Clarkson v. Berryhill

Filing 32

ORDER granting 26 Motion to Reverse the Decision of the Commissioner; denying 29 Motion to Affirm the Decision of the Commissioner. See attached ruling, 18 pages. Signed by Judge Robert A. Richardson on 3/3/20. (Ferriter-Russo, Emily)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
:
:
:
:
:
:
:
:
:
:
:

LEEANN CLARKSON,
plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER
OF SOCIAL SECURITY, 1
defendant.

CASE NO. 3:18-cv-00477(RAR)

RULING ON PENDING MOTIONS
Leeann Clarkson (“plaintiff”) appeals the final decision of
the Commissioner of Social Security (“the Commissioner”)
pursuant to 42 U.S.C. § 405(g).

The Commissioner denied

plaintiff’s application for Social Security Disability Benefits
in a decision dated February 5, 2018.
to this court.

Plaintiff timely appealed

Currently pending are plaintiff’s motion for an

order reversing and remanding her case for a hearing (Dkt. #262) and defendant’s motion to affirm the decision of the
Commissioner.

(Dkt. #29-1.)

For the reasons that follow, the plaintiff’s motion to
reverse, or in the alternative, remand is GRANTED and the
Commissioner’s motion to affirm is DENIED.

1

Andrew Saul is the new Commissioner of Social Security and has
been added as a party automatically.

STANDARD
“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 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 and 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 her 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.
Cir. 1982).

Berry v. Schweiker, 675 F.2d 464, 467 (2d

Further, 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.
Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

2

Schauer v.

The Second Circuit has defined substantial evidence as
“‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’”

Williams on Behalf of

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.

The Social Security Act (“SSA”) provides that benefits are
payable to individuals who have a disability.
423(a)(1).

42 U.S.C. §

“The term ‘disability’ means . . . [an] inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment. . . .”
U.S.C. § 423(d)(1).

42

In order to determine whether a claimant is

disabled within the meaning of the SSA, the ALJ must follow a
five-step evaluation process as promulgated by the Commissioner. 2

2

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 or her 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
3

In order to be considered disabled, an individual’s
impairment must be “of such severity that he is not only unable
to do his 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).

“[W]ork which exists in

the national economy means work which exists in significant
numbers either in the region where such individual lives or in
Id. 3

several regions of the country.”

PROCEDURAL HISTORY
Plaintiff initially filed for disability insurance benefits
under Title II and Title XVI on November 24, 2014.

(R. 268.) 4

Plaintiff alleged a disability onset date of July 16, 2013.
268.)

(R.

At the time of application, plaintiff alleged that she

suffered from Bipolar disorder, vertigo, lower back problems,
thyroid problems, headaches, and blurry vision.

(R. 171.)

The

initial application was denied on August 19, 2015, and again

Commissioner then determines whether there is other work which
the claimant could perform. The Commissioner bears the burden
of proof on this last step, while the claimant has the burden on
the first four steps. 20 C.F.R. § 416.920(a)(4)(i)-(v).
3

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.
4

The Court cites pages within the administrative record as “R.
___.”
4

upon reconsideration on November 30, 2015.
211.)

(R. 170–191, 194–

Plaintiff then filed for an administrative hearing which

was held by ALJ Eskunder Boyd (hereinafter the “ALJ”) on May 8,
2017.

(R. 80-119.)

July 10, 2017.

The ALJ issued an unfavorable decision on

(R. 7–21.)

On August 24, 2017, plaintiff sought

a review by the Appeals Council, which was denied on February 5,
2018.

(R. 1-5.)

judicial review.

Plaintiff then filed this action seeking
(Dkt. #26-2.)
DISCUSSION

Plaintiff asserts that the ALJ’s RFC determination is not
supported by substantial evidence and the ALJ failed to develop
the record.

(Pl. Br. 18, 21.)

Based on the following, the

Court finds that the ALJ failed to develop the record.

The

Court therefore remands the case to the commissioner for further
administrative procedure consistent with this ruling.
I.

The ALJ Failed to Develop the Record
Plaintiff asserts that the ALJ failed to develop the record

by failing to obtain an opinion from any treating physician and
various medical records from several treating sources.

The

Court agrees.
An ALJ has the affirmative duty to develop the record “in
light of ‘the essentially non-adversarial nature of a benefits
proceeding.’”

Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)

(quoting Echevarria v. Secretary of HHS, 685 F.2d 751, 755 (2d

5

Cir. 1982)); see also Swiantek v. Commissioner, 588 F. App’x 82,
83-84 (2d Cir. 2015).

“When an unsuccessful claimant files a

civil action on the ground of inadequate development of the
record, the issue is whether the missing evidence is
significant.”

Santiago v. Astrue, No. 3:10-cv-937(CFD), 2011 WL

4460206, at *2 (D. Conn. Sept. 27, 2011) (citing Pratts v.
Chater, 94 F.3d 34, 37–38 (2d Cir. 1996)).
a. The ALJ was required to obtain opinion evidence from
plaintiff’s treating physicians.
A court must remand “where ‘the medical records obtained by
the ALJ do not shed any light on the [claimant's RFC], and
[where] the consulting doctors did not personally evaluate’ the
claimant.”

Martinez v. Berryhill, No. 3:17-cv-843 (SRU), 2019

WL 1199393, at *11 (D. Conn. Mar. 14, 2019) (quoting Guillen v.
Berryhill, 697 F. App'x 107, 108-09 (2d Cir. 2017) (summary
order)).

“The record is insufficient when ‘[t]he medical

records discuss [the claimant’s] illnesses and suggest treatment
for them, but offer no insight into how [the] impairments affect
or do not affect [the claimant’s] ability to work, or [his]
ability to undertake the activities of daily life.’”

Martinez,

2019 WL 1199393, at *11 (alterations in original) (quoting
Guillen, 697 F. App'x at 109).
The ALJ is not required to request an opinion from
plaintiff’s treating source where the ALJ’s opinion is

6

consistent with a consultative examiner and “the ALJ also [has]
all of the treatment notes from” the plaintiff’s physician.
Pellam v. Astrue, 508 Fed. Appx. 87, 89–90 (2d Cir. 2013).
Plaintiff asserts that the ALJ erred by failing to obtain
opinion evidence from any of her treating sources, including Dr.
Nawaz and APRN Baldino.

(Pl. Br. 20.)

Plaintiff further

alleges that the ALJ erred by relying on Dr. Yacov Kogan’s
opinion as to plaintiff’s mental RFC because Dr. Kogan is not a
psychiatrist.

(Pl. Br. 20.)

The Court agrees.

Dr. Kogan examined plaintiff on July 22, 2015.

(R. 572.)

Dr. Kogan reported that plaintiff was alert and oriented to time
and place, had normal expressive and receptive language, was
able to provide an organized history with good memory for recent
and distant elements, and had good thought process.

(R. 574.)

Dr. Kogan also reported that plaintiff’s thought process was
somewhat slow and that plaintiff required occasional repetition
during the exam, especially with more complex, multitask steps.
(R. 574–75.)

Dr. Kogan opined that plaintiff had no limitations

regarding her ability to speak, comprehend, remember, and carry
out simple tasks.

(R. 575.)

However, Dr. Kogan opined moderate

limitations regarding plaintiff’s ability to remember,
comprehend, and carry out complex instructions.
ALJ assigned Dr. Kogan’s opinion great weight.

7

(R. 575.)
(R. 18.)

The

Mental limitations opined by non-mental health specialist
are not entitled to great or controlling weight.

See Drogo v.

Colvin, No. 5:13-CV-0946 GTS, 2015 WL 4041732, at *7,*9
(N.D.N.Y. July 1, 2015).

In Fontanez v. Colvin, the court

determined that the ALJ failed to develop the record by
“fail[ing] [to] obtain [a] mental RFC assessments from
Plaintiff's treating psychiatrist or treating psychologist, Drs.
Ruiz and Nair, respectively.”

Fontanez v. Colvin, No. 16-CV-

01300 (PKC), 2017 WL 4334127, at *22 (E.D.N.Y. Sept. 28, 2017).
The record contained treatment notes from Doctors Ruiz and Nair;
an assessment by plaintiff’s treating physician, an internal
medicine specialist, Dr. Navarro, and an opinion from a
consultative psychologist who examined the plaintiff, Dr. Efobi.
Id. at *2, *20.
The court also stated that the opinions of Doctors Ruiz and
Nair were particularity important because, as “stress is highly
individualized, mentally impaired individuals may have
difficulty meeting the requirements of even so-called ‘lowstress’ jobs, and the Commissioner must therefore make specific
findings about the nature of a claimant's stress, the
circumstances that trigger it, and how those factors affect
[her] ability to work.”

Id. at *22 (internal quotation marks

omitted)(quoting Marthens v. Colvin, No. 3:15-CV-535 (CFH), 2016
WL 5369478, at *12 (N.D.N.Y. Sept. 22, 2016))(alterations in

8

original).

As such, findings of stress levels must be based on

the opinion of a mental health professional.

Fontanez, 2017 WL

4334127, at *22.
As in Fontanez, the record contains treatment notes from
plaintiff’s psychologist; an opinion from a consultative
examiner, and an assessment of plaintiff’s mental limitations by
a non-mental health professional.

However, unlike Fontanez,

there is not a single opinion from any of plaintiff’s treating
physicians, nor is there any evidence to suggest that such
opinions were requested.

Further, the record lacks medical

records from Dr. Nawaz, plaintiff’s treating psychologist,
during the relevant period.

Indeed, only records after the

relevant period were requested from Dr. Nawaz.

(R. 778, 784.)

Similarly, there are almost no treatment notes as to plaintiff’s
mental state during the relevant period.

The only treatment

notes from a mental health professional during any of the
relevant period are from Community Center for Behavioral Health
at Danbury.

(R. 543–61.)

However, the treatment notes

demonstrate that plaintiff was not seen there from October 8,
2013 until November 28, 2014 with no following treatment.
543.)

(R.

As a result, the record lacks medical evidence from a

mental health specialist for fourteen of the almost eighteen
month relevant period.

9

While the Commissioner points to opinions by state agency
consultants to demonstrate that there was not an obvious gap in
the record, Fontanez makes clear that opinions by state agency
consultants cannot cure such a defect.

Where the record lacks

sufficient medical records to supports the RFC determination,
the only cure is an opinion by plaintiff’s treating physiciannot that of a consulting physician.

See Fontanez v. Colvin, No.

16-CV-01300 (PKC), 2017 WL 4334127, at *22 (E.D.N.Y. Sept. 28,
2017) (remanding the ALJ’s decision for failing to obtain a
mental RFC determination from plaintiff’s treating psychiatrist
where plaintiff’s medical records did not shed light on
plaintiff’s mental RFC despite consulting physicians opining
plaintiff’s mental RFC limitations); see also Martinez v.
Berryhill, No. 3:17-cv-843 (SRU), 2019 WL 1199393, at *11 (D.
Conn. Mar. 14, 2019)(stating that a court must remand where both
the medical records obtained by the ALJ do not shed any light on
the plaintiff’s RFC and the consulting doctors did not
personally evaluate the plaintiff); Guillen v. Berryhill, 697 F.
App'x 107, 108-09 (2d Cir. 2017) (summary order) (remanding
where both the medical records obtained by the ALJ do not shed
any light on the plaintiff’s RFC and the consulting doctors did
not personally evaluate the plaintiff); Pellam v. Astrue, 508
Fed. Appx. 87, 89–90 (2d Cir. 2013)(the ALJ is not required to
acquire an opinion from the plaintiff’s treating source where

10

the ALJ’s opinion is consistent with a consultative examiner and
“the ALJ also [has] all of the treatment notes from” the
plaintiff’s treating physician)
The record here is clearly more deficient and presents more
gaps than the record in Fontanez.

Thus, the ALJ had a duty to

request an opinion from plaintiff’s treating physicians
regarding her mental RFC limitations.

Therefore, the Court must

remand.
b. The ALJ failed to develop the record by failing to
obtain the following medical records.
Plaintiff asserts that an obvious gap in the record was
created by the lack of medical records.

(Pl. Br. 19.)

Plaintiff asserts that the following medical records were
missing from the record: several treatment notes from Danbury
Hospital’s Community Center from February 7, 2011 to October 8,
2013; medical records from St. Mary’s Behavior Health prior to
October 8, 2015; and all records from Yale Neurosurgery Group
and Family Service Center.

Plaintiff asserts that the ALJ

failed to develop the record by failing to request and obtain
these medical records.
The Regulations provide that an ALJ “will develop [the
plaintiff’s] complete medical history for at least the 12 months
preceding the month in which” the plaintiff files an application
for social security disability benefits, “unless there is a

11

reason to believe that development of an earlier period is
necessary or unless [the plaintiff] say[s] that [his or her]
disability began less than 12 months before [the plaintiff]
filed [his or her] application.”

20 C.F.R. § 404.1512(b)(1).

The Regulations further provide that the ALJ “will make
every reasonable effort to help [the plaintiff] get medical
evidence from [his or her] own medical sources and entities that
maintain [his or her] medical sources’ evidence when [the
plaintiff] give[s] [the ALJ] permission to request the reports.”
Id.

“Every reasonable effort means that [the ALJ] will make an

initial request for evidence from [the plaintiff’s] medical
source or entity that maintains [the plaintiff’s] medical
source's evidence and . . . if the evidence has not been
received, [the ALJ] will make one follow-up request to obtain
the medical evidence necessary to make a determination.”

Id.

The ALJ does not have a duty to request additional evidence
where the evidence in the record is “adequate for [the ALJ] to
make a determination as to disability.”
F.3d 41, 48 (2d Cir. 1996).

Perez v. Chater, 77

“[W]here there are no obvious gaps

in the administrative record, and where the ALJ already
possesses a ‘complete medical history,’ the ALJ is under no
obligation to seek additional information in advance of
rejecting a benefits claim.”

Rosa v. Callahan, 168 F.3d 72, 79

n.5 (2d Cir. 1999).

12

Applying these principles, plaintiff is incorrect that the
ALJ failed to develop the record by not obtaining the medical
records from Danbury Hospital for the period between February
2011 and October 2013.

These records pre-date the relevant

period and therefore their absence does not create an obvious
gap in the record.

See Colbert v. Comm'r of Soc. Sec., 313 F.

Supp. 3d 562, 575–76 (S.D.N.Y. 2018)(stating that evidence prior
to the relevant period is irrelevant to the plaintiff’s RFC
determination); see also Ortiz v. Saul, No. 18-CV-4516 (JLC),
2019 WL 4649516, at *20 (S.D.N.Y. Sept. 25, 2019)(holding that
the ALJ failed to develop the record by relying on illegible
treatment notes and opinion evidence that pre-dated the relevant
period).

Further, the ALJ requested plaintiff’s medical records

for the twelve-month period before her application for benefits
as required.

See 20 C.F.R. § 404.1512(b)(1).

Similarly, plaintiff states that the ALJ failed to develop
the record by failing to obtain medical records from Yale
Neurosurgery Group.

(Pl. Br. 19.)

However, plaintiff indicates

that she had only one visit with Yale Neurosurgery Group, which
was on January 13, 2015—one month following her DLI.

(R. 312.)

Plaintiff does not assert any significance to this medical
appointment.

Notably, the ALJ requested plaintiff’s medical

records from Yale Neurosurgery Group.

(R. 145, 159.)

Additionally, these records post-date the relevant period and

13

therefore their absence does not create an obvious gap in the
record.

See O'Connell v. Colvin, 558 Fed. Appx. 63, 64 (2d Cir.

2014)(stating that evidence following plaintiff’s DLI is
irrelevant if there is no reasonable possibility that such
evidence would change the outcome of plaintiff’s application);
see also Vilardi v. Astrue, 447 Fed. Appx. 271, 272 (2d Cir.
2012)(evidence after the plaintiff’s DLI demonstrating a
worsening of her condition was irrelevant to the ALJ’s
determination).
Plaintiff is also incorrect that the ALJ failed to develop
the record by not receiving medical records from Family Service
Center.

The ALJ requested plaintiff’s medical records from

Family Service Center even though plaintiff never discussed
Family Service Center at her hearing and did not list Family
Service Center as a facility to be contacted for medical
records.

(R. 21–71, 144, 307–13.)

Plaintiff does not assert

any significance to these records, or the time period they
cover, or what treatment she sought.

Regardless, these records

pre-date the relevant period and therefore their absence does
not create an obvious gap in the record.

See Colbert v. Comm'r

of Soc. Sec., 313 F. Supp. 3d 562, 575–76 (S.D.N.Y. 2018); see
also Ortiz v. Saul, No. 18-CV-4516 (JLC), 2019 WL 4649516, at
*20 (S.D.N.Y. Sept. 25, 2019).

14

The absence of Dr. Nawaz’s treatment notes, however,
created an obvious gap in the record.
date is July 16, 2013.

(R. 268.)

Plaintiff’s alleged onset

Plaintiff filed for

disability insurance benefits under Title II and Title XVI on
November 24, 2014.

(R. 268.)

Therefore, the ALJ was required

to obtain plaintiff’s medical records from November 24, 2013 to
November 24, 2014.

20 C.F.R. § 404.1512(b)(1).

The ALJ only

requested plaintiff’s medical records from Dr. Nawaz at St.
Mary’s Hospital from November 10, 2015 to the present.
778.)

(R.

At the ALJ hearing on May 8, 2017, plaintiff specifically

told the ALJ that medical records from Dr. Nawaz at St. Mary’s
Hospital were incomplete.

(R. 62.)

On June 1, 2017 the ALJ

then made a follow up request for records after November 10,
2015.

(R. 784.)

When plaintiff referred to treatment notes after September
2015, the ALJ stated that he had Dr. Nawaz’s notes “up to
September 2015.”

Plaintiff responded that she did not have

access to the medical record to discover that records were
missing prior to August 2015.

(R. 31, 62.)

unrepresented at the ALJ hearing.

Plaintiff was

The record establishes that

plaintiff began treatment with Dr. Nawaz in September 2014—over
a year earlier than the time period of the records requested.
(R. 310.)

As such, there was an obvious gap in the record.

15

Where evidence is missing, “the issue is whether the
missing evidence is significant.”

Santiago v. Astrue, No. 3:10-

cv-937(CFD), 2011 WL 4460206, at *2 (D. Conn. Sept. 27, 2011).
Evidence is significant if its absence harmed the plaintiff.
See id.

Remand is not required where “the record was

sufficiently complete for the ALJ to make a substantially
supported RFC determination.”

Moreau v. Berryhill, No. 3:17-CV-

00396 (JCH), 2018 WL 1316197, at *12 (D. Conn. Mar. 14, 2018).
The only treatment notes from a mental health professional
during any of the relevant period are from Community Center for
Behavioral Health at Danbury.

(R. 543–61.)

These treatment

notes demonstrate that plaintiff was not seen from October 8,
2013 until November 28, 2014 with no following treatment.
543.)

(R.

As a result, the record lacks medical evidence from a

mental health specialist for fourteen of the almost eighteenmonth relevant period.
Plaintiff did not begin her treatment with Dr. Nawaz until
September 2014 which accounts for a maximum of three months of
records during the undocumented, relevant period.

(R. 310.)

While three months may seem minimal, any ability to close the
enormous gap in treatment notes during the relevant period would
have been significant.

As such, Dr. Nawaz’s treatment notes

were significant, and the Court cannot conclude that the record

16

was sufficiently complete for the ALJ to make a decision.
Therefore, the Court must remand.
II.

The Court Will Not Consider Plaintiff’s Remaining
Arguments

In light of the Court’s findings above, it need not reach
the merits of plaintiff’s remaining arguments.

Therefore, this

matter is remanded to the Commissioner for further administrative
proceedings consistent with this Ruling.

On remand, the

Commissioner will address the other claims of error not discussed
herein. 5
CONCLUSION
Based on the foregoing reasons, plaintiff’s motion for an
order to remand the Commissioner’s decision (Dkt. #26-2) is
GRANTED and the Commissioner’s motion to affirm that decision
(Dkt. #29-1) is DENIED.
This is not a recommended ruling.

The consent of the

parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.

Appeals can be made directly to the

appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3).

5

The Court offers no opinion on whether the ALJ should or will
find plaintiff disabled on remand. Rather the Court finds remand
is appropriate to permit the ALJ to obtain a particularized
statement from plaintiff’s treating physician concerning
plaintiff’s physical residual functional capacity.
17

SO ORDERED this 3rd day of March 2020, at Hartford,
Connecticut.
__
/s/
__ ___ ____
Robert A. Richardson
United States Magistrate Judge

18