Card v. Berryhill

Filing 25

ORDER: For the reasons set forth in the attached document, the plaintiff's Motion to Reverse the Decision of the Commissioner (ECF No. 20) is hereby GRANTED, Defendant's Motion for an Order Affirming the Decision of the Commissioner (ECF No. 24) is hereby DENIED, this case is hereby REMANDED to the Commissioner, and the Clerk shall close this case. Signed by Judge Alvin W. Thompson on 9/16/19. (Mata, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RUSSELL JAMES CARD, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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: Civil No. 3:18CV1060(AWT)
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ORDER REMANDING CASE
For the reasons set forth below, the decision of the
Commissioner is reversed and this case is remanded for
additional proceedings consistent with this order.
“A district court reviewing a final [] decision . . . [of
the Commissioner of Social Security] pursuant to . . . the
Social Security Act, 42 U.S.C. § 405(g) . . . is performing an
appellate function.”
(2d Cir. 1981).

Zambrana v. Califano, 651 F.2d 842, 844

The court may not make a de novo determination

of whether a plaintiff is disabled in reviewing a denial of
disability benefits.

See Wagner v. Sec’y of Health & Human

Servs., 906 F.2d 856, 860 (2d Cir. 1990).

Rather, the court’s

function is to ascertain whether the Commissioner applied the
correct legal principles in reaching a conclusion and whether
the decision is supported by substantial evidence.
v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).

See Johnson

The plaintiff argues, inter alia, that the Administrative
Law Judge (“ALJ”) had a duty to request a medical source
statement (“MSS”) from treating physician Elizabeth Arbia
because her “contemporaneous chart notes do not provide any
meaningful indication as to what she believes Mr. Card can or
cannot do on a function-by-function basis[, nor] . . . any
meaningful indication of how many days per month Mr. Card would
be expected to be out of work either due to his conditions or
for the treatment of them, a fact of great significance given
the vocational witness’s testimony that a worker’s absence one
day per month would result in no available jobs (R. 55).
Mem. to Reverse (“ECF No. 20-2”) at 4.

Pl.’s

The plaintiff also

argues that the ALJ’s failure to specifically consider the
“evaluation performed by a physical therapist . . . on December
18, 2015 (R. at 1082-1086)” noting that the plaintiff “would
require some type of job retraining” and was “probably able to
perform sedentary job part time” is a legal error that could
have affected the disability determination.

Pl.’s Mem. to

Reverse (“ECF No. 20-2”) at 2.
The defendant argues, inter alia, that the ALJ’s Residual
Functional Capacity (“RFC”) determination was supported by
substantial evidence because it included consideration of the
opinions of nonexamining state agency medical consultants Drs.
Golkar, Sandell and Chopra.

See Def.’s Mem. to Affirm (“ECF No.
2

24-1”) at 7-11.

As to the physical therapist’s medical source

statement, the defendant argues that the physical therapist’s
name is illegible; that the form was “completed by an unnamed
physical therapist, who was not an acceptable medical source”;
that the “evaluation took place just four months after Plaintiff
left the hospital, and while he was undergoing physical therapy
and reportedly using a cane”; and that the report did not
provide any rationale supporting the limitations assessed.”

See

Def.’s Mem. to Affirm (“ECF No. 24-1”) at 14.
The court concludes that, at minimum, the ALJ had a duty to
communicate in a reviewable way that he considered and weighed
the physical therapist’s assessment in relation to all of the
evidence, which includes Dr. Arbia’s records and MSS referral,
given that the physical therapist’s MSS was the only apparent
one prepared by an examining medical source.

This, standing

alone, warrants remand.
LEGAL STANDARD
In general, “the ALJ, unlike a judge in a trial, must . . .
affirmatively develop the record in light of the essentially
non-adversarial nature of a benefits proceeding, even if the
claimant is represented by counsel.” Tejada v. Apfel, 167
F.3d 770, 774 (2d Cir. 1999) (citation omitted) (internal
quotation marks omitted). “Social Security Administration
rules provide that ‘[m]edical reports should include . . .
[a] statement about what [the claimant] can still do despite
[his] impairment(s) ... Although [the SSA] will request a
medical source statement about what [the claimant] can still
do despite [his] impairment(s), the lack of the medical source
statement will not make the report incomplete.’” Tankisi v.
Commissioner of Social Security, 521 F. App'x 29, 33 (2d Cir.
3

2013)[ 1]
(summary
order)
(quoting
20
C.F.R.
§§
404.1513(b)(6)[ 2], 416.913(b)(6)). “[T]he plain text of the
regulation does not appear to be conditional or hortatory: it
states that the Commissioner ‘will request a medical source
statement’ containing an opinion regarding the claimant’s
residual capacity . . . . The regulation thus seems to impose
on the ALJ a duty to solicit such medical opinions.” Id.
(quoting
20
C.F.R.
§§
404.1513(b)(6),
416.913(b)(6))
(emphasis in original). The regulations state that the
reports should include a statement about the claimant’s
residual capacity, and that the lack of a medical source
statement is not necessarily fatal to the record. See id.
Accordingly, it is not “per se error for an ALJ to make a
disability determination without having sought the opinion of
the claimant’s treating physician.” Sanchez v. Colvin, 2015
WL 736102, at *5 (S.D.N.Y. 2015).
Even without a medical source statement, an “ALJ’s
conclusions would not be defective if he requested opinions
from medical sources and the medical sources refused.”
Tankisi, 521 F. App'x at 33-34. Further, the failure of the
ALJ to procure formal opinions about a claimant’s residual
functional capacity does not, by itself, require remand where
the medical record is “quite extensive[,] ... voluminous[,]
. . . [and] adequate to permit an informed finding by the
ALJ.” Tankisi, 521 F. App'x at 34; see also Pellam v. Astrue,
508 F. App'x 87, 90 (2d Cir. 2013) (summary order) (“[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.” (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5
(2d Cir. 1999)). “Remand is not always required when an ALJ
1

See Holt v. Colvin, No. 3:16-CV-01971 (VLB), 2018 WL 1293095, at *6:
The Court recognizes Tankisi is a summary order that does not have
precedential effect. There does not exist any binding decisions from the
Second Circuit on this issue, but numerous lower courts and the Second
Circuit summary orders have applied the reasoning in Tankisi. See, e.g.,
Guillen v. Berryhill, 697 Fed.Appx. 107, 108 (2d Cir. 2017); Monroe v.
Comm'r of Soc. Sec., 676 Fed.Appx. 5, 8 (2d Cir. 2017); DeLeon v. Colvin,
No. 15-CV-01106 (JCH), 2016 WL 3211419, at *4 (D. Conn. June 6, 2016);
Jacovino v. Berryhill, No. 16 Civ. 3187 (LTS) (HBP), slip op. at 19-21
(S.D.N.Y. Dec. 22, 2017); Wolf v. Berryhill, No. 1:16-cv-00327-MAT, slip
op. at 2-3 (W.D.N.Y. Nov. 8, 2017); Luciano, slip op. at 6-7.

To date there is no binding decision from the Second Circuit on this issue.
2
This provision was effective between September 3, 2013 to March 26, 2017.
The plaintiff filed his application November 6, 2015. Therefore, this
provision applies to this case.

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fails in his duty to request opinions particularly where ...
the record contains sufficient evidence from which an ALJ can
assess the petitioner’s residual functional capacity.”
Tankisi, 521 F. App'x at 34. That is particularly true where
the record includes assessments of the claimant’s limitations
from a treating physician. Id.
Remand is required where an ALJ’s residual functional
capacity decision is “wholly unsupported by any medical
evidence.” Jermyn v. Colvin, 2015 WL 1298997, at *19 (E.D.N.Y
Mar. 23, 2015). Remand is also necessary 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. 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.” Id. at 109.
Martinez v. Berryhill, No. 3:17-CV-843 (SRU), 2019 WL 1199393,
at *10–11 (D. Conn. March 14, 2019).
Also, the Social Security Administration makes clear that
“[r]egardless of its source, we will evaluate every medical
opinion we receive.”

20 C.F.R. § 404.1527(c) 3.

Pursuant to 20

C.F.R. 404.1512(e) 4, the ALJ generally “will not request a
consultative examination” “nor evaluate this evidence” “until”
the ALJ has made “every reasonable effort to obtain evidence
from” the plaintiff’s “own medical sources”.
Opinions from . . . medical sources, who are not technically
deemed “acceptable medical sources” under our rules, are
3

This provision is for claims filed before March 27, 2017. The plaintiff
filed his application November 6, 2015. Therefore, this provision applies to
this case.
4
This provision was effective between April 20, 2015 to March 26, 2017. The
plaintiff filed his application November 6, 2015. Therefore, this provision
applies to this case.

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important and should be evaluated on key issues such as
impairment severity and functional effects, along with the
other relevant evidence in the file.
Social Security Ruling 06-03p (Rescinded effective March 27,
2017, i.e. after November 6, 2015, when the plaintiff filed his
claim for disability benefits.); Kellams v. Berryhill, 696 Fed.
Appx. 909, 918 (10th Cir. 2017) (remanding for failure to
evaluate a physical therapist’s functional capacity evaluation
on key issues such as impairment severity and functional effects
even though the therapist was not considered an acceptable
medical source pursuant to 20 C.F.R. § 404.1502(a) (citing
Bowman v. Astrue, 511 F.3d 1270, 1274–75 (10th Cir. 2008)
(quoting Social Security Ruling 06–03p, 2006 WL 2329939, at *3
(Aug. 9, 2006))).
[W]e will consider [opinions from medical sources who are not
acceptable medical sources] using the same factors as listed
in paragraph (c)(1) through (c)(6) . . . [,] and after
applying the factors for weighing opinion evidence, an
opinion from a medical source who is not an acceptable medical
source or from a nonmedical source may outweigh the medical
opinion of an acceptable medical source, including the
medical opinion of a treating source.
20 C.F.R. § 404.1527(f)(1).
The evaluation of an opinion from a medical source who is not
an “acceptable medical source” depends on the particular
facts in each case. Each case must be adjudicated on its own
merits based on a consideration of the probative value of the
opinions and a weighing of all the evidence in that particular
case.
Social Security Ruling 06-03p.

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The adjudicator generally should explain the weight given to
opinions from these sources or otherwise ensure that the
discussion of the evidence in the determination or decision
allows a claimant or subsequent reviewer to follow the
adjudicator's reasoning, when such opinions may have an
effect on the outcome of the case.
20 C.F.R. § 404.1527(f)(2).

DISCUSSION
The ALJ’s Decision states:
Regarding the claimant's functioning related to his
aforementioned impairments, despite his complaints and
alleged functional limitations, the claimant has still
acknowledged doing some meal preparation, housework,
shopping, driving, using a computer and reading and the
ability to handle money (See: Exhibit 3E). Moreover, with
respect to the specific opinion evidence concerning the
claimant's physical functioning, a nonexamining state
agency physician in an assessment dated May 4, 2016,
maintained that the claimant was capable of lifting and
carrying
5-7
pounds
frequently
and
10
pounds
occasionally, sitting for about 6 hours in an 8 hour work
day, standing and/or walking for 4 hours in an 8 hour work
day and pushing/pulling within those weight limits, as
well as having the nonexertional limitations of inability
to climb ropes/ladders/scaffolds, of being limited to
occasional climbing of stairs/ramps, stooping, kneeling,
crouching and crawling and of being limited to frequent
balancing (Exhibit 4A). In view of the fact that said
assessment is generally consistent with and supported by
the just discussed record, and is not contradicted by a
competent, detailed and well-supported assessment from a
treating and/or examining source, it would be entitled to
significant probative weight with respect thereto (20 CFR
404.1527). To the extent that another nonexamining state
agency physician in an assessment dated February 1, 2016,
opined that the claimant had greater lifting/carrying and
pushing/pulling
capabilities
(Exhibit
2A),
when
considering the just discussed record and giving the
claimant the benefit of the doubt, the undersigned gives
said assessment less probative weight (20 CFR 404.1527).

R. at 27-28 (emphasis added).
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Here, the ALJ only refers to the opinions of nonexamining
state agency physicians and notes that these assessments are
“not contradicted by a competent, detailed and well-supported
assessment from a treating and/or examining source”; yet,
there is no indication that the ALJ attempted to contact a
treating or examining source for purposes of determining the
RFC.
The record does shed light on the plaintiff’s RFC.

It

reveals that the plaintiff asked Dr. Arbia to fill out
“Security/disability paperwork”.

R. at 929, 930, 932.

Dr.

Arbia appears to have referred this task to a physical
therapist.

See R. at 933, 1082.

The physical therapist’s MSS

identifies Dr. Arbia as the treating physician and describes the
reason for referral as “Disability Eval”.

R. at 1082.

This

medical source statement describes the plaintiff’s limitations
and opines that the plaintiff would need job retraining and was
possibly able to perform sedentary, part-time work; yet the
Decision fails to mention the physical therapist’s assessment,
even though the parties have identified it as the only existing
medical source statement from an examining medical source.

If

the ALJ had contacted Dr. Arbia, she might have been able to
provide rationale for the outcome of the physical therapist’s
assessment, might have been able to provide her own assessment,
might have been able to clarify the relationship between the
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plaintiff’s neck growth, pancreatitis and back pain and might
have been able to address what appear to be inconsistencies in
the record.

This information may have led to a different RFC

and disability determination.

CONCLUSION
For the reasons set forth above, the ALJ’s Decision must be
remanded because it fails to apply the correct legal standard.
On remand the ALJ should analyze the physical therapist’s
assessment, apply the factors found at 20 C.F.R. § 404.1527
(c)(1) through (c)(6), and weigh the assessment in relation to
all of the available evidence.

The ALJ should develop the

record by seeking any necessary clarifications or opinions from
Dr. Arbia.

The ALJ also should address the parties’ remaining

arguments, re-evaluate the Decision and write it such that the
plaintiff and any subsequent reviewer can follow his reasoning.
For the reasons set forth above, the plaintiff’s Motion to
Reverse the Decision of the Commissioner (ECF No. 20) is hereby
GRANTED, and Defendant’s Motion for an Order Affirming the
Decision of the Commissioner (ECF No. 24) is hereby DENIED.
This case is hereby REMANDED to the Commissioner for proceedings
consistent with this order.
The Clerk’s Office is instructed that, if any party appeals
to this court the decision made after this remand, any
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subsequent social security appeal is to be assigned to the
undersigned.
The Clerk shall close this case.
It is so ordered.
Dated this 16th day of September 2019, at Hartford,
Connecticut.

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/s/AWT
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____
Alvin W. Thompson
United States District Judge

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