Laflamme v. Berryhill
Filing
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ORDER granting 19 Motion to Reverse the Decision of the Commissioner; denying 23 Motion to Affirm the Decision of the Commissioner for the reasons set forth in the attached Ruling. This case is remanded to the Social Security Administration for further proceedings. The Clerk shall enter judgment in Plaintiff's favor and close this case. Signed by Judge William I. Garfinkel on 4/24/18. (Cates, S)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KIMBERLY ANN LAFLAMME,
Plaintiff,
v.
No. 3:18-cv-00585(WIG)
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
_____________________________________X
RULING ON PENDING MOTIONS
This is an administrative appeal following the denial of the plaintiff, Kimberly Ann
Laflamme’s, applications for Title II disability insurance benefits (“DIB”) and Title XVI
supplemental security income benefits (“SSI”). It is brought pursuant to 42 U.S.C. § 405(g).1
Plaintiff now moves for an order reversing the decision of the Commissioner of the Social
Security Administration (“the Commissioner”), or in the alternative, an order remanding her case
for a rehearing. [Doc. # 19]. The Commissioner, in turn, has moved for an order affirming her
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) and 1383(c)(1)(A). The Commissioner’s authority to make
such findings and decisions is delegated to administrative law judges (“ALJs”). See 20 C.F.R.
§§ 404.929; 416.1429. Claimants can in turn appeal an ALJ’s decision to the Social Security
Appeals Council. See 20 C.F.R. §§ 404.967; 416.1467. 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.”
42 U.S.C § 405(g).
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decision. [Doc. # 23]. After careful consideration of the arguments raised by both parties, and
thorough review of the administrative record, the Court reverses the decision of the
Commissioner and remands the matter for additional proceedings.
LEGAL 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.” 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 district 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 first ascertain whether the Commissioner applied the correct legal
principles in reaching her conclusion, and then whether the decision is supported by substantial
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, a
decision of the Commissioner cannot be set aside if it is supported by substantial evidence.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). It must be “more than a scintilla or touch of proof here and there in the record.”
Williams, 859 F.2d at 258. 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).
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BACKGROUND
a. Facts
Plaintiff filed applications for DIB and SSI on November 24, 2014, alleging a disability
onset date of December 1, 2013. Her claims were denied at both the initial and reconsideration
levels. Thereafter, Plaintiff requested a hearing. On October 3, 2016, a hearing was held before
Administrative Law Judge Ellen Parker Bush (the “ALJ”). Plaintiff appeared with an attorney.
Plaintiff and a vocational expert (“VE”) testified at the hearing. On February 17, 2017, the ALJ
issued a decision denying Plaintiff’s claims. Plaintiff timely requested review of the ALJ’s
decision by the Appeals Council. On February 7, 2018, the Appeals Council denied review,
making the ALJ’s decision the final determination of the Commissioner. This action followed.
Plaintiff was forty-three years old on the alleged disability onset date. She has a ninthgrade education. She has past work experience as a food server and as a companion. She is
alleging disability based on mental impairments.
Plaintiff’s complete medical history is set forth in the Joint Stipulation of Facts filed by
the parties. [Doc. # 20]. The Court adopts this stipulation and incorporates it by reference
herein.
b. The ALJ’s Decision:
The Commissioner must follow a sequential evaluation process for assessing disability
claims. The five steps of this process 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
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impairment which “meets or equals” an impairment listed in Appendix 1 of the regulations (the
Listings). If so, and it meets the durational requirements, the Commissioner will consider the
claimant disabled, without considering vocational factors such as age, education, and work
experience; (4) if not, 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 in the national economy which the claimant can perform. See 20
C.F.R. §§ 404.1520; 416.920. The claimant bears the burden of proof on the first four steps,
while the Commissioner bears the burden of proof on the final step. McIntyre v. Colvin, 758
F.3d 146, 149 (2d Cir. 2014).
In this case, at Step One, the ALJ found that Plaintiff has not engaged in substantial
gainful activity since the alleged onset date. (R. 15). At Step Two, the ALJ found the following
severe impairments: depression; posttraumatic stress disorder; and generalized anxiety disorder.
(Id.). At Step Three, the ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments. (R.
16). In making this finding, the ALJ found that Plaintiff has no limitations in understanding,
remembering or applying information; moderate limitations in interacting with others; moderate
limitations in concentrating, persisting, or maintaining pace; and moderate limitations in
adapting or managing oneself. (R. 16-17). Next, the ALJ determined Plaintiff retains the
following residual functional capacity2:
Plaintiff can perform a full range of work at all exertion levels with the following
nonexertional limitations: she can perform simple, routine, repetitive tasks and
can maintain attention and concentration for two-hour blocks. She can tolerate
Residual functional capacity (“RFC”) is the most a claimant can do in a work setting despite his
or her limitations. 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1).
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brief interactions with supervisors and co-workers, but cannot interact with the
public. She can adapt to ordinary changes in work tasks.
(R. 17-21). In making this RFC assessment, the ALJ considered the opinion of non-examining
state agency psychiatrist Dr. Hill, who opined, on November 23, 2015, that Plaintiff had mild
restrictions in activities of daily living; moderate difficulties in maintaining social functioning
and maintaining concentration, persistence, or pace; and one or two repeated episodes of
decompensation, each of extended duration. (R. 123). Dr. Hill further opined that Plaintiff
would have no limitations regarding understanding and memory. (R. 124). He found Plaintiff
would be moderately limited in carrying out detailed instructions, maintaining attention and
concentration for extended periods, and working in coordination with or in proximity to others
without being distracted by them. (R. 125). Dr. Hill indicated that, “when abstinent,” Plaintiff
could remember and carry out simple instructions, keep appointments, maintain attention and
concentration for at least two hours, and complete simple tasks consistently when motivated, but
would be occasionally distracted by residual side effects, limiting her ability to carry out detailed
instructions. (Id.). In addition, Dr. Hill found Plaintiff would be moderately limited in
interacting with the general public, and that she may feel uncomfortable in certain settings, but
can function and work alone and relate to work staff when motivated. (Id.). He also found that
Plaintiff would have moderate limitations in her ability to set realistic goals and make plans
independently of others. (Id.). The ALJ gave great weight to Dr. Hill’s opinion, reasoning it was
consistent with the medical evidence of record, and that evidence submitted after he rendered the
opinion was not inconsistent with Dr. Hill’s overall assessment. (R. 20).
The ALJ also discussed a letter written by Mary Stacie, Licensed Professional Counselor,
on March 16, 2016. Counselor Stacie wrote that Plaintiff’s past trauma stretched back to
childhood, and was recently exacerbated by an assaultive relationship which she fled. (R. 914).
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Counselor Stacie stated that Plaintiff continues to live in fear of retribution from fleeing this
relationship. (Id.). She concluded that, “under the conditions of the current symptoms of her
PTSD, [Plaintiff] is unable to be engaged in any employment activity at this time or for the
foreseeable future.” (Id.). The ALJ gave Counselor Stacie’s opinion little weight, finding that
she was not an acceptable medical source3, and that the opinion did not provide functional workrelated limitations and was inconsistent with the medical evidence of record. (R. 20).
At Step Four, the ALJ found Plaintiff unable to perform any past relevant work. (R. 21).
Finally, at Step Five, the ALJ relied on the testimony of the VE to find that there are jobs
existing in significant numbers in the national economy that Plaintiff can perform. (R. 21-22).
Specifically, the ALJ found Plaintiff can perform the positions of housekeeper, cafeteria
attendant, and price marker. (R. 22). Accordingly, the ALJ found Plaintiff not to be disabled.
DISCUSSION
On appeal, Plaintiff first argues that the ALJ’s RFC finding was the product of legal error
and was unsupported by substantial evidence. The Court agrees, and finds remand is
appropriate.
In assessing a claimant’s RFC, the ALJ must consider objective medical evidence and
medical opinions, as well as the claimant’s subjective symptoms. See 20 C.F.R. §§
404.1545(a)(3); 416.945(a)(3). While the claimant bears the burden of providing evidence
relevant to the RFC determination, the ALJ is responsible for developing a claimant’s complete
medical history, including obtaining consultative exams and contacting treatment providers. Id.
The regulations differentiate between “acceptable medical sources” and “other sources” (with
counselors falling into the latter category); an ALJ is, however, required to review and account
for all evidence in the record regardless of its source. See Hernandez v. Astrue, 814 F.Supp.2d
168, 181-82 (E.D.N.Y. 2011).
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The regulations instruct the ALJ to consider “any statements about what [the claimant] can still
do that have been provided by medical sources, whether or not they are based on formal medical
examinations” and “descriptions and observations of [the claimant’s] limitations…, including
limitations that result from… symptoms, such as pain.” Id. As the regulations indicate, the
purpose of the RFC determination is to ascertain what a claimant can do despite those
limitations. See id. at (a)(1). Thus, the ALJ “must specify the functions plaintiff is capable of
performing, and may not simply make conclusory statements regarding a plaintiff’s capacities.”
Aiello v. Comm’r of Soc. Sec., No. 5:06-CV-1021, 2009 WL 87581, at *3 (N.D.N.Y. Jan. 9,
2009) (emphasis in original). When a claimant’s medical records contain “findings merely
diagnosing the claimant’s impairments without relating that diagnosis to functional capabilities,
the general rule is that the Commissioner may not make the connection [herself].” Kain v.
Colvin, No. 14-CV-650S, 2017 WL 2059806, at *3 (W.D.N.Y. May 15, 2017) (internal
quotation marks omitted).
The medical record in this case (with respect to evidence since the alleged onset date)
contained mental health treatment notes, notes from two inpatient admissions for suicidal
ideation (in February 2014 (R. 328) and December 2015 (R. 916)) and from an inpatient
admission for severe posttraumatic stress disorder symptoms (in August-September 2016 (R.
1275)). The record also contained Counselor Stacie’s letter and Dr. Hill’s opinion, as set forth
above. The record did not contain a medical opinion from a treating source assessing Plaintiff’s
mental functional limitations. The record did not contain a medical opinion from an examining
source assessing Plaintiff’s mental functional limitations. Thus, there was no medical opinion
from a treating or examining source that related the medical evidence to what Plaintiff can and
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cannot due functionally. And, Dr. Hill, the only other medical source who provided an opinion,
did so on an incomplete record.
Courts in this circuit have held that, “in the absence of any RFC assessments from
treating or examining physicians, an ALJ has an affirmative duty to develop the record by
obtaining such assessments.” Staggers v. Colvin, No. 3:14-CV-717 JCH, 2015 WL 4751123, at
*3 (D. Conn. Aug. 11, 2015) (citing cases). When an ALJ fails in his or her duty to request
opinions or assessments to develop the record, remand is not required when “the record contains
sufficient evidence from which an ALJ can assess the petitioner’s residual functional capacity.”
Tankisi v. Comm’r of Soc. Sec., 521 F. App’x 29, 34 (2d Cir. 2013). In Tankisi, the Second
Circuit found remand for development of the record was not required because the medical
record, although devoid of a formal opinion of the claimant’s RFC from a treating physician, was
“quite extensive,” and included an assessment of Tankisi’s limitations from a treating source and
functional assessments from several consultative examiners. Id. When, however, a record does
not contain sufficient evidence from which the ALJ can assess a claimant’s RFC, including when
the record is lacking a functional assessment from a treating or examining medical source,
remand is required. See Jermyn v. Colvin, No. 13-CV-5093 MKB, 2015 WL 1298997, at *19
(E.D.N.Y. Mar. 23, 2015) (remanding for development of the record when evidence before the
ALJ was “devoid of any opinions from treating or examining medical sources regarding
[claimant’s] functional or work capacity limitations” because “the ALJ was obligated to develop
the record and obtain RFC assessments from [claimant’s] treating and/or examining
physicians.”); Hernandez v. Comm’r of Soc. Sec., No. 1:13-CV-959 GLS/ESH, 2015 WL
275819, at *2 (N.D.N.Y. Jan. 22, 2015) (finding Tankisi inapplicable to a case where the record
lacked any medical source opinion regarding claimant’s functional limitations).
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In fact, “[c]ourts have distinguished Tankisi and remanded where the medical record
available to the ALJ is not “robust” enough to obviate the need for a treating physician’s
opinion.” Hooper v. Colvin, 199 F. Supp. 3d 796, 815 (S.D.N.Y. 2016). In Hooper, for
example, the record did not contain a current opinion from a treating physician or from a
consultative examiner, and the state agency medical consultants rendered opinions without
reviewing the entire medical record. Id. The court found that “although the ALJ extensively
referred to Hooper’s progress notes … in explaining his RFC determination, the ALJ’s own
interpretation of the treatment notes does not supersede the need for a medical source to weigh in
on Hooper’s functional limitations.” Id. at 816.
Likewise, in Walker v. Astrue, No. 08-CV-0828(A)(M), 2010 WL 2629832, at *6
(W.D.N.Y. June 11, 2010), report and recommendation adopted, No. 08-CV-828A, 2010 WL
2629821 (W.D.N.Y. June 28, 2010), the record before the ALJ consisted of mental health
records, an opinion from a state agency medical consultant who concluded the record was
insufficient for an RFC determination, and claimant’s testimony at the hearing. The record did
not contain an RFC opinion “from any medical source.” Id. The court held that, “[g]iven the
limited evidence in the record of plaintiff’s functional limitations from her mental impairments,
including the lack of any treating or consultative opinions concerning the extent of these
limitations,” the ALJ “should have ordered a consultative psychological examination or
attempted to contact plaintiff’s treating physicians to complete the record in order to make a
proper RFC determination.” Id. at *7. The court reasoned, “[w]ithout this additional medical
evidence,” the ALJ, “as a layperson, could not bridge the gap between plaintiff’s affective
disorder and schizophrenia and the functional limitations that flow from these impairments.” Id.
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Here, as in Hooper and Walker, lack of a functional assessment from a treating or
examining source necessitates remand. The ALJ should have requested a more specific
assessment from a treating source or referred Plaintiff to a consultative examiner. This finding is
underscored by the only medical opinion in evidence being rendered on an incomplete record.
After Dr. Hill provided his assessment, Plaintiff had two inpatient hospitalizations. (R. 916,
1275). She reported anxiety, difficulty sleeping, and ineffectiveness of medication. (R. 1253).
She was observed as anxious and upset, and reported difficulty leaving her home. (R. 1263).
These records, arguably, suggest a worsening of Plaintiff’s symptoms since Dr. Hill’s opining,
rendering that opinion of limited value. Since there was no other functional assessment from a
treating or examining source, the Court cannot say that the RFC is supported by substantial
evidence. Thus, this matter is remanded for further proceedings. On remand, the ALJ is directed
to develop the record as it relates to Plaintiff’s functional abilities by obtaining RFC assessments
from medical sources such as Plaintiff’s treatment providers and/or a consultative examiner.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion to remand is granted and the
Commissioner’s motion to affirm is denied. This case is remanded to the Social Security
Administration for further proceedings consistent with this opinion.
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); Fed.R.Civ.P. 73(c). The Clerk’s Office
is instructed that, if any party appeals to this Court the decision made after this remand, any
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subsequent social security appeal is to be assigned to the Magistrate Judge who issued the ruling
that remanded the case.
SO ORDERED, this 24th day of April, 2019, at Bridgeport, Connecticut.
/s/ William I. Garfinkel
WILLIAM I. GARFINKEL
United States Magistrate Judge
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