Zoeller v. Berryhill
Filing
30
ORDER granting 23 Motion to Reverse the Decision of the Commissioner; denying 26 Motion to Affirm the Decision of the Commissioner. Signed by Judge Donna F. Martinez on 06/17/19. (Brooks, Lucia)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHIRLEY ANNE ZOELLER,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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CASE NO.
3:18-cv-19(DFM)
RULING AND ORDER
The plaintiff, Shirley Anne Zoeller, seeks judicial review
pursuant to 42 U.S.C. § 405(g) of a final decision by the
Commissioner of Social Security ("Commissioner") denying her
applications for social security disability insurance benefits
and supplemental security income.
The plaintiff asks the court
to reverse the Commissioner's decision.
(Doc. # 23.)
The
Commissioner, in turn, seeks an order affirming the decision.
(Doc.
# 26.)
For the reasons set forth below, the plaintiff's
motion is granted and the defendant's motion is denied. 1
This is not a recommended ruling. The parties consented to
the jurisdiction of a magistrate judge and on May 24, 2017, the
case was transferred to the undersigned. (Doc. # 29.)
1
1
I.
Administrative Proceedings
On July 23, 2014, the plaintiff filed applications alleging
that she had been disabled since September 13, 2013.
397.)
(R 2 at
The plaintiff's applications were denied initially on
September 27, 2014, and upon reconsideration on January 26,
2015.
(R. at 302, 318.)
She requested a hearing before an
Administrative Law Judge ("ALJ") and on June 21, 2016, a hearing
was held at which the plaintiff and a vocational expert
testified.
(R. at 198.)
On August 16, 2016, the ALJ issued a
decision denying the plaintiff’s applications.
(R. at 198.)
The ALJ's decision became final on June 19, 2017, when the
Appeals Council declined further review.
(R. at 188.)
This
action followed.
II.
Standard of Review
The court may reverse an ALJ's finding that a plaintiff is
not disabled only if the ALJ applied the incorrect legal
standards or if the decision is not supported by substantial
evidence.
Cir. 2012).
Brault v. Soc. Sec. Admin., 683 F.3d 443, 447 (2d
In determining whether the ALJ's findings "are
supported by substantial evidence, 'the reviewing court is
2The
administrative record filed by the Commissioner shall be
referred to as "R."
2
required to examine the entire record, including contradictory
evidence and evidence from which conflicting inferences can be
drawn.'"
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)
(quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir.
1983)).
"Substantial evidence is more than a mere scintilla. .
. . It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Brault, 683 F.3d at
447 (quotation marks and citations omitted).
III. Statutory Framework
The Commissioner of Social Security uses the following
five-step procedure to evaluate disability claims:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" which significantly limits his physical or
mental ability to do basic work activities. If the
claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix
1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him
disabled without considering vocational factors such
as age, education, and work experience.... Assuming
the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other
work which the claimant could perform.
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
3
IV.
Plaintiff’s Medical History 3
The medical evidence submitted to the ALJ begins in
February, 2013.
At that time, an MRI of the plaintiff’s lumbar
spine revealed “interval development of Grade II anterolisthesis 4
due to severe facet arthropathy” 5 at L4-5 with “progressive very
severe central canal stenosis 6. . . .
Mild central and foraminal
neural narrowing at L3-4” was also noted.
(R. at 794.)
The
plaintiff received physical therapy in July 2013 for her
”constant 8-10/10 pain in her back with difficulty sitting,
bending and lifting.”
(R. at 795.)
On exam, she displayed
reduced motor strength in her lower extremities and limited
range of motion in her lumbar spine.
(R. at 797.)
3 These facts are undisputed. They are taken from the
parties’ joint stipulation of facts. [Doc. # 23].
4 Anterolisthesis is a spine condition in which the upper
vertebral body slips forward onto the vertebra below.
https://www.spine-health.com/glossary/anterolisthesis.
5
Facet arthropathy is degenerative arthritis which affects
the facet joints of the spine.
https://www.healthline.com/heath/facet-arthropathy.
6
Central canal stenosis occurs when the central spinal
canal is constricted with enlarged ligament and bony overgrowth
causing compression of the spinal cord and cauda equina.
https://mayfieldclinic.com/pe-dten.htm. Cauda equina (literally
“horse’s tail”) is a bundle of spinal nerves and spinal nerve
rootlets at the base of the spinal column near the first lumbar
vertebra. https://www.healthline.com/human-body-maps/caudaequina.
4
Also in July, the plaintiff visited her podiatrist, Dr.
Thomas Domanick, for follow up of recurrent and chronic pain
overlying her second and third toe deformity.
She was diagnosed
with symptomatic hammer digit syndrome in her right second and
third toes. 7
(R. at 509.)
similar presentation.
The following month, she had a
(R. at 510-11.)
On July 15, 2013, the plaintiff presented to Dr. Francis
Alcedo, an internist and plaintiff’s primary care provider, with
a specialty in internal medicine, with an exacerbation of her
spinal stenosis.
walking.
Dr. Alcedo noted that she had difficulty
(R. at 42.)
He prescribed a trial of prednisone for
the spinal stenosis-related back pain.
(R. at 544.)
In the fall, the plaintiff stopped working.
She alleges an
onset of disability as of September 13, 2013, the last date she
engaged in substantial gainful activity.
On September 16, 2013, the plaintiff visited Dr. Richard
Blum, an orthopedic surgeon, for evaluation of her spinal
stenosis.
He noted that she “was doing quite well with a little
discomfort.”
She displayed a normal straight leg raise on
7 Hammer toe syndrome is a condition characterized by a
series of interrelated digital symptoms and joint changes of the
lesser digits and metatarsophalangeal joints of the foot.
https://www.ncbi.nlm.nih.gov/medgen/209711.
5
examination.
Dr. Blum observed that her spinal stenosis at L4-5
was the problem and that any surgery would be extensive, likely
involving fusion.
(R. at 1100.)
In September 2013, the plaintiff had additional physical
therapy for her spinal stenosis. (R. at
717.)
Her pain pre-
treatment was rated 6/10 and post treatment was rated 4/10.
She
reported that she felt better after her last session, but had
some continued tingling and numbness in the second toe of her
left foot.
(R. at 717-18.)
On October 4, 2013, the plaintiff returned to Dr. Blum
complaining of numbness in the fourth and fifth toes of her left
foot. On exam, her pinprick sensation was intact.
Dr. Blum
stated that “[s]he has severe spinal stenosis of the lower
lumbar spine.”
(R. at 1101.)
Also in October 2013, the plaintiff went to Dr. Vito
Errico, a radiologist, for an MRI.
Her record states that she
had spinal stenosis-induced back pain that had been bothering
her consistently since the first week of July 2013, and
occasional foot numbness.
was intact.
On examinations, her motor function
Dr. Errico noted that her MRI showed
spondylolisthesis 8 which was likely the cause of her back pain.
8
Spondylolysis is a crack or stress fracture in one of the
6
Epidural steroid injections were recommended. (R. at 512.)
On
the same day, Dr. Charles Moore, of Yale New Haven Health, noted
that the plaintiff had no neurological deficits and had normal
sensation.
He saw that she could balance on one leg, heel-walk,
toe-walk, and walk tandem.
(R. at 724.)
At the end of October 2013, the plaintiff was discharged
from physical therapy with on-going issues of right foot and
calf numbness as well as right leg weakness.
Clinical
impairments of hypermobility and poor stability were noted.
(R.
at 798-99.)
Also at the end of October, the plaintiff presented to
Connecticut Retina Consultants with loss of vision, blurriness
and cloudiness.
She reported having a harder time recovering
from bright light in both eyes.
waxy disc pallor was noted.
There was no edema and trace
“Left greater than right areolar
granular atrophy” was observed as well as “no recurrence of
vertebrae. When the stress fracture weakens the bone to the
extent it is unable to maintain its proper position in the spine
and the vertebra starts to shift or slip out of place, the
condition is called spondylolisthesis.
https://orthoinfo.aaos.org/diseases-conditions/spondylolysisand-spondylolisthesis.
7
Her retinal pigmentosis 9 appeared clinically
iritis.”
stationary.
She was continued on Restasis. 10
(R. at 556-57.)
On November 5, 2013, the plaintiff had an epidural steroid
injection for lumbar radiculopathy and back pain.
(R. at 513.)
In November of 2013, the plaintiff experienced a severe
increase in pain and weakness in her both legs which made it
difficult for her to stand and walk.
The pain had gotten
slightly better since restarting physical therapy, but not
significantly, and she felt that she had taken huge steps
backwards.
(R. at 828.)
On exam, she displayed weakness in
multiple lower extremity muscle groups.
continued physical therapy.
(R. at 829.)
She
(R. at 832.)
The plaintiff returned to Dr. Blum, her orthopedist, on
November 21, 2013 with continued complaints of pain in her lower
back.
She had suffered an adverse reaction to a cortisone
injection.
She had numbness in the left gluteal area, rectum,
9
Retinitis pigmentosa is a group of rare, genetic disorders
that involve a breakdown and loss of cells in the retina, the
light-sensitive tissue that lines the back of the eye. Symptoms
include loss of peripheral vision and difficulty seeing at
night. https://nei.nih.gov/health/pigmentosa/pigmentosa_facts.
10
Restasis is an ophthalmic emulsion that helps to increase
the eye’s natural ability to produce tears, which may be reduced
by inflammation due to chronic dry eye.
https://www.restasis.com.
8
down the left leg, and in the foot.
heels and toes.
She was able to walk on her
(R. at 1102.)
In December 2013, the plaintiff reported to her physical
therapist that both her feet felt like she was walking on water.
She rated the pain in her hips and legs at 6/10.
(R. at 836.)
In physical therapy later that month, the plaintiff said
that she felt generally the same.
On exam, she displayed
reduced motor strength in several muscle groups including only
3+/5 strength in her left hip with abduction and extension, 4/5
internal and external rotation, and 4/5 strength with knee
extension.
(R. at 728).
feet were still numb.
She was making progress, but both her
(R. at 729.)
The plaintiff reported that
ambulating in grocery stores increased her symptoms.
(R. at
732.)
On January 12, 2014, the plaintiff presented to Advanced
Radiology with increased lower back pain and left buttock pain.
Her updated MRI showed “marked” narrowing of the L4-5 disc space
with first degree spondylolisthesis at that level.
The report
noted that “[a]t L4-5 also marked bilateral facet joint
arthropathy with associated marked central and bilateral recess
stenosis.
Moderate bilateral foraminal stenosis is also seen at
9
L4-5.”
The diagnosis was “[m]arked spinal stenosis L4-5.”
(R.
at 570.)
The plaintiff continued physical therapy in February 2014.
She displayed 4-5/5 strength in her extremities and was
described as doing “fair.”
(R. at 863.)
By the end of March 2014, she had met her physical therapy
goal of ambulating for 30 minutes, but still experienced pain
walking around a grocery store.
(R. at 740.)
In April 2014, the plaintiff returned to the eye doctor for
treatment of her retinal pigmentosis and other eye impairments.
Pseudophakia 11 was noted in both eyes.
(R. at
764.)
The plaintiff saw Dr. Alcedo, her primary care provider,
again on April 18, 2013.
She told him that, for the past six
months, she had experienced light headedness and vertigo when
lying down.
(R. at 627-29.)
On May 20, 2014, the plaintiff returned to Dr. Errico, her
treating radiologist, for an epidural consult, and explained
that she felt no pain relief from her prior steroid injection
and that her back pain continued to radiate into her left leg.
11
Pseudophakia means “fake lens.” The term refers to the
implanting of an intraocular lens to replace a natural lens.
https://nei.nih.gov/faqs/cataract/pseudophakia.
10
She said her right leg had been “giving out.”
Dr. Errico
observed that her MRIs confirmed the presence of anterior
spondylolisthesis of L4-5 and “at that level there is severe
spinal canal stenosis as well as nerve root clumping.”
His
assessment was “[s]ignificant lower back pain with left and
right-sided radiculopathy most likely secondary to the severe
focal canal stenosis at L4-5.”
and told to see a surgeon.
She was given Tramadol 12 for pain
(R. at 514.)
In July 2014, the plaintiff slipped and fell, inverting her
right ankle and landing on her left knee.
She had significant
pain in her right ankle and difficulty ambulating.
There was
swelling and tenderness over the malleolus on exam, but no
fracture showed on X-ray.
She was prescribed ice as needed for
pain, an air cast, and a cane for comfort.
(R. at 524-25.)
On September 18, 2014, Dr. Jeanne Kuslis, a non-examining
physician working for the state agency making initial and
reconsideration disability determinations for Social Security,
opined that the plaintiff could perform light work with postural
limitations.
(R. at 262.)
12
Tramadol is an opiate (narcotic) analgesic that is used
to relieve moderate to moderately severe pain.
https://www.mayoclinic.org/drugs-supplements/tramadol.
11
On September 29, 2014, the plaintiff visited Dr.
David
Brown, an orthopedic surgeon.
Dr. Brown’s notes
described the plaintiff’s
long history of low back pain dating [back] more than
eight years. In 2007, she was treated by Dr. Anand [a
specialist in anesthesiology and pain medicine] for a
disc herniation with a lumbar epidural cortisone
injection. She was able to resume work through 2010,
when symptoms became more severe. She was treated by
Dr. Errico with another lumbar epidural cortisone
injection.
Symptoms seemed to become more severe
about one year ago and she tried Celebrex 13 without
improvement. Ultimately, she consulted an orthopedist,
Dr. Blum, and [an] MRI examination of the lumbar spine
was performed demonstrating evidence of spinal
stenosis at the L4-L5 level. Despite restricted
activities, she is aware of increasing back pain
limited [sic] her ability to walk more than 5 to 10
minutes at a time without developing a sense of
prominent leg pain associated with some sense of
numbness to the feet. The patient remains out of work
through the present date and informs me she will be
applying for Social Security disability.
(R. at 615.)
Dr. Brown’s examination showed the plaintiff was able to
walk without antalgia and had prominent midline low back pain on
forward flexion beyond 60 degrees.
were accompanied by midline pain.
intact.
Rotation and side bending
Her motor strength was
Bilateral straight leg raise tests resulted in back
13
Celebrex is a non-steroidal anti-inflammatory drug
(NSAID), specifically, a cox-2-inhibitor which relieves pain and
swelling. It is used to treat arthritis and acute pain.
https://www.webmd.com/drugs/2/drug-16849/celebrex-oral/details.
12
pain.
Though her imaging revealed marked spinal stenosis, she
did not want surgery or further injections.
the plaintiff’s anti-inflammatory medication.
Dr. Brown continued
There was no
referred pain patter or prominent neurologic deficit; she had
intact sensation and her deep tendon reflexes were active.
(R.
at 616.)
In October 2014, the plaintiff returned to Connecticut
Retina Consultants with complaints of loss of vision, blurriness
and foggy vision.
eyes.
She also had flashes and floaters in both
Examination showed her right eye had a flattish contour
and no evidence of edema.
Her doctor observed that “[t]he
[retinal pigmentosis] itself appears clinically stationary, but
slow progression is likely and is likely the cause of her visual
symptoms.”
(R. at 609.)
A few weeks later, the plaintiff
returned to her retinal specialist with complaints of blurred
vision.
On exam, the doctor noted macular puckering 14 with a
cloudy right eye.
(R. at 754.)
The plaintiff saw her orthopedist, Dr. Brown, again in
October 2014 with complaints of ongoing low back pain.
14A
There
macular pucker is scar tissue that has formed on the
eye’s macula, located in the center of the light-sensitive
tissue called the retina. A macular pucker can cause blurred
and distorted central vision.
https://nei.nih.gov/health//pucker.
13
was no prominent leg pain, numbness, or paresthesias.
The
plaintiff asked for more conservative treatment and did not want
further epidurals.
On exam, she displayed good mobility of the
lumbar spine and no prominent neurologic deficit.
She had Grade
I spondylolisthesis, L4-5, with moderate foraminal stenosis.
She wanted to avoid surgery and was given Celebrex.
(R. at
614.)
On April 14, 2015, the plaintiff treated with her
podiatrist for painful, chronic ingrown bilateral hallux nails.
She had not responded to conservative care.
erythema 15 and reduced pulses.
Her exam showed
(R. at 977.)
The plaintiff visited her retinal specialist again on May
4, 2015, complaining of vision and blurriness.
There were
associated symptoms of occasional flashers and floaters in both
eyes.
Her retinal pigmintosis had not progressed, but the
doctor thought it likely was the cause of her visual symptoms,
especially at night.
Again, her exam was positive for areolar
pigmentary changes in the macula.
(R. at 9 959-61.)
Erythema is a red discoloration of the skin caused by
infectious agents, inflammation, drug hypersensitivity, or
underlying disease.
https://www.ncbi.nlm.gov./medgen/?term=erythema.
15
14
In November 2015, the plaintiff received treatment for
hammertoes and other foot abnormalities.
(R. at 985.)
The following month, the plaintiff returned to her eye
doctor complaining of issues with cloudy vision and sensitivity
to light.
(R. at 997; 1002.)
In December of 2015, she received treatment for positional
vertigo.
(R. at 930.)
In a January 12, 2016 questionnaire, the plaintiff stated
that she did yoga, washed laundry, and cleaned.
14).
(R. at 1111-
She also stated that she had a history of vertigo when she
rolled onto her left side and that Dr. Hewitt performed a
maneuver for this issue which usually had a good result.
(R. at
1114.)
In February 2016, the plaintiff returned to Dr. Domanick,
her podiatrist, complaining of pain in both feet.
He noted that
she had already undergone steroid injections for Morton’s
neuroma, and though the injections helped, the pain had
returned, on the right greater than the left.
Her feet hurt
with prolonged walking and she had acquired hallux valgus of
both feet.
(R. at 988-899.)
On February 29, 2016, the plaintiff returned to her eye
doctor with complaints of blurred vision in her right eye which
15
had gotten worse since her last visit.
Floaters and flashes
were noted in both eyes, and had worsened in the right eye over
the last couple of months.
right eye occasionally.
She was suffering sharp pain in her
Light sensitivity was present in both
eyes and she sometimes felt as if she were “looking through a
fog.”
Her exam showed trace waxy disc pallor, no edema and
areolar atrophy.
“Her light sensitivity complaints OD [in her
right eye] I believe are most likely exposure related despite
her Restasis use and punctual plugs.”
Again, the doctor noted
that her retinal pigmintosis was stationary but that slow
progression was likely.
(R. at 770-71.)
The plaintiff returned to her podiatrist in April 2016 for
treatment of her Morton’s neuroma, acquired hallux valgus, and
hammertoes.
(R. at 992.)
Again in April 2014, the plaintiff saw Dr. Alcedo, her
internist, for chronic issues including numbness of the left arm
and both feet.
In May 2016, her medical issues included
lumbosacral neuritis or radiculitis and spinal stenosis of
lumbar region without neurogenic claudication.
(R. at 1082;
1094.)
On June 23, 2016, Dr. Alcedo rendered his medical opinion
regarding the plaintiff’s functional limitations.
16
He found that
her lifting was limited to less than 10 pounds and that she
could stand and walk at least 2 hours in an 8 hour workday and
sit less than 6 hours in an 8 hour day.
With regard to her
postural limitations, she could occasionally climb, balance,
kneel, crouch, crawl and stoop.
Her manipulative abilities
were limited to occasional reaching, handling and fingering.
Dr. Alcedo noted that he first treated her in December of 2014,
most recently treated her on May 23, 2016, and that these
limitations were applicable since December 2015.
(R. at 1095-
1098.)
The ALJ issued her ruling denying benefits on August 16,
2016 and it became final on June 19, 2017.
Following the ALJ’s
ruling, the plaintiff again visited Dr. Brown, her orthopedic
specialist, on August 29, 2016.
His report of the visit
included a history of her back condition and functionality, and
his observations, assessments, and medical opinion.
Specifically, he stated that the plaintiff “was positive for and
had a long history of low back and bilateral leg pain with grade
I spondylolisthesis of L4-L5 in 2014.
She had noted progressive
back and leg pain limiting her ability to walk no more than 1520 minutes at a time or sit for no more than 20 minutes at a
time before experiencing an increase in back and leg pain.
17
She
had not been able to work since 2013 due to chronic back pain.
She felt her symptoms were becoming more prominent with
increased pain leading to shorter periods of walking or
standing.”
On exam, Dr. Brown observed that “[s]he is walking
without a prominent antalgic gait.
There is limited mobility of
the lumbar spine due to complaints of back pain and a sense of
stiffness.
Bilateral straight leg raising is primarily
associated with an increase in back pain.
There seems to be
good motor strength bilaterally and no prominent neurologic
deficit.”
X-ray showed “prominent” disc space narrowing at the
L4-5 level.
His assessment was “spondylolisthesis of L4-5” and
“chronic low back pain syndrome, probable central canal and
foraminal stenosis.”
Functionally, he concluded that “the
patient clearly is not capable of working in any job capacity
requiring even short periods of walking, standing, or sitting;
and she clearly cannot perform any activity involving bending or
lifting even light objects.
For all practical purposes, the
patient is permanently and totally disabled for gainful
employment.”
((R. at 78.)
Dr. Brown rendered a more formal opinion on the plaintiff’s
condition and limitations on October 27, 2016.
He said he had
treated her since September 29, 2014 and last saw her on August
18
29, 2016.
He opined that she was limited to less than 10 pounds
of lifting, and that her impairments affected her ability to
stand and walk no more than 15 to 20 minutes at a time, and to
sit for no more than 20 minutes at a time.
climb, bend, kneel crouch, crawl, or stoop.
She could never
occasionally.
She could reach
of his opinion.
Dr. Brown attached treatment records in support
(R. at 75-78.)
In January 2017, the plaintiff had an MRI of her cervical
spine that revealed loss of disc height at C5-6 and C6-7 with
slight flattening of the spinal cord secondary to degenerative
changes.
No significant neuroforaminal stenosis was noted.
There was mild left neural foraminal narrowing at C6-7 and
microvascular ischemic disease shown on her brain MRI.
38-39.)
(R. at
In another MRI performed in June 2017, the plaintiff’s
condition at L4-5 was described as “very severe central canal
stenosis.”
“Neural foramen again noted to be elongated and
mildly narrowed bilaterally.”
(R. at 17.)
Finally, on August 17, 2017, the plaintiff underwent lumbar
fusion surgery with Dr. Brown.
V.
(R. at
11.)
The ALJ’s Decision
Following the five-step evaluation process, the ALJ found
that the plaintiff met the insured status requirements of the
19
Social Security Act through September 30, 2015, and had not
engaged in substantial gainful activity since her alleged onset
date of September 13, 2013.
(R. at 201.)
At step two, the ALJ
concluded that the plaintiff had severe impairments of
degenerative disc disease of the lumbar spine and benign
paroxysmal vertigo.
(Id.)
The ALJ found that the plaintiff’s
alleged conditions of retinal pigmentosis, hypertension, and a
right ankle sprain were not severe impairments.
(Id.)
At step three, the ALJ found that the plaintiff did not
have an impairment, either alone or in combination, that met or
medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, App’x 1.
(R. at 203.)
In making this
determination, the ALJ specifically considered listing 1.04,
disorders of the spine, and noted there was no evidence of nerve
root compression, motor loss or spinal arachnoiditis or lumbar
spine stenosis.
(R. at 204.)
The ALJ next determined that the plaintiff had the residual
functional capacity (RFC) 16 to perform sedentary work as defined
Residual functional capacity (RFC) is an assessment of “the
claimant’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis. It is the most [the claimant] can still do despite [his or
her] limitations.” 20 C.F.R. § 404.1545(a)(1).
16
20
in 20 C.F.R. § 404.1567(a) and § 416.967(a), 17 except that she
can frequently climb ramps and stairs, never climb ladders,
ropes and scaffolding; occasionally balance and stoop;
frequently kneel, crouch and crawl; and, due to her complaints
of poor vision, she is limited to occasional close work.
204.)
(R. at
The ALJ explained that, in reaching this opinion, she
“considered opinion evidence in accordance with the requirements
of 20 CFR §§ 404.1527 and 416.927 and SSR 96.2p, 96-5, 96-6p,
and 06-3p.” (R. at 204.)
As to the plaintiff’s credibility, the
ALJ found that the plaintiff’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms, but that her statements concerning the intensity,
persistence, and limiting effects of these symptoms were not
consistent with the medical and other evidence in the record.
(R. at 205.)
At step four, the ALJ concluded that the plaintiff was
capable of performing her past relevant work as a telephone
operator. (R. at 206-07.)
The ALJ was persuaded by the
Sedentary work involves lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools.
Although a sedentary job is
defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally
and other sedentary criteria are met. 20 C.F.R. § 404.1567(a).
17
21
testimony of the vocational expert who testified that the
plaintiff’s work as a telephone operator (Dictionary of
Occupational Titles 235.662-022), is semi-skilled (SRP 3) work
performed at the sedentary exertional level and that the
plaintiff’s additional restriction of occasional reading or
close work did not preclude that job.
(Id.)
The ALJ concluded that the plaintiff had not been under a
disability, as defined in the Social Security Act, from
September 13, through the date of the decision, 20 C.F.R. §
404.1520(f) and § 416.920(f), and was not disabled under section
1614(a)(3)(A) of the Social Security Act.
(Id.)
After the ALJ’s decision, the plaintiff submitted new
medical evidence to the Appeals Council, including numerous
medical records that were not previously available to the ALJ,
as well as medical source opinions from her treating orthopedic
surgeon.
The Appeals Council included the evidence in the
administrative record, but declined to consider it.
(R. at 188-
89.)
V.
Discussion
Additional Evidence Not Considered By Appeals Council
The plaintiff argues that the defendant improperly refused
to consider the additional evidence she submitted to the Appeals
22
Council, specifically, the opinions and supporting clinical
notes of the plaintiff’s treating orthopedic surgeon.
The
defendant argues that the plaintiff did not meet the
requirements for submitting the additional evidence.
The Appeals Council is required to consider additional
evidence if it is new, material, relates to the period on or
before the date of the hearing decision, and there is a
reasonable probability that it would change the outcome of the
ALJ’s decision.
20 C.F.R. § 404.970(a)(5).
In addition, there
must be a showing of good cause, i.e., either (a) the SSA misled
the claimant, (b) some impairment prevented timely submission of
the evidence, or (3) some other circumstance beyond claimant’s
control prevented timely submission. 20 C.F.R. 404.970(b); see
also Ebert v. Berryhill, No. 16-cv-1386(WIG), 2018 WL 3031852,
at * 8 (D. Conn. June 19, 2018).
Good cause exists when the
plaintiff shows some “unusual, unexpected, or unavoidable
circumstance beyond her control that prevented her from
submitting the evidence earlier.”
Orriols v. Colvin, No. 14-cv-
863 (SRU), 2015 WL 5613153, at *3 (D. Conn. Sept. 4, 2015).
The good cause requirement is not at issue here.
The
Appeals Council advised the plaintiff by letter that it found
good cause existed for the additional evidence she submitted.
23
Because your case was pending at the Appeals
Council before our rule about when to give us evidence
became effective, we will find that you showed good
cause for not submitting additional evidence earlier.
We will find that some other unusual, unexpected, or
unavoidable circumstance beyond your control prevented
you from telling us about or giving us the evidence
earlier. We will make this good cause finding for
additional evidence that you have already submitted
and for additional evidence that you submit before we
issue our action in your case.
(R. at 30-31.)
The remaining question is whether the plaintiff met the
other requirements for submitting additional evidence to the
Appeals Council. i.e., that it was new, material, relates to the
period at issue, and shows a reasonable probability of changing
the outcome of the hearing decision.
New evidence is any
evidence that has not been considered previously during the
administrative process.
Pollard v. Halter, 377 F.3d at 193.
Evidence that “is cumulative to that already contained in the
record prior to the ALJ’s decision is, by definition, not new
and need not be considered.”
McIntyre v. Astrue, 809 F. Supp.2d
at 20.
The plaintiff has shown that the additional evidence was
“new.”
It was previously unavailable, and was not cumulative to
the evidence before the ALJ.
At the time the ALJ issued her
decision, the record did not contain any opinion from the
24
plaintiff’s treating orthopedic surgeon.
The plaintiff’s new evidence relates to the period on or
before the date of the ALJ’s decision.
Even a cursory review
shows the evidence relates to the same back and leg issues that
existed before the date of the ALJ’s decision.
reports suggest they concern new conditions.
18
Nothing in the
See Lofton v.
Berryhill, NO. 17-cv-6709 (JWF), 2019 WL 1244055, at *3
(W.D.N.Y. March 18, 2019) (finding error where appeals council
summarily rejected medical source opinion without analyzing
whether it pertained to the plaintiff’s existing condition where
it contained nothing to suggest it concerned a new condition).
Finally, the plaintiff’s additional evidence is material
because it is both “relevant to the claimant’s condition during
the time period for which benefits were denied and probative.”
Del Carmen Fernandez v. Berryhill, 2019 WL 667743, at *11.
The plaintiff does not claim that the Appeals Council erred
in declining to consider the additional evidence that was
duplicative of evidence in the record. She also does not claim
error in the Appeals Council’s refusal to consider evidence
relating to the plaintiff’s condition after the date of the ALJ’s
August 16, 2016 decision.
Indeed, such evidence would not be
admissible because it would have had no bearing on whether the
plaintiff was disabled at the time of the ALJ’s decision. That
evidence would only be relevant if the plaintiff filed a new
application alleging a disability since the date of the decision.
Quintana v. Berryhill, No. 18-cv-561 (KHP), 2019 WL 1254663, at
*15 (S.D.N.Y March 19, 2019).
18
25
Evidence is probative if there is a “reasonable possibility that
[it] would have influenced the [ALJ] to decide the claimant’s
application differently.”
Patterson v. Colvin, 24 F. Supp.3d
356, 372 (S.D.N.Y. 2014)).
Here, the additional evidence is material and probative
because it consists of the medical opinion and treatment notes
of the plaintiff’s orthopedic surgeon relating to her condition
during the time at issue.
193.
See Pollard v. Halter, 377 F.3d at
Indeed, the medical opinion of the plaintiff’s orthopedic
surgeon is highly probative and is entitled to great, if not
controlling, weight pursuant to the treating physician rule. 19
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (noting that
opinion evidence from a treating physician must be given
controlling weight if it is supported by medically acceptable
clinical and diagnostic and laboratory evidence and is not
inconsistent with other evidence); Halloran v. Barnhart, 362
F.3d 28, 32 (2d Cir. 2004); see also 20 C.F.R. § 404.1527 (c)(5)
19
The Social Security Act and the regulations regarding the
treating physician rule were amended effective March 27, 2017.
The court reviews the ALJ’s decision under the earlier
regulations because the plaintiff’s application was filed before
the new regulations went into effect. Maloney v. Berryhill, No
16-cv-3899 (ADS), 2018 WL 400722, at *1 (E.D.N.Y. Jan. 12, 2018)
(citing Lowry v. Astrue, 474 Fed. App’x 801, 805 n.2 (2d Cir.
2012)).
26
(stating more weight is given to the opinion of a medical
specialist about medical issues in his area of specialty than
the weight given to the opinion of a non-specialist).
The
Appeals Council’s rejection of the evidence without any
substantive analysis pursuant to the treating physician rule was
error.
Lebow v. Astrue, 2015 WL 1408865, at *7-7 (S.D.N.Y.
March 9, 2015)(holding that the Appeals Council’s “failure to
evaluate the additional evidence in the manner required by the
treating physician rule was legal error.”); McIntyre v. Astrue,
809 F. Supp.2d 13, 22 (D. Conn. 2010) (noting that the Appeals
Council’s failure to evaluate new evidence according to the
applicable regulations and give reasons for its decision not to
credit it is legal error).
Because this new evidence was never considered by the ALJ,
the “proper course for the reviewing court is to remand the case
for reconsideration in light of the new evidence.”
Astrue, 608 F. Supp.2d 297, 302 (D. Conn. 2009);
Shrack v.
Garcia v.
Comm’r Soc. Sec., 208 F. Supp.3d 547, 552 (S.D.N.Y. 2016);
Collazo v. Colvin, 13-cv-5758 (RJS) (HBP), 2015 WL 9690324, at
*13 (S.D.N.Y. Dec. 22, 2015) (noting that the Appeals Council is
bound by the treating physician rule and its boilerplate reason
for not considering such evidence did not satisfy the
27
requirement that the Commissioner give good reasons for
rejecting such opinion evidence).
The new evidence submitted to
the Appeals Council is now part of the record and must be
considered on remand.
E.g., Warton v. Berryhill, No. 17-cv-1247
(LTS/BCM), 2018 WL 5619961, at *18 (S.D.N.Y. Aug. 14, 2018).
Other Claimed Errors
The plaintiff also argues that (1) the ALJ erred in failing
to perform a function by function assessment of the plaintiff’s
relevant and contested functions of standing, walking, and
sitting; and (2) the ALJ erred in failing to reconcile and
obtain an explanation for a conflict between the vocational
expert’s testimony and the Dictionary of Occupational Titles
(DOT) concerning the visual acuity requirements of the
plaintiff’s past relevant work. 20
In light of the foregoing, the
court need not address the plaintiff’s other arguments because
“upon remand and after a de novo hearing [the ALJ] shall review
With respect to the plaintiff’s claim that the ALJ erred in
failing to identify and explain an apparent conflict between the
vocational expert’s testimony and the DOT requirement pertaining
to the visual acuity required for the telephone operator job, the
court notes that the Second Circuit recently ruled that a
vocational expert’s testimony cannot constitute substantial
evidence if it contains an apparent or obvious conflict with the
DOT. In that event, the ALJ has an affirmative obligation to
identify and elicit a reasonable explanation for the conflict
before she can rely on the vocational expert’s testimony. Lockwood
v. Comm’r Soc. Sec., 914 F.3d 87, 91-92 (2019).
20
28
this matter in its entirety.”
Delgado v. Berryhill, No. 17-cv-
54(JCH), 2018 WL 316198, at *15 (quoting Koutrakos v. Astrue,
No. 3:11CV306(CSH)(JGM), 2012 WL 1283427, at *7 (D. Conn. Jan.
9, 2012), report and recommendation adopted, 906 F. Supp.2d 30
(D. Conn. 2012)).
V. Conclusion
For these reasons, the plaintiff's motion to reverse and/or
remand the Commissioner's decision (doc. #23) is granted and the
defendant's motion to affirm the decision of the Commissioner
(doc. #26) is denied.
SO ORDERED at Hartford, Connecticut this 17th day of June,
2019.
_________/s/_________________
Donna F. Martinez
United States Magistrate Judge
29
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