Wojtaszek v. Kijakazi
RULING. For the reasons set forth in the attached Ruling, plaintiff's 13 Motion to Reverse the Decision of the Commissioner is DENIED, and defendant's 17 Motion to Affirm the Decision of the Commissioner is GRANTED. It is so ordered. Signed by Judge Sarah A. L. Merriam on 8/1/2022. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN C. W.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF THE SOCIAL
Civ. No. 3:21CV01081(SALM)
August 1, 2022
RULING ON CROSS MOTIONS
Plaintiff John C. W. (“plaintiff”) brings this appeal under
§205(g) of the Social Security Act (the “Act”), as amended, 42
U.S.C. §405(g), seeking review of a final decision by the Acting
Commissioner of the Social Security Administration (the
“Commissioner” or “defendant”) denying his application for
Supplemental Security Income (“SSI”). Plaintiff moves to reverse
the Commissioner’s decision or, in the alternative, to remand
for further administrative proceedings. [Doc. #13]. Defendant
moves for an order affirming the decision of the Commissioner.
[Doc. #17]. Plaintiff has filed a reply memorandum in support of
his motion to reverse and/or remand. [Doc. #18].
For the reasons set forth below, plaintiff’s Motion to
Reverse Decision of the Commissioner and/or to Remand to the
Commissioner [Doc. #13] is DENIED, and defendant’s Motion for
Order Affirming the Decision of the Commissioner [Doc. #17] is
Plaintiff filed an application for SSI on August 26, 2016,
alleging disability beginning on June 1, 2011. 2 See Certified
Transcript of the Administrative Record, Doc. #10, compiled on
September 27, 2021, (hereinafter, collectively, “Tr.”) at 193201. Plaintiff’s application was denied initially on February
24, 2017, see Tr. 109-12, and upon reconsideration on June 29,
2017. See Tr. 117-19.
On April 20, 2018, plaintiff, represented by Attorney
Dennis G. Ciccarillo, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) Michael McKenna. See generally
Tr. 49-80. On September 12, 2018, the ALJ issued an unfavorable
decision (hereinafter the “2018 decision”). See Tr. 8-29. On
September 6, 2019, the Appeals Council denied plaintiff’s
request for review, thereby making the ALJ’s 2018 decision the
final decision of the Commissioner. See Tr. 1-5.
In compliance with the Standing Scheduling Order, plaintiff
filed a Statement of Material Facts, titled “Plaintiff’s
Statement of Material Facts,” Doc. #13-2, to which defendant
filed a responsive statement. See Doc. #17-2.
The SSI application and the ALJ’s 2021 decision reflect
different onset dates. Compare Tr. 1331 (ALJ decision noting
alleged onset date of September 5, 2011), with Tr. 193 (SSI
application noting alleged onset date of June 1, 2011). Because
the onset date does not affect the Court’s analysis, the Court
refers to the onset date alleged in the SSI application.
On October 11, 2019, plaintiff, represented by Attorney
Ciccarillo, filed a Complaint in the United States District
Court for the District of Connecticut seeking review of the
ALJ’s 2018 decision. See John C. W. v. Saul,
No. 3:19CV01601(SALM) (D. Conn. Oct. 11, 2019). On February 21,
2020, plaintiff filed a Motion to Reverse the Decision of the
Commissioner. See id. at Doc. #20. On April 22, 2020, defendant
filed a Motion to Remand to Agency for Reversal and Remand for
Further Administrative Proceedings pursuant to 42 U.S.C.
§405(g). See id. at Doc. #21. On May 13, 2020, plaintiff filed a
response to defendant’s motion, asserting, in relevant part,
that the ALJ’s 2018 decision “should be reversed and remanded
for calculation of benefits based on his conditions meeting
Listing 12.04 and the absence of evidence that DAA is material.”
Id. at Doc. #22, p. 6.3
The Court held oral argument on the cross motions on May
29, 2020. See id. at Doc. #26. On June 11, 2020, the Court
granted plaintiff’s motion to reverse, in part, to the extent
plaintiff sought a remand for further administrative
proceedings, and granted defendant’s motion to remand to agency.
See id. at Doc. #27. Judgment entered for plaintiff on that same
date. See id. at Doc. #28.
DAA is an initialism for drug abuse and alcoholism. The Court
uses that initialism as applicable throughout this Ruling.
On June 22, 2020, the Appeals Council issued a Notice of
Order of Appeals Council Remanding Case to Administrative Law
Judge. See Tr. 1402-06. On February 19, 2021, the ALJ held a
second administrative hearing, at which plaintiff, represented
by Attorney Ciccarillo, appeared and testified by telephone. See
generally Tr. 1983-2011. Vocational Expert (“VE”) Thomas Hardy
appeared and testified by telephone at the hearing. See Tr.
2006-10. On April 15, 2021, the ALJ issued a second unfavorable
decision (hereinafter the “2021 decision”). See Tr. 1325-53.
Plaintiff did not file exceptions to the ALJ’s 2021 decision,
thereby making the 2021 decision the final decision of the
Commissioner. The case is now ripe for review under 42 U.S.C.
STANDARD OF REVIEW
The review of a Social Security disability determination
involves two levels of inquiry. “First, the Court reviews the
Commissioner’s decision to determine whether the Commissioner
applied the correct legal standard. Next, the Court examines the
record to determine if the Commissioner’s conclusions are
supported by substantial evidence.” Tejada v. Apfel, 167 F.3d
770, 773 (2d Cir. 1999) (citations omitted). Substantial
evidence is evidence that “‘a reasonable mind might accept as
adequate to support a conclusion[;]’” it is “‘more than a mere
scintilla.’” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S.
197, 229 (1938)). The reviewing court’s “responsibility is
always to ensure that a claim has been fairly evaluated[.]” Grey
v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983).
“The Court does not reach the second stage of review -evaluating whether substantial evidence supports the ALJ’s
conclusion -- if the Court determines that the ALJ failed to
apply the law correctly.” Poole v. Saul, 462 F. Supp. 3d 137,
146 (D. Conn. 2020).
Where there is a reasonable basis for doubt whether the
ALJ applied correct legal principles, application of the
substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant
will be deprived of the right to have her disability
determination made according to the correct legal
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
“[T]he crucial factors in any determination must be set
forth with sufficient specificity” by the ALJ to enable a
reviewing court “to decide whether the determination is
supported by substantial evidence.” Ferraris v. Heckler, 728
F.2d 582, 587 (2d Cir. 1984). The “ALJ is free to accept or
reject” the testimony of any witness, but “[a] finding that the
witness is not credible must nevertheless be set forth with
sufficient specificity to permit intelligible plenary review of
the record.” Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988). “Moreover, when a finding is potentially
dispositive on the issue of disability, there must be enough
discussion to enable a reviewing court to determine whether
substantial evidence exists to support that finding.” Leslie H.
L. v. Comm’r of Soc. Sec. Admin., No. 3:21CV00150(SALM), 2021 WL
5937649, at *2 (D. Conn. Dec. 16, 2021) (citation and quotation
It is important to note that in reviewing the ALJ’s
decision, this Court’s role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited to
determining whether the SSA’s conclusions were supported by
substantial evidence in the record and were based on a correct
legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507
(2d Cir. 2009)).
III. SSA LEGAL STANDARD
Under the Social Security Act, every individual meeting
certain requirements who is under a disability is entitled to
disability insurance benefits. See 42 U.S.C. §423(a)(1).
For the Social Security Administration (“SSA”) to consider
a claimant disabled under the Act and therefore entitled to
benefits, plaintiff must demonstrate that he is unable to work
after a date specified “by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a
continuous period of not less than 12 months[.]” 42 U.S.C.
§423(d)(1)(A). Such impairment or impairments must be “of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy[.]” 42 U.S.C. §423(d)(2)(A); see
also §416.920(c) (requiring that an “impairment or combination
of impairments ... significantly limit ... physical or mental
ability to do basic work activities” to be considered
There is a familiar five-step analysis used to determine
whether a person is disabled. See 20 C.F.R. §416.920(a)(4). In
the Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he
is not, the Secretary 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 Secretary will consider him
disabled without considering vocational factors such as
age, education, and work experience; the Secretary
presumes that a claimant who is afflicted with a “listed”
impairment is unable to perform substantial gainful
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per
curiam). If and only if the claimant does not have a listed
impairment, the Commissioner engages in the fourth and fifth
Assuming the claimant does not have a listed impairment,
the fourth inquiry is whether, despite the claimant’s
severe impairment, [s]he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
Secretary then determines whether there is other work
which the claimant could perform. Under the cases
previously discussed, the claimant bears the burden of
proof as to the first four steps, while the Secretary
must prove the final one.
Through the fourth step, the claimant carries the
burdens of production and persuasion, but if the
analysis proceeds to the fifth step, there is a limited
shift in the burden of proof and the Commissioner is
obligated to demonstrate that jobs exist in the national
or local economies that the claimant can perform given
his residual functional capacity.
Gonzalez ex rel. Guzman v. Sec’y of U.S. Dep’t of Health & Hum.
Servs., 360 F. App’x 240, 243 (2d Cir. 2010); see also Poupore
v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). The
residual functional capacity (“RFC”) is “the most” a person is
still capable of doing despite limitations resulting from his
physical and mental impairments. 20 C.F.R. §416.945(a)(1).
“In assessing disability, factors to be considered are (1)
the objective medical facts; (2) diagnoses or medical opinions
based on such facts; (3) subjective evidence of pain or
disability testified to by the claimant or others; and (4) the
claimant’s educational background, age, and work experience.”
Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978).
“[E]ligibility for benefits is to be determined in light of the
fact that the Social Security Act is a remedial statute to be
broadly construed and liberally applied.” Id. (citation and
quotation marks omitted).
However, “[w]hen there is medical evidence of an
applicant’s drug or alcohol abuse, the ‘disability’ inquiry does
not end with the five-step analysis.” Cage v. Comm’r of Soc.
Sec., 692 F.3d 118, 123 (2d Cir. 2012) (citing 20 C.F.R.
§416.935(a)). If the claimant is found disabled, the decisionmaker must then determine whether “alcoholism or drug addiction”
is a “contributing factor material” to the disability
determination, 42 U.S.C. §1382c(a)(3)(J), and whether the
claimant would still be disabled if he stopped using drugs or
alcohol, see 20 C.F.R. §416.935(b)(1). The claimant “bears the
burden of proving that h[is] [substance abuse] is not material
to the determination that he is disabled.” Cage, 692 F.3d at
THE ALJ’S 2021 DECISION
Following the above-described evaluation process, the ALJ
concluded that plaintiff’s impairments met the criteria of
Listing 12.04 and that he was in fact, disabled, but that his
substance use disorders were a contributing factor material to
that finding, and, therefore, plaintiff was not “disabled” under
the Act. See Tr. 1329, Tr. 1345.
At step one, the ALJ found that plaintiff had not engaged
in substantial gainful activity “since September 5, 2011, the
alleged onset date.” See Tr. 1331. 4 At step two, the ALJ found
that plaintiff had the severe impairments of “degenerative disc
disease of the lumbar spine, degenerative disc disease of the
cervical spine, major depressive disorder, anxiety disorder,
alcohol use disorder, cocaine use disorder, opioid use disorder,
[and] cannabis use disorder[.]” Id. The ALJ found plaintiff’s
hypertension, hepatitis C, headaches, and right orbital fracture
in to be non-severe impairments. See id. At step three, the ALJ
determined that plaintiff’s impairments, including plaintiff’s
“substance use,” met the requirements of Listing 12.04
(affective disorders) of 20 C.F.R. Pt. 404, Subpt. P, App. 1.
The ALJ next found that if plaintiff “stopped the substance
use, the remaining limitations,” including plaintiff’s
“depression, anxiety, limitations in memory, and limited
judgment[,]” “would cause more than a minimal impact on [his]
ability to perform basic work activities,” and he would
therefore “have a severe impairment or combination of
The time period under consideration is from the date of
plaintiff’s SSI application through the date of the
Commissioner’s decision. See Juan T. v. Kijakazi, No.
3:20CV01869(SALM), 2021 WL 4947331, at *4 (D. Conn. Oct. 25,
2021); see also 20 C.F.R. §§416.330, 416.335.
impairments[.]” Tr. 1335. The ALJ found that if plaintiff
“stopped the substance use, [plaintiff] would not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1[.]” Id. The ALJ specifically
considered “the Musculoskeletal Disorder listings with
particular focus” on Listings 1.15 (disorders of the skeletal
spine resulting in compromise of a nerve root) and 1.16 (lumbar
spinal stenosis resulting in compromise of the cauda equina).
Id. at 1335-36. The ALJ also considered “[t]he severity of
[plaintiff’s] mental impairments” under Listings 12.04
(affective disorder) and 12.06 (anxiety and obsessive-compulsive
disorders). Tr. 1336.
Before reaching step four, the ALJ found that
if [plaintiff] stopped the substance use, [he] has the
[RFC] to perform light work as defined in 20 CFR
416.967(b) except he can occasionally lift and carry 20
pounds; frequently lift and carry 10 pounds; stand and
walk 6 hours in an 8-hour day; sit for 6 hours in an 8hour
occasionally climb ladders, ropes, and scaffolds;
frequently balance; occasionally stoop, kneel, crouch,
and crawl; and can perform simple, routine tasks.
At step four, the ALJ found that plaintiff “is unable to
perform past relevant work.” Tr. 1344. At step five, the ALJ
concluded: “If the [plaintiff] stopped the substance use,
considering the [plaintiff’s] age, education, work experience,
and residual functional capacity, there have been jobs that
exist in significant numbers in the national economy that the
[plaintiff] can perform[.]” Tr. 1344-45.
Ultimately, the ALJ found plaintiff not disabled because
his “substance use disorder is a contributing factor material to
the determination of disability because the [plaintiff] would
not be disabled if he stopped the substance use[.]” Tr. 1345
Plaintiff seeks reversal and/or remand of this matter on
the grounds that: (1) the ALJ erred in his evaluation of the
medical opinion evidence, see Doc #13-1 at 6-7, 9-13; (2) the
ALJ failed “to properly evaluate the materiality of substance
use under Social Security Ruling 13-2p, and substantial evidence
does not support a finding of materiality of substance use[,]”
id. at 2; (3) substantial evidence does not support the RFC
determination, see id. at 18-23; and (4) the ALJ failed “to
satisfy the Commissioner’s burden at Step 5 of the
determination[,]” id. at 23. Defendant generally contends that
substantial evidence supports the ALJ’s decision. See generally
Doc. #17-1. The Court considers each of plaintiff’s arguments in
The ALJ Properly Considered the Opinion Evidence
In connection with his argument regarding the ALJ’s
materiality finding, plaintiff asserts that the ALJ erred in his
consideration of the medical opinion evidence. See Doc. #13-1 at
6-7, 9-15. Defendant contends that substantial evidence supports
the weight assigned to the opinions of Dr. Marc Hillbrand and
Dr. Chukwuemeka Efobi. See Doc. #17-1 at 11-14.
The Social Security Act and the regulations applicable to
the evaluation of medical opinion evidence were amended
effective March 27, 2017. Those “new regulations apply only to
claims filed on or after March 27, 2017.” Smith v. Comm’r, 731
F. App’x 28, 30 n.1 (2d Cir. 2018) (summary order). Where, as
here, a plaintiff’s claim for benefits was filed prior to March
27, 2017, “the Court reviews the ALJ’s decision under the
earlier regulations[.]” Poole, 462 F. Supp. 3d at 147 (citation
and quotation marks omitted).
When weighing any medical opinion, treating or otherwise,
the Regulations require that the ALJ consider the following
factors: length of treatment relationship; frequency of
examination; nature and extent of the treatment relationship;
relevant evidence used to support the opinion; consistency of
the opinion with the entire record; and the expertise and
specialized knowledge of the treating source. See 20 C.F.R.
§§416.927(c)(2)-(6); Social Security Ruling (“SSR”) 96-2P, 1996
WL 374188, at *2 (S.S.A. July 2, 1996); SSR 06-03P, 2006 WL
2329939, at *3-4 (S.S.A. Aug. 9, 2006). The Second Circuit does
not, however, require a “slavish recitation of each and every
factor [of 20 C.F.R. §416.927(c)] where the ALJ’s reasoning and
adherence to the regulation are clear.” Atwater v. Astrue, 512
F. App’x 67, 70 (2d Cir. 2013) (citing Halloran v. Barnhart, 362
F.3d 28, 31-32 (2d Cir. 2004) (per curiam)).
Plaintiff contends that the ALJ erroneously rejected Dr.
Hillbrand’s findings with respect to plaintiff’s social
limitations. See Doc. #13-1 at 6-7. Defendant contends that
substantial evidence supports the ALJ’s rejection of this aspect
of Dr. Hillbrand’s opinion. See Doc. #17-1 at 12.
Dr. Hillbrand conducted a consultative examination of
plaintiff on February 10, 2017. See Tr. 674-76. Dr. Hillbrand
concluded that plaintiff’s “ability to interact appropriately
with supervisors, coworkers, and the general public is
moderately impaired.” Tr. 676. The ALJ found that
this opinion is inconsistent with [Dr. Hillbrand’s]
examination. During his examination, he found that the
claimant had “flat” mood, good hygiene, average speech,
and a small social support network. He did not document
more significant objective findings to support a greater
limitation in social functioning and did not explain his
reasoning for opining a greater limitation in that area.
Dr. Hillbrand’s opinions are also partially consistent
with the record. Generally, the mild to moderate
limitations opined are consistent with the record in
terms of the claimant’s functioning when abstinent from
the use of substances. The record shows that at the time
of Dr. Hillbrand’s examination, the claimant had a fourmonth history of abstinence. His improved presentation
claimant’s presentation to other treatment providers
during periods of abstinence (Exhibit 10F; 13F; 26F). At
generally normal mental status findings and reported an
ability to engage in a wide range of activities of daily
abstinence, the claimant reported improvement in
irritability, better control of his temper, and
presented with fair rapport, fair grooming, good eye
contact, normal speech, and cooperative behavior,
consistent with no more than a mild limitation in social
interaction (Exhibit 13F at 10; 25F at 17; 26F).
Accordingly, the opinion of Dr. Hillbrand is given
Tr. 1342-43. The ALJ’s findings are supported by substantial
First, the record supports the ALJ’s finding that Dr.
Hillbrand examined plaintiff during a period of sobriety.
Indeed, Dr. Hillbrand’s examination report states that plaintiff
“quit” drinking “on October 21, 2016.” Tr. 674; see also Tr. 680
(March 29, 2017, History of Present Illness: Plaintiff “notes he
was at Rushford in October and was actually sober for
approximately 4 months’ duration, which is the longest that he
as been sober for some time. However, he states that on his
birthday, which was a month ago, he had a drink and since that
time he has been drinking heavily[.]”).
The record also supports the ALJ’s finding that during
periods of sobriety, plaintiff experienced, at most, mild
limitations in his social functioning. Mental status
examinations during plaintiff’s periods of sobriety reflect that
plaintiff was well-groomed, cooperative, and presented with
normal speech and mood. See, e.g., Tr. 743, Tr. 745, Tr. 747,
Tr. 749, Tr. 751, Tr. 955, Tr. 1603 (May 15, 2018, Mental Status
Evaluation reflecting that plaintiff was “cooperative,” with a
“fair rapport, good eye contact, fairly-groomed, no psychomotor
... agitation”), Tr. 1598 (June 19, 2018, Clinical Notes:
Plaintiff “reports that he is doing fine and not having episodes
of depression. ... Stated that he is drinking less[.] ... Denies
any thoughts about killing self. Improvement in irritability and
better control of his temper.”). Plaintiff also actively
participated in group therapy during times of sobriety, and
engaged in social activities such as going to church, and going
out to dinner and a movie with his girlfriend. See, e.g., Tr.
742, Tr. 744, Tr. 748, Tr. 750, Tr. 752, Tr. 956.
The ALJ’s determination as to plaintiff’s social
functioning is also supported by the opinion of Dr. Efobi, who
opined that plaintiff experienced mild limitations in
interacting with others while sober. See Tr 1318. For reasons
stated below, the ALJ appropriately assigned Dr. Efobi’s opinion
great weight. See Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.
1998) (An ALJ is permitted to “choose between properly submitted
Plaintiff cites to various records during periods of his
sobriety to support a finding that he suffers from moderate
social limitations even when sober. See Doc. #13-1 at 5.
Although the record reflects some instances of plaintiff’s anger
and irritability while sober, plaintiff essentially seeks a
reweighing of the evidence in his favor. The Court’s role,
however, “is not to decide the facts anew, nor to reweigh the
facts, nor to substitute its judgment for the judgment of the
ALJ. Rather, the decision of the ALJ must be affirmed if it is
based upon substantial evidence even if the evidence would also
support a decision for the plaintiff.” Bellamy v. Apfel, 110 F.
Supp. 2d 81, 87 (D. Conn. 2000). “The fact that [plaintiff] does
not agree with [the ALJ’s] findings, does not show that the ALJ
failed to comply with the applicable standards.” Lena v. Astrue,
No. 3:10CV00893(SRU), 2012 WL 171305, at *12 (D. Conn. Jan. 20,
Accordingly, substantial evidence supports the assignment
of partial weight to the opinion of Dr. Hillbrand. 5
To the extent plaintiff asserts that the ALJ did not provide an
explanation for the weight assigned to the opinion of Dr.
Hillbrand, the Court disagrees. The ALJ’s decision adequately
explains that partial weight was given to this opinion because:
(1) Dr. Hillbrand is an acceptable medical source who examined
plaintiff one time; (2) his opinions are partially consistent
with examination findings as well as the record; and (3) he did
not explain his reasoning for finding that plaintiff had a
moderate limitation in social interaction. See Tr. 1342-43.
Plaintiff asserts that the ALJ erred by assigning great
weight to the opinion of non-examining medical consultant Dr.
Efobi. See Doc. #13-1 at 9. Defendant contends that substantial
evidence supports the weight assigned to this opinion. See Doc.
#17-1 at 13.
Dr. Efobi completed a medical interrogatory dated July 24,
2018, regarding plaintiff’s mental impairments. See Tr. 1314-21.
In relevant part, Dr. Efobi concluded that, in the presence of
substance abuse, plaintiff had moderate to marked mental
limitations. See Tr. 1315. “[A]ssuming that any drug and/or
alcohol abuse is ongoing,” Dr. Efobi concluded that plaintiff’s
mental impairments met Listing 12.04. See Tr. 1316. In support
of these findings, Dr. Efobi cited to numerous reports in the
record. See Tr. 1315-1316.
Dr. Efobi also considered plaintiff’s mental impairments
when plaintiff’s drug and alcohol abuse was in “remission[.]”
Tr. 1318. Dr. Efobi concluded that under those circumstances,
plaintiff experienced mild mental limitations, with the
exception of plaintiff’s ability to “[u]understand, remember and
apply information[,]” in which plaintiff had a mild to moderate
impairment. Id. Dr. Efobi again supported these findings with
citations to the record. See id. In light of these conclusions,
Dr. Efobi opined that, “assuming that any drug and/or alcohol
abuse is in remission,” plaintiff’s “impairments established by
the medical evidence” do not meet a listed impairment. Tr.
The ALJ assigned Dr. Efobi’s opinion “great weight.” Tr.
1342. The ALJ noted that “Dr. Efobi is an acceptable medial
source[,]” whose “opinion is well-supported and explained with
specific reference to the medical record.” Tr. 1341. The ALJ
While claimant’s attorney notes that Dr. Efobi cited to
some of the same records to support both “marked” and
“mild” limitation, particularly in exhibit 10F, I note
that he also provided considerable additional evidence
to support his opinion (Exhibit 16E; 9F; 16F; 19F). More
importantly, the record as a whole is consistent with
his opinion that the claimant demonstrates improved
functioning when abstinent from the use of substances.
Id. The ALJ also acknowledged that “although Dr. Efobi did not
have the benefit of additional evidence submitted at the present
hearing, ... his assessment remains consistent with the record
as a whole. New evidence shows a similar pattern as described by
Dr. Efobi. ... Accordingly, Dr. Efobi’s opined limitations have
remained consistent with the record. His opinion is given great
weight.” Tr. 1342.
Plaintiff contends that the ALJ erred by assigning great
weight to Dr. Efobi’s opinion because of alleged inconsistencies
in the evidence he relied on to support his opinion. See Doc.
#13-1 at 10-14. Specifically, plaintiff contends that Dr. Efobi
cited to the same evidence to find mild mental limitations as he
did to find marked mental limitations. See id. at 11. In
response, defendant has listed each of the records relied on by
Dr. Efobi to support his conclusion that plaintiff suffered only
mild mental limitations in the absence of DAA. See Doc. #17-1 at
Defendant provides an accurate and detailed list of the
substantial evidence on which Dr. Efobi relied to conclude that
plaintiff experienced mild mental limitations in the absence of
DAA. See Doc. #17-1 at 14-15. Plaintiff does not take issue with
this summation in his reply. See Doc. #18. Defendant’s summation
of the evidence is an accurate reflection of the records relied
on by Dr. Efobi to support his opinion that plaintiff
experienced mild mental limitations in the absence of DAA.
Having reviewed this evidence, the Court agrees that substantial
evidence supports Dr. Efobi’s findings on this point. See also
Section V.B., infra (discussion of evidence supporting ALJ’s
To the extent Dr. Efobi relied on some of the same records
to support his findings for periods of DAA and sobriety, some of
the overlapping records relate to times when plaintiff
experienced both DAA and sobriety. See, e.g., Tr. 718, Tr. 721
(lab reports reflecting negative urine screens); Tr. 734, Tr.
941, Tr. 952, Tr. 998, Tr. 1260 (noting dates of plaintiff’s
last alcohol and/or marijuana use); Tr. 738 (noting sustained
remission of opioid and stimulant use disorders); Tr. 741, Tr.
745, Tr. 753 (noting “utox” checked/negative). Other records
reference the difference in plaintiff’s limitations during times
of DAA versus sobriety. See Tr. 736, Tr. 888, Tr. 892, Tr. 1216,
Tr. 1222, Tr. 1260. Accordingly, these purported discrepancies
support, rather than undermine, Dr. Efobi’s opinion.
Plaintiff next asserts that the ALJ erred by assigning
great weight to Dr. Efobi’s opinion because Dr. Efobi did not
personally examine plaintiff. See Doc. #13-1 at 15. Although Dr.
Efobi did not examine plaintiff, it is well established that
“the opinions ... of non-examining sources may ... be given
significant weight, so long as they are supported by sufficient
medical evidence in the record.” Correale-Englehart v. Astrue,
687 F. Supp. 2d 396, 427 (S.D.N.Y. 2010). Indeed, even “a
consulting psychiatric examiner’s opinion may be given great
weight and may constitute substantial evidence to support a
decision.” Colbert v. Comm’r of Soc. Sec., 313 F. Supp. 3d 562,
577 (S.D.N.Y. 2018) (internal citations omitted). For reasons
previously stated, Dr. Efobi’s opinion is well supported by the
medical evidence of record.
Finally, plaintiff asserts that Dr. Efobi’s opinion is
stale because he did not have the benefit of reviewing all of
the evidence in the record. See Doc. #13-1 at 15. “For
an opinion to be stale, not only must there be a significant
period of time between the date of the opinion and the hearing
date, there also must be subsequent treatment notes indicating a
claimant’s condition has deteriorated over that period.” Kelly
W. v. Kijakazi, No. 3:20CV00948(JCH), 2021 WL 4237190, at *13
(D. Conn. Sept. 17, 2021). As detailed further in Section V.B.,
infra, records post-dating Dr. Efobi’s opinion reflect patterns
similar to those documented in records from 2016 and 2017. See
generally Tr. 1606-1942. Nothing in those records raises any
doubts as to the reliability of Dr. Efobi’s opinion. The ALJ
explicitly recognized this in his decision. See Tr. 1342.
Accordingly, Dr. Efobi’s opinion was not stale. See, e.g.,
Camille v. Colvin, 652 F. App’x 25, 28 n.4 (2d Cir. 2016) (“No
case or regulation ... imposes an unqualified rule that a
medical opinion is superseded by additional material in the
record, and in this case the additional evidence does not raise
doubts as to the reliability of Dr. Kamin’s opinion.”).
Thus, for the reasons stated, substantial evidence supports
the ALJ’s assignment of “great weight” to the opinion of Dr.
Efobi. Tr. 1342.
Substantial Evidence Supports the ALJ’s DAA
Plaintiff contends that the ALJ’s materiality finding is
not supported by substantial evidence, and that the ALJ cherry-
picked the evidence to reach his materiality finding. See
generally Doc. #13-1 at 2-9, 15-18.
“[T]he claimant bears the burden of proving that [his] DAA
is not material to the determination that [he] is disabled.”
Cage, 692 F.3d at 123. DAA is material to disability if the ALJ
would not “find [the plaintiff] disabled if [the plaintiff]
stopped using drugs or alcohol.” 20 C.F.R. §416.935(b)(1)
(alterations added). “To support a finding that DAA is material”
in the context of a co-occurring mental disorder, the
Commissioner “must have evidence in the case record that
establishes that a claimant with a co-occurring mental
disorder(s) would not be disabled in the absence of DAA.” SSR
13-02P, 2013 WL 621536, at *9 (S.S.A. Feb. 20, 2013). DAA will
be found not material where “the evidence does not establish
that the [plaintiff’s] co-occurring mental disorder(s) would
improve to the point of nondisability in the absence of DAA.”
Id. (alterations added). In considering whether DAA is material,
the ALJ considers periods of abstinence, including the length of
those periods and when they occurred. See id. at *12.
The record reflects plaintiff’s many emergency department
visits and/or inpatient admissions for suicidal ideation. See
Tr. 35, Tr. 437, Tr. 531, Tr. 570, Tr. 708, Tr. 1123-34, Tr.
1185. At the time of each visit or admission, plaintiff was
intoxicated. See Tr. 437 (June 11, 2016, emergency department
record: “pt presents obviously intoxicated. Reports depressed
and wants to die.” (sic)); Tr. 531 (September 15, 2016,
emergency department record: “Chief complaint – Suicidal
Ideations[.] ... Admits to 1 pint EtOH, last drink 3 hours
ago.”); Tr. 570 (September 7, 2016, emergency department record:
“Per pt, he called girlfriend and said goodbye. Was planning on
hanging self with clothes line when PD arrived. ... Admits to
EtOH.” (sic)); Tr. 651 (September 29, 2016, treatment record:
Plaintiff “had suicidal ideation after binge drinking[.]”); Tr.
708 (March 28, 2017, emergency department record: “Last drank 1
hr ago ... Patient brought himself to the hospital tonight
stating that he has been drinking the past three weeks after
being sober for 4 months, having suicidal ideations with plans
to hurt himself, stating he would try all the things that failed
him in the past.”); Tr. 1124 (November 4, 2017, emergency
department record: “Patient presents to the emergency department
with complaints of increasing depression and having some
suicidal thoughts. ... He has been drinking tonight, and has
been feeling more depressed and having vague suicidal
thoughts.”); Tr. 1188 (March 20, 2018, emergency department
record: “Patient reports feeling suicidal, after he saw a new
psychiatrist today who would not prescribe benzos. Patient is a
history of overdosing on benzos. the patient went home and took
45 15 mg mirtazapine as well as etoh.” (sic)); Tr. 35 (August
14, 2018, emergency department record: “Patient is a 46-year-old
divorced Caucasian male with a history of major depressive
disorder and alcohol use disorder who presented to the emergency
department intoxicated and reporting suicidal ideation.”).
The record also reflects, however, two separate months-long
periods when plaintiff abstained from alcohol. See, e.g., Tr.
632 (January 20, 2017, treatment note: “[A]lcohol abuse in
remission since November 2016[.]”); Tr. 674 (February 10, 2017,
consultative examination: “He quit [drinking] on October 31,
2016. He underwent detox treatment at Rushford. ... He reports
no relapses since that date.”); Tr. 736 (April 26, 2017,
Psychiatric Evaluation: “Patient reports to me now that he is
clean and sober after being discharged from the hospital [on
March 30, 2017], although he does admit to using on several
occasions marijuana.”); Tr. 850 (July 19, 2017, treatment note:
“He is sober since March 2017.”). Mental status examinations of
plaintiff during these periods generally reflect normal findings
with, at most, mild mental impairments. See, e.g., Tr. 640, Tr.
645, Tr. 735-52, Tr. 762, Tr. 768, Tr. 853, Tr. 884, Tr. 935.
Plaintiff did not report suicidal ideation during these periods
of sobriety. See generally id.
Records post-dating the ALJ’s initial decision reflect
patterns similar to those documented in 2016 and 2017. See
generally Tr. 1606-1942. For example, in June 2018, at a time
when plaintiff was “drinking less” he reported “doing fine and
not having episodes of depression.” Tr. 1598. He also denied
“any thoughts about killing self” and reported “[i]mprovement
in irritability and better control of his temper.” Id. Other
mental status examinations around this time, when plaintiff was
reportedly sober or at least drinking less, reflect normal
psychiatric and/or mental status examinations. See Tr. 1593, Tr.
1603, Tr. 1623, Tr. 1639.
“Taken together, this is relevant evidence that a
reasonable mind might accept as adequate to support the
conclusion, that [plaintiff’s mental impairments] ... would
improve [to a point of non-disability] ... in the absence of
DAA.” Cage, 692 F.3d at 127. Dr. Efobi’s opinion, previously
discussed, also supports this conclusion. See Tr. 1314-21.
Accordingly, substantial evidence supports the ALJ’s materiality
finding. See, e.g., Smith v. Comm’r of Soc. Sec. Admin., 731 F.
App’x 28, 30 (2d Cir. 2018) (“Smith’s medical records showed
that her depression, anxiety, and bipolar disorder symptoms were
well-managed through medications and that her functioning
improved when she underwent substance abuse treatment.
Additionally, Smith herself reported to her doctors that her
substance abuse made her psychiatric conditions worse and that
she experienced improvements when sober.”); Tablas v. Apfel, No.
98CV05430(RMB), 2000 WL 423914, at *4 (S.D.N.Y. Mar. 21, 2000)
(“There is substantial evidence in the record to conclude ...
that the Plaintiff’s alcohol and drug use were contributing
factors to his disability[.] ... [T]he medical evidence is
replete with references to the Plaintiff’s several relapses into
alcohol and drug dependence and indications that, when the
Plaintiff was not using drugs and alcohol, his mental and
physical conditions improved rendering him employable.”).
Substantial Evidence Supports the RFC Determination
Plaintiff asserts “that there is neither the required
medical opinion, nor substantial evidence, to support the RFC.”
Doc. #13-1 at 23. Defendant contends that substantial evidence
supports the RFC determination. See Doc. #17-1 at 17-20.
The RFC “is what the claimant can still do despite the
limitations imposed by his impairment.” Greek v. Colvin, 802
F.3d 370, 374 n.2 (2d Cir. 2015) (alteration added); see also 20
C.F.R. §416.945(a)(1). The RFC is assessed “based on all the
relevant evidence in [the] case record[,]” including “all of the
relevant medical and other evidence.” 20 C.F.R. §§416.945(a)(1),
(3) (emphases added). The RFC, however, does not need to
“perfectly correspond with any of the opinions of medical
sources[.]” Matta v. Astrue, 508 F. App’x 53, 56 (2d Cir. 2013).
Indeed, where “the record contains sufficient evidence from
which an ALJ can assess claimant’s residual functional capacity,
a medical source statement or formal medical opinion is not
necessarily required.” Monroe v. Comm’r of Soc. Sec., 676 F.
App’x 5, 8 (2d Cir. 2017) (quotation marks and citations
With respect to plaintiff’s mental limitations, the ALJ
limited plaintiff to “simple, routine tasks.” Tr. 1338. The
mental RFC determination is supported by substantial evidence
including: (1) the opinion of Dr. Efobi, see Tr. 1318; (2) the
opinion of Dr. Hillbrand as to plaintiff’s ability to comprehend
and carry out complex tasks, see Tr. 675-76; and (3) the
numerous normal mental status examinations of record during
periods of plaintiff’s sobriety, see generally Section V.B.,
With respect to plaintiff’s physical impairments, the ALJ
limited plaintiff to light work, with additional postural
limitations. See Tr. 1338. Plaintiff asserts that this finding
is not supported by substantial evidence because it is not
supported by a medical opinion. See Doc. #13-1 at 21-23.
“Although an ALJ is not free to set his own expertise
against that of a physician, the ultimate determination of
whether a person has a disability within the meaning of the Act
belongs to the Commissioner[.]” Negron v. Berryhill, 733 F.
App’x 1, 3 (2d Cir. 2018) (citations and quotation marks
omitted). Thus, the ALJ is “entitled to weigh all of the
evidence available to make an RFC finding that [is] consistent
with the record as a whole.” Matta, 508 F. App’x at 56.
Substantial evidence supports the physical RFC
determination. First, plaintiff testified that he can
“comfortably lift” thirty pounds “without causing any kind of
pain in [his] neck or [his] back[.]” Tr. 2004. The record also
reflects that plaintiff served as a live-in caretaker for his
elderly parents during the relevant time period. See id.; see
also Tr. 1797. Indeed, plaintiff represented that he was
unemployed not because of his impairments, but because “of his
responsibilities to [his] parents[,]” for which he was “trying
to get paid as a caretaker[.]” Tr. 1797. The record also
indicates that plaintiff helped both his girlfriend and her son
move during the relevant time period. See Tr. 918, Tr. 968. This
supports the ALJ’s finding that plaintiff was capable of at
least light work during the relevant time period.
Additionally, many physical examinations of plaintiff’s
neck and back were unremarkable, or showed only mild impairment,
during the time period at issue. See Tr. 1189, Tr. 1290, Tr.
1297, Tr. 1579, Tr. 1586, Tr. 1622, Tr. 1639, Tr. 1685, Tr.
1951. Indeed, in July 2020, plaintiff denied having any neck
pain. See Tr. 1622. Other records reflect plaintiff’s denial of
back pain. See Tr. 632, Tr. 637, Tr. 776, Tr. 1671.
In this case,
was no medical opinion providing
specific restrictions reflected in the ALJ’s RFC
determination, such evidence is not required when “the
record contains sufficient evidence from which an ALJ
capacity.” Tankisi v. Comm’r of Soc. Sec., 521 F. App’x
29, 34 (2d Cir. 2013); see also Rosa v. Callahan, 168
F.3d 72, 79 n.5 (2d Cir. 1999). Here, the treatment notes
were in line with the ALJ’s RFC determinations. And
because [plaintiff] failed to adduce any medical
evidence inconsistent with the ALJ’s determinations, the
ALJ was not faced with “any clear gaps in the
administrative record” that gave rise to an affirmative
obligation to seek a medical opinion. See Rosa, 168 F.3d
Cook v. Comm’r of Soc. Sec., 818 F. App’x 108, 109–10 (2d Cir.
Accordingly, substantial evidence supports the ALJ’s RFC
There Is no Step Five Error
Plaintiff contends: “In the absence of an accurate RFC, the
Acting Commissioner has failed to carry her burden of proof of
‘no disability’ at Step 5[.]” Doc. #13-1 at 24. Defendant
contends that because the RFC is supported by substantial
evidence, and where the hypothetical questions posed to the VE
track the limitations in the RFC, there is no error at step 5.
See Doc. #17-1 at 20. “An ALJ may rely on a vocational expert’s
testimony regarding a hypothetical as long as there is
substantial record evidence to support the assumptions upon
which the vocational expert based his opinion, and accurately
reflect the limitations and capabilities of the claimant
involved[.]” McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir.
2014) (citation and quotation marks omitted); see also Mancuso
v. Astrue, 361 F. App’x 176, 179 (2d Cir. 2010) (approving an
ALJ’s hypothetical that “mirrored [plaintiff’s] RFC, which ...
was supported by substantial evidence in the record”); accord
Poole, 462 F. Supp. 3d at 166-67. Here, the ALJ presented the VE
with a hypothetical that reflected the ultimate RFC
determination. See Tr. 2008-10. As stated, the ALJ properly
weighed and considered the evidence of record, and the RFC
determination is supported by substantial evidence. Accordingly,
the ALJ appropriately relied on the VE’s testimony at step five
of the sequential evaluation, and there is no error.
For the reasons set forth herein, plaintiff’s Motion to
Reverse Decision of the Commissioner and/or to Remand to the
Commissioner [Doc. #13] is DENIED, and defendant’s Motion for
Order Affirming the Decision of the Commissioner [Doc. #17] is
It is so ordered this 1st day of August, 2022, at
HON. SARAH A. L. MERRIAM
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?