (R. 19). Because of the corroboration of the
vocational expert testimony and Plaintiff’s residual functional capacity, the ALJ
found Plaintiff to be capable of performing past relevant work. (R. 20). As a result
of the five-step evaluation, the ALJ found that Plaintiff was not disabled as
defined in the Social Security Act. (R. 20).
II.

Legal Standard

The Social Security Act establishes that benefits are payable to individuals
who have a disability. 42 U.S.C. § 423(a)(1). “The term ‘disability’ means . . . an
inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1). A person
must be disabled within the meaning of the Social Security Act and not any other
law or regulation. A Social Security disability determination based on other laws
or regulations is not dispositive of whether a person is disabled under the Social
Security Act. 20 C.F.R. §§ 404.1504, 416.904. That section provides that “a
determination made by another agency that you are disabled . . . is not binding on
the Social Security Administration.” See also Musgrave v. Sullivan, 966 F.2d 1371,
1375 (10th Cir. 1992) (ALJ did not err by not giving more weight to VA finding that

13

claimant was 20% disabled). The position has been reinforced by the amendment
to the regulation which now states that “on or after March 27, 2017, we will not
provide any analysis in our determination or decision about a decision made by
any other governmental agency or a nongovernmental entity about whether you
are disabled, blind, employable, or entitled to any benefits.” 20 C.F.R. §§
404.1504; 416.904. Thus, the weight given to the opinion of an expert who is
familiar with the Social Security Act program is entitled to greater weight than the
opinion of an expert who is unfamiliar with the program.
In order to determine whether a claimant is disabled within the meaning of the
Social Security Act, the ALJ must follow a five-step evaluation process
promulgated by the commissioner.3 A person is disabled under the Act when
their impairment is “of such severity that she is not only unable to do her
previous work but cannot . . . engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “Work
which exists in the national economy means work which exists in significant

3

The five steps are as follows: (1) The Commissioner considers whether the
claimant is currently engaged in substantial gainful activity; (2) if not, the
Commissioner considers whether the claimant has a “severe impairment” which
limits his or her mental or physical ability to do basic work activities; (3) if the
claimant has a “severe impairment,” the Commissioner must ask whether, based
solely on the medical evidence, the claimant has an impairment listed in
Appendix 1 of the regulations. If the claimant has one of these enumerated
impairments, the Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and work experience; (4) if
the impairment is not “listed” in the regulations, the Commissioner then asks
whether, despite the claimant’s severe impairment, he or she has the residual
functional capacity to perform his or her past work; and (5) if the claimant is
unable to perform his or her past work, the Commissioner then determines
whether there is other work which the claimant could perform. The Commissioner
bears the burden on the first four steps. 20 C.F.R. §416.920(a)(4)(i)-(v).
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numbers either in the region where such individual lives or in several regions of
the country.” Id.4
“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.” Zambrana v. Califano, 651 F.2d 842 (2d Cir.
1981). “The findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, [are] conclusive.” 42 U.S.C. § 405(g).
Accordingly, the Court may not make a de novo determination of whether a
plaintiff is disabled in reviewing a denial of disability benefits. Id.; 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 his conclusion, and whether the decision is
supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.
1987). Therefore, absent legal error, this Court may not set aside the decision of
the Commissioner if it is supported by substantial evidence. Berry v. Schweiker,
675 F.2d 464, 467 (2d Cir. 1982). If the Commissioner’s decision is supported by
substantial evidence, that decision will be sustained, even where there may also
be substantial evidence to support the plaintiff’s contrary position. Schauer v.
Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
The Second Circuit has defined substantive evidence as “such relevant
evidence as a reasonable mind might accept as adequate to support a
4

The determination of whether such work exists in the national economy is made
without regard to: 1) “whether such work exists in the immediate area in which
[the claimant] lives;” 2) “whether a specific job vacancy exists for [the claimant];”
or 3) “whether [the claimant] would be hired if he applied for work.” Id.
15

conclusion.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be
“more than a scintilla or touch of proof here and there in the record.” Williams,
859 F.2d at 258.
III.

Discussion
Plaintiff moves for reversal or remand of the ALJ’s decision on four

grounds, asserting the ALJ (1) failed to develop the record, (2) failed to perform
an effective analysis of the listed impairments, (3) failed to properly evaluate
Plaintiff’s obesity, and (4) failed to sufficiently evaluate Plaintiff’s pain and mental
impairment.
a. The ALJ Properly Developed the Record
The Plaintiff asserts the ALJ did not sufficiently develop the record.
Specifically, that “with the exception of the document appearing at R. 564-567,
nothing that could be deemed a medical source statement (“MSS”) appears in the
Record from any treating physician or clinician.” (Dkt. No. 21-1 at 1). Plaintiff
states that the presence of one MSS from Dr. McDade does not indicate a fully
developed record due to a lack of medical records from additional treating
physicians indicating the Plaintiff’s functional limitations on a “function-byfunction basis.” Id. at 6.
The Commissioner responds that Dr. McDade’s MSS, combined with a
substantial amount of other medical evidence weighed by the ALJ, formed an
adequately developed record. (Dkt. No. 26 at 13). The Commissioner contends
that Dr. McDade’s MSS indicated “Plaintiff’s ability to stand, stating that she

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could do so for 3-5 minutes at a time, which speaks directly to RFC.” Id. at 14
(citing R. at 565). In the MSS, Dr. McDade answered the question, “is this person
capable of simple, competitive employment at this time. If no, please describe
his/her current symptoms and limitations.” (R. 564). The Commissioner argues
that Dr. McDade’s report indicated Plaintiff’s ability to stand, sit, drive, and do
housework. (Dkt. 26 at 14). Therefore, the Agency’s request for the
comprehensive assessment satisfies the Commissioner’s duty to seek the
records. (Dkt. 26 at 14).
Because a social security disability hearing is non-adversarial, the ALJ
bears responsibility for ensuring that an adequate record is developed. See
Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009); Casin-Ortiz v.
Astrue, 2007 WL 2745704, at *7 (S.D.N.Y. Sept. 21, 2007) (citing Perez v. Chater, 77
F.3d 41, 47 (2d Cir. 1996)). The ALJ must make “every reasonable effort” to help
an applicant obtain medical reports from his medical sources. 20 C.F.R. §§
404.1512(d), 416.912(d). “The record as a whole must be complete and detailed
enough to allow the ALJ to determine the claimant’s residual functional
capacity.” 20 C.F.R. § 404.1513(e)(1)-(3)). Where there are suggestions in the
record that additional, available information would have been helpful to the ALJ’s
determination, the ALJ must attempt to fill the gaps in the record before
discrediting the opinion. Austin v. Astrue, 2010 WL 7865079, *9–10 (D. Conn. Sept.
30, 2010) (citing Perez, 77 F.3d at 47).
“When an unsuccessful claimant files a civil action on the ground of
inadequate development of the record, the issue is whether the missing evidence

17

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, 129 S. Ct. 1696, 1706 (2009).
Plaintiff cites several cases in support of her argument that the record was
not adequately developed. In each of these cases, the records lacked both
medical source statements from treating physicians and substantial evidence
from which the ALJ could assess the claimant’s residual functioning capacity.5
Here, however, the record contains an MSS from a treating physician and other
substantial evidence from which the ALJ assessed Plaintiff’s residual functional
capacity.
In this case, the ALJ took sufficient steps to fully develop the record by
securing a comprehensive analysis by Dr. McDade. (R. 560-67). Dr. McDade
evaluated the Plaintiff for her ongoing back pain on January 12, 2015. (R. 570). In
the medical statement given to the agency, Dr. McDade described Plaintiff’s
limitations including an inability to lift, bend, reach, and a decreased ability to
stand for prolonged periods and perform daily activities. (R. 565). The Agency
requested an assessment indicating the Plaintiff’s specific limitations on basic
functions. While Plaintiff contends that Dr. McDade’s report did not

5

See, e.g., Guillen v. Berryhill, 2017 WL 4279335 (2d Cir. Sept. 27, 2017) (Summary
Order) (cited at Dkt. 21-2 at 7-8) (ALJ failed to fully develop the record because
there were no medical records from treating physicians that indicated the impact
of the plaintiff’s impairment on everyday activity); Blackert v. Berryhill, Civil No.
3:16-cv-1327 (JCH), Ruling, (D. Conn. Jul. 25, 2017) at 10-11 (State agency medical
consultants and ALJ noted that the record did not contain an expert opinion from
a treating physician about the Plaintiff’s ability to work).
18

“meaningful[ly] address her actual functional limitations,” it is sufficient to satisfy
the requirement clarified in 20 C.F.R. § 404.1513(a)(2) stating that “a medical
opinion is a statement from a medical source about what you can still do despite
your impairment(s).” Dr. McDade clearly indicated the Plaintiff’s limitations
including the inability to stand for a period longer than 3-5 minutes, and a
decreased ability to perform “house cleaning, dishes, etc.” (R. 565).
Dr. McDade’s findings regarding Plaintiff’s functional limitations are
corroborated by Dr. Franklin-Zitzkat’s summary. (R. 639-642). Dr. Franklin-Zitzkat
consultatively examined the Plaintiff at the request of the State Agency. Dr.
Franklin-Zitzkat found that Plaintiff’s limitations included standing for long
periods, many household chores, sitting for long periods, bending, lifting, and
exercising. (R. 641). Additionally, Dr. Franklin-Zitzkat found Plaintiff was able to
cook, wash dishes, perform personal care tasks, occasionally push a shopping
carriage while walking through a grocery store, and drive. (R. 641). The
impairments and abilities Dr. Franklin-Zitzkat noted directly validate Dr. McDade’s
MSS. Therefore, the ALJ had a sufficiently comprehensive record to determine
Plaintiff’s residual functional capacity. Plaintiff’s argument that Dr. McDade’s
report is not a sufficient statement of Plaintiff’s functional limitations is without
merit because Dr. McDade’s report is not the only independent source of
Plaintiff’s limitations.
b. The ALJ’s Listed Impairment Analysis
The Plaintiff next contends that the ALJ’s step three listed impairments
analysis is defective. Specifically, Plaintiff argues there is “no analysis of the fit

19

between the specific requirements of the Listings and Plaintiff’s documented
conditions.” (Dkt. No. 21-2 at 12).
The Commissioner asserts that there is substantial evidence supporting
the ALJ’s finding that “Plaintiff was not per se disabled under any of the listings
found in 20 C.F.R. 404, Subpart P, Appendix 1.” (Dkt. No. 26 at 4) (Citing R. 14-15).
“For a claimant to show that his impairment matches a listing, it must meet
all of the specified medical criteria. An impairment that manifests only some of
those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 493
U.S. 521, 530 (1990). The plaintiff bears the burden of producing medical evidence
establishing that she meets the requirements of a listed impairment. Id. In
determining whether a listing has been met or equaled under step three, the ALJ
must consider “all relevant evidence in the case record.” 20 C.F.R. § 404.1525
app. 1, Listing 12.00(D) (2015). The ALJ is required to articulate specific reasons
justifying his decision that the claimant does or does not meet the relevant
listing. See Daniels v. Berryhill, No. 3:16CV01181 (SALM), 2017 WL 2798500, at *7
(D. Conn. June 28, 2017). “Although . . . an ALJ should set forth a sufficient
rationale in support of his decision to find or not to find a listed impairment, the
absence of an express rationale for an ALJ’s conclusions does not prevent [the
Court] from upholding them so long as [the Court is] able to look to other
portions of the ALJ’s decision and to clearly credible evidence in finding that his
determination was supported by substantial evidence.” Salmini v. Comm’r of Soc.
Sec., 371 Fed. Appx. 109, 112 (2d Cir. 2010).

20

The ALJ pointed out the following relevant Listings: Listing 1.04 (Disorders
of the Spine), for her degenerative disc disease, and Listing 4.00 (the various
Cardiac Listings), for her coronary artery disease. (R. 14-15).
Listing 1.04 requires:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine);
OR
B. Spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging,
manifested by severe burning or painful dysesthesia, resulting in the need
for changes in position or posture more than once every 2 hours;
OR
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively, as defined in 1.00B2b.6
To meet Listing 1.04, Plaintiff would need to show the requisite
neurological deficits. 20 C.F.R. § 404, Subpart P, Appendix 1, Listings § 1.04(A),
(C). There were no findings of neurological deficits. Specifically, Dr. Lammers, a
state agency consulting physician, found Plaintiff did not satisfy Listing 1.04 due
to an absence of lower extremity weakness, a type of neurological deficit. (R.
128). Additionally, treating physicians Drs. Jirapinyo, Bogan, McDade, Perdigoto,
Chowdhury, and P.A. Riso all noted on medical visits that Plaintiff was negative
6

20 C.F.R. § 404, Subpart P, Appendix 1, Listings § 1.04(A).
21

for lower extremity weakness. (R. 389, 742, 570, 385, 657, and 919). This
constitutes substantial evidence in support of the ALJ’s conclusion that Plaintiff
did not meet Listing 1.04.
Listing 4.04 requires in pertinent part:
C. Coronary artery disease, demonstrated by angiography (obtained
independent of Social Security disability evaluation) or other appropriate
medically acceptable imaging, and in the absence of a timely exercise
tolerance test or a timely normal drug-induced stress test, an MC,
preferably one experienced in the care of patients with cardiovascular
disease, has concluded that performance of exercise tolerance testing
would present a significant risk to the individual, with both 1 and 2:
1. Angiographic evidence showing:
a. 50 percent or more narrowing of a nonbypassed left main coronary
artery; or
b. 70 percent or more narrowing of another nonbypassed coronary
artery; or
c. 50 percent or more narrowing involving a long (greater than 1 cm)
segment of a nonbypassed coronary artery; or
d. 50 percent or more narrowing of at least two nonbypassed
coronary arteries; or
e. 70 percent or more narrowing of a bypass graft vessel; and
2. Resulting in very serious limitations in the ability to independently
initiate, sustain, or complete activities of daily living.7
In explaining why he concluded the claimant’s hypertension or coronary
artery disease do not satisfy any cardiac listing under Listing 4.00. (R. 15).
Instead, The ALJ noted an absence of objective findings, stating “no treating of
examining physician has indicated findings that would satisfy the severity
requirements of any listed impairments.” (R. 14). Substantial evidence in the

7

20 C.F.R. § 404, Subpart P, Appendix 1, Listings § 4.04(C)
22

record supports the ALJ’s conclusion. Specifically, state agency consulting
physicians Drs. Lammers and O’Neill concluded Plaintiff did not satisfy or meet
any Listing after performing a thorough review of Plaintiff’s medical records. (R.
128). Such “[s]tate agency medical and psychological consultants are highly
qualified physicians and psychologists who are experts in the evaluation of the
medical issues in disability claims under the Act.” SSR 96-6p, 1996 WL 374180,
*1.
In order for Plaintiff to satisfy a Listing under 4.00, she would have to show
that “unless [the] impairment is expected to result in death, it must have lasted or
must be expected to last for a continuous period of at least twelve months.” 20
C.F.R. § 404.1509. Substantial evidence in the record demonstrates that this time
requirement is not met here. For example, on August 30, 2016, Dr. Nathan
predicted Plaintiff would make a full recovery in two weeks from her artery
bypass surgery. (R. 913). Furthermore, Dr. Nathan stated in Plaintiff’s progress
note dated October 7, 2016 that “her shortness of breath, incisional pain and
weakness [have] improved. Today in the office she looks and feels much better.
Her incisional pain and shortness of breath have resolved.” (R. 914). Dr. Nathan’s
progress note constitutes substantial evidence corroborating Dr. Lammers’
finding that Plaintiff did not satisfy or equal and Listings under 4.00, as well as
the ALJ’s decision, because Plaintiff cannot meet the duration requirement.
Of note, Plaintiff did not point out any additional Listings that would apply.
The reports from Drs. Lammers and O’Neill stating Plaintiff does not meet any
listings in combination with all medical evidence not indicating the severity

23

requirements of any listing are met provide an ample basis for the ALJ to
determine the Plaintiff does not meet any listings.
c. The ALJ Properly Evaluated Plaintiff’s Obesity
The Plaintiff next contends that the ALJ did not assign Plaintiff’s obesity
enough weight as a factor to consider a listing met or equaled. (Dkt. 21-2 at 13).
Specifically, Plaintiff argues the ALJ is required to examine all of Plaintiff’s many
problems together. Plaintiff alleges that the combined effects of obesity with
other impairments can be greater than the effects of each impairment considered
separately. (Dkt. 21-2 at 13).
The Commissioner responds that the ALJ acknowledged Plaintiff’s weight
and body mass index (“BMI”) and points out that ALJ and the State Agency
doctors were aware of Plaintiff’s obesity when determining that she did not meet
or equal any Listings. (Dkt. 26 at 12).
“The ALJ is required to consider the effects of obesity in combination with
other impairments throughout the five-step evaluation process. At step three,
obesity can rise to the level of a disabling impairment under certain
circumstances—generally speaking, when it increases the severity of coexisting
impairments, particularly those affecting the musculoskeletal, cardiovascular and
respiratory systems.” Crossman v. Astrue, 783 F. Supp. 2d 300, 309-10 (D. Conn.
2010). The Social Security Policy Interpretations for the Evaluation of Obesity
state that “because there is no listing for obesity, we will find that an individual
with obesity ‘meets’ the requirements of a listing if he or she has another
impairment that, by itself, meets the requirements of a listing. We will also find

24

that a listing is met if there is an impairment that, in combination with obesity,
meets the requirements of a listing.” SSR 02-1p, Evaluation of Obesity.
In this case, the ALJ reiterates that “obesity is no longer considered a
separate impairment, but rather is viewed in combination with listed impairments
as a factor, which could cause a listing to be met or equaled when it would not
otherwise be the case.” (R. 15). The ALJ acknowledged that Plaintiff was obese,
weighing 209 pounds and having a BMI of 34.78. (R. 15). ALJ concluded that “the
evidence fails to establish that the additional impact of the claimant’s excess
weight would cause any relevant listings to be met or equaled.” (R. 14). The ALJ
performed an adequate analysis by evaluating the Plaintiff’s obesity in
conjunction with her back pain and heart issues to determine if any Listings were
met or equaled. The ALJ therefore properly concluded the Plaintiff has not met or
equaled a Listing.
d. The ALJ’s Evaluation of Plaintiff’s Pain was Adequate
Plaintiff next argues that the ALJ did not give sufficient weight to the
Plaintiff’s subjective pain testimony. Particularly, Plaintiff asserts that the ALJ
“discounted [Plaintiff’s pain] to insignificance.” (Dkt. 21-2 at 15). The
Commissioner counters that the ALJ may use discretion in weighing the
credibility of the Plaintiff’s subjective pain testimony with all other evidence on
the record. (Dkt. 26 at 7).
“Pain is an important factor to consider when determining disability.”
Hammock v. Bowen, 867 F.2d 1209, 1213 (9th Cir. 1989). “When determining a
claimant’s RFC, the ALJ is required to take the claimant’s reports of pain and

25

other limitations into account.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
However, the ALJ “is not required to accept the claimant’s subjective complaints
without question; he may exercise discretion in weighing the credibility of the
claimant’s testimony in light of the other evidence in the record.” Id. “In light of
substantial evidence in the record supporting the ALJ's credibility determination,
the court may not second-guess his decision. This applies with particular force in
light of the special deference owed to the credibility determinations of
an ALJ who had the opportunity to observe plaintiff’s demeanor while testifying.”
Marquez v. Colvin, No. 12 CIV. 6819 PKC, 2013 WL 5568718, at *16 (S.D.N.Y. Oct.
9, 2013) (citing Yellow Freight Sys. Inc. v. Reich, 38 F. 3d 76, 81 (2d Cir. 1994).
The ALJ considered the Plaintiff’s subjective pain testimony and found that
the limited daily activities the Plaintiff described could not be “objectively verified
with any reasonable degree of certainty.” (R. 18). The ALJ went on to state that in
addition, “even if claimant’s daily activities are truly as limited as alleged, it is
difficult to attribute that degree of limitation to the claimant’s medical condition,
as opposed to other reasons.” (R. 18). The ALJ determined that Plaintiff’s
repeated descriptions on the record of all the daily activities she still performs are
“contrary to the allegation of a greater level of ongoing functional limitations.”
(R.18). For example, while Plaintiff claims that her pain prevents her from doing
any form of work, Plaintiff stated multiple times she is still able to cook, wash
dishes, shower, and drive. (R. 314, 640).
The ALJ also considered that Dr. McDade indicated that Plaintiff’s pain
allegations were disproportionate to her MRI results. (R. 572). Furthermore, the

26

ALJ considered medical evidence which showed that Plaintiff’s pain was
effectively controlled by medication. (R. 18). The ALJ specifically noted that
Plaintiff refused the physical therapy and pain management suggested by
multiple physicians. (R.17). In addition, the ALJ pointed out evidence of Plaintiff’s
misuse of Tramadol as a possible alternative explanation to the Plaintiff’s pain
testimony not matching the MRI and frequent normal test results. (R. 16-17).
Various courts have held that “[a] claimant's misuse of medications is a valid
factor in an ALJ’s credibility determinations.” Pidkaminy v. Astrue, 919 F. Supp.
2d 237, 250 (2d Cir. 2013). Because the ALJ took Plaintiff’s subjective pain
testimony into consideration with specific, additional medical evidence, the
analysis is adequate.
e. The ALJ’s Vocational Analysis is Adequate
The ALJ found that the Plaintiff’s impairments do not affect her capacity so
much that she is prevented from performing her past relevant work as a radiology
technician. (R. 20). Plaintiff argues that the ALJ’s vocational analysis is
unsupported. Specifically, Plaintiff asserts that the ALJ’s hypothetical is
irrelevant because the suggested activities in the hypothetical have “no basis in
the Record.” (Dkt. 21-2 at 23). The Commissioner argues that there is substantial
evidence to support the ALJ’s finding that “given the RFC, Plaintiff could perform
her past relevant work as a radiology technician.” (Dkt. 26 at 14 (citing R. 19-20)).
“The basic purpose of vocational expert testimony is to determine whether
jobs exist for someone with claimant’s precise disabilities.” Jelinek v. Bowen, 870
F.2d 457, 459 (8th Cir. 1989). “A vocational expert’s testimony is substantial if

27

premised on a well-supported RFC.” Dumas v. Schweiker, 712 F.2d 1545 (2d Cir.
1983).
The ALJ asked the vocational expert to assume a person “with the same age,
education, and work experience as the claimant, and a residual functional
capacity,” and to determine whether such a person could perform the duties of a
radiology technician. (R. 20). The Dictionary of Occupational Titles (“DOT”)
describes the job of “radiology technician” as a “light job.” (R. 19). A “light job”
requires occasional lifting of up to twenty pounds, regular lifting of objects up to
ten pounds, standing, sitting, pushing or pulling of arm or leg controls, and
walking. 20 C.F.R. § 404.1567(b). The vocational expert testified that an individual
with Plaintiff’s age, education, work experience, and RFC would be able to
perform work at a light exertional level, as defined by the DOT. (Tr. 51).
The ALJ then asked the vocational expert to consider someone of
Plaintiff’s age, education, and past relevant work experience “who is limited to
the light exertional level as defined in the Regulations; and has the further
restrictions of the need for only occasional bending and balancing, crawling and
twisting squatting, kneeling and climbing, but no climbing of ladders, ropes, and
scaffolds; and secondly is able to drive.” (R. 50-51).
There is no evidence in the record of a treating physician indicating that
Plaintiff can do any of the additional limitations of the second hypothetical. And it
is unclear on what basis the ALJ concluded that Plaintiff can perform “occasional
bending, balancing, crawling, twisting, squatting, kneeling, and climbing with no
climbing of ropes, ladders or scaffolds.” (R. 15). The relevance of the Claimant's

28

ability to occasionally bend, balance, crawl, twist, squat, kneel, and climb with no
climbing of ropes, ladders or scaffolds, is unclear; however, since these are
additional limitations which the Claimant does not have. Since the vocational
expert opined that an individual with Plaintiff’s age, education, work experience,
and RFC could perform work at a light exertion level, including her past work as a
radiology technician, the ALJ's conclusion that Claimant can perform her past
work is supported by substantial evidence on the record.
Conclusion
For the foregoing reasons, Plaintiff’s Motion to Reverse the
Commissioner’s Decision (Dkt. No. 21) is DENIED and Defendant’s Motion to
Affirm the Decision of the Commissioner (Dkt. No. 26) is GRANTED.
IT IS SO ORDERED.

Vanessa Bryant
2018.09.14 14:53:37
-04'00'
______________________

Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 14, 2018

29