Tate v. Kijakazi

Filing 21

Ruling on Plaintiff's Motion to Reverse the Decision of the Commissioner (Doc. No. 16 ) and Defendant's Motion to Affirm the Decision of the Commissioner (Doc. No. 19 )For the reasons stated herein, the court grants the plaintiff's Motion and denies the defendant's Motion. The case is remanded to the ALJ for proceedings consistent with this Ruling. Signed by Judge Janet C. Hall on 9/24/2024. (Barry, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Kathleen P. Tate,
Plaintiff,
v.
KILOLO KIJAKAZI,
COMMISSIONER OF SOCIAL
SECURITY
Defendant.

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CIVIL CASE NO.
3:23-cv-01177 (JCH)

SEPTEMBER 24, 2024

RULING ON PLAINTIFF’S MOTION TO REVERSE THE DECISION OF THE
COMMISSIONER (DOC. NO. 16) AND DEFENDANT’S MOTION TO AFFIRM THE
DECISION OF THE COMMISSIONER (DOC. NO. 19)
I.

INTRODUCTION
The plaintiff, Kathleen P. Tate (“Ms. Tate”) brings this action under section 405(g)

of title 42 of the U.S. Code, appealing the final determination of the Commissioner of
Social Security (“the Commissioner”) denying her application for disability insurance
benefits and supplemental security income. See Motion for Order Reversing the
Decision of the Commissioner or Remand for Rehearing (“Pl.’s Mot.”) (Doc. No. 16);
Memorandum in Support of Plaintiff’s Motion for Order Reversing the Decision of the
Commissioner or Remand for Rehearing (“Pl.’s Mem.”) (Doc. No. 16-1). Ms. Tate
moves this court to reverse the Decision of the Commissioner or, alternatively, remand
the case for a hearing. See Pl.’s Mot. The Commissioner cross-moves for an order
affirming the Decision at issue. See Motion for Order Affirming the Decision of the
Commissioner (“Def.’s Mot.”) (Doc. No. 19); Memorandum in Support of Motion for
Order Affirming the Commissioner’s Decision (“Def.’s Mem.”) (Doc. No. 19-1).
For the reasons that follow, Ms. Tate’s Motion to Reverse or Remand (Doc. No.
16) is granted and the Commissioner’s Motion to Affirm is denied (Doc. No. 19).
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II.

BACKGROUND
On June 4, 2019, Ms. Tate applied for all disability benefits for which she was

eligible pursuant to Titles II and XVIII of the Social Security Act. Administrative Record
(“AR”) 208. She filed the application based on a disability that she claims began on
November 21, 2016. AR at 205, 208. Ms. Tate’s claims were denied on September 27,
2019, AR at 82–95, and again, upon reconsideration, on January 23, 2020. AR at 96–
110. Ms. Tate filed a request for a hearing on July 9, 2021, which was held on
November 10, 2021. AR at 15. The hearing was held via telephone before
Administrative Law Judge (“ALJ”) Deirdre R. Horton. See AR at 15. Following the
hearing, the ALJ concluded Ms. Tate is not disabled as that term is defined in the Social
Security Act. AR at 26. On February 8, 2022, Ms. Tate filed a Request for Review by
the Appeals Council, which was denied on July 5, 2023. See AR at 1. Ms. Tate next
filed an appeal with this court. The court assumes the parties are familiar with the
Administrative Record and adopts the undisputed, but supported, facts as stated in Ms.
Tate’s Statement of Facts and adopted by the Commissioner. See Pl’s. Mem. at 2–27;
Def.’s Mem. at 2.
III.

STANDARD
The ALJ follows a five-step evaluation to determine whether a claimant is

disabled within the meaning of the Social Security Act. At the first step, the
Commissioner considers whether the claimant is currently engaged in substantial
gainful activity. If not, the Commissioner proceeds to the second step and considers
whether the claimant has a “severe impairment” which limits her mental or physical
ability to do basic work activities. If the claimant has a “severe impairment”, the

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Commissioner proceeds to step three and asks whether, based solely on the medical
evidence, the claimant has an impairment listed in Appendix 1 of the Regulations. See
20 C.F.R. § 416.920(a)(4). If the claimant has one of these enumerated impairments,
the Commissioner will automatically consider that claimant disabled, without considering
vocational factors such as age, education, and work experience. Id.
If the impairment is not “listed” in the Regulations, the Commissioner proceeds to
step four and asks whether, despite the claimant's severe impairment, she has the
Residual Functional Capacity (“RFC”) to perform past work. At step five, the
Commissioner determines whether there is other work the claimant could perform. Id.
To be considered disabled, an individual’s impairment must be “of such severity that
[s]he is not only unable to do [her] 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). The Commissioner bears the burden of proof on the fifth step, while the
claimant has the burden on the first four steps. See McIntyre v. Colvin 758 F.3d 146,
150 (2d Cir. 2014).
Under section 405(g) of title 42 of the U.S. Code, the district court may not review
de novo an ALJ’s Decision as to whether the claimant was disabled. See Schaal v.
Apfel, 134 F.3d 496, 501 (2d Cir. 1998). The court’s review of the Commissioner’s
Decision “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.” Selian
v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (citation omitted); see also 42 U.S.C. §
405(g). “Substantial evidence” requires “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the
Commissioner’s findings of fact are supported by substantial evidence, those findings
are conclusive, and the court will not substitute its judgment in this regard for that of the
Commissioner. 42 U.S.C. § 405(g); see also Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998).
IV.

DISCUSSION
Ms. Tate argues that the ALJ erred in two primary respects. First, she contends

the ALJ misstated the Administrative Record, and relied on these mischaracterizations
in making credibility findings as to Ms. Tate’s alleged abdominal pain and frequent
bowel movements. See Pl.’s Mem. at 29–33. Second, Ms. Tate argues the ALJ erred
in making its RFC determination because it failed to account for medical evidence
suggesting Ms. Tate cannot satisfy the demands of light work due to her exertional
limitations and extensive need for “off-task” time. See Id. at 33–36. The Commissioner
resists both sets of arguments. See Def.’s Mem. The court considers both arguments
in turn.
A.

Credibility Determination

According to Ms. Tate, the ALJ minimized her well-documented complaints of
abdominal pain and frequent bowel movements and ignored important information in the
record regarding the same. See Pl.’s Mem. at 29–33. As a result, Ms. Tate argues that
her case should be remanded so that the ALJ can reconsider the record. See id. at 33.
“After careful consideration of the evidence,” the ALJ concluded that Ms. Tate’s
“impairments could reasonably be expected to cause the alleged symptoms[.]” AR at
20. Nonetheless, the ALJ found the “claimant’s statements concerning the intensity,

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persistence and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record[.]” AR at 20.
Despite the ALJ’s “careful consideration,” the court is left with the impression that
the ALJ failed to consider the entirety of the record and drew incongruous conclusions
as to Ms. Tate’s ailments. For example, the ALJ observed that, while Ms. Tate had
complained of being unable to eat due to her abdominal pain and frequent bowel
movements, “the record indicates that there was no significant weight loss, and the
claimant was consistently advised to lose more weight.” AR at 23. While it is correct
that Ms. Tate was advised to lose weight during various examinations, see, e.g., AR at
430, 453, the ALJ did not mention that Ms. Tate reported losing 30 pounds because of
“a reduced appetite.” Compare AR at 23, with AR at 412.
In another instance, the ALJ remarked, “there is no evidence . . . in the record”
that Ms. Tate had bowel movements between ten to twelve times per day, aside from
March 1, 2017, 1 where Ms. Tate’s doctor drafted a note upon her request stating as
much. 2 AR at 21. The ALJ’s summation of the record contradicts this conclusion
because the ALJ noted that in March 2016, April 2016, and October 2018, Ms. Tate
reported frequent bowel movements. AR at 21. Indeed, a March 7, 2016 entry reports
it is “[h]ard for [Ms. Tate] to leave the house due to the unpredictable/un[ ]controllable

The ALJ incorrectly observed that Dr. Michael Connolly, the author of the note, drafted it “[i]n
March 2018[.]” AR at 21; see AR at 464.
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The ALJ concluded the letter, drafted by Dr. Michael Connolly, was not probative because Ms.
Tate was dismissed from Dr. Connolly’s practice several months after the letter was drafted. See AR at
21. Ms. Tate appears to have been dismissed from the practice ten months after requesting the letter on
the suspicion that she had been untruthful about her communications with her insurance provider. See
AR at 447 (“This is very different than the story you have been telling me about how you were talking to
[your insurance provider] and they were working on getting you into another pain management clinic.
Due to this untruthfull[sic]ness, I have no choice but to dismiss you from the practice.”).
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nature of her stools.” AR at 483–84. An April 29, 2016 entry reads, in part, “[h]aving
diarrhea 10-12 times a day[,] still.” AR. at 479 (emphasis added). And an October 9,
2018 entry characterizes Ms. Tate’s bowel movements as “explosive bowel frequency
and urgency up to 12x daily.” AR at 412. Accordingly, the ALJ inconsistently concluded
that there was “no evidence” of Ms. Tate’s frequent bowel movements, when, as the
ALJ notes, such evidence appears throughout the record.
The ALJ later reasoned that treatment notes from New Solutions Pain
Management contained “no mention of [Ms. Tate’s] pervasive diarrhea[.]” AR at 22.
While the New Solutions records may not describe Ms. Tate’s diarrhea as “pervasive,”
the records do note that Ms. Tate “has diarrhea.” See AR at 582, 585, 588, 591.
Records from other treating institutions, dated around the time Ms. Tate was being
treated by New Solutions, also mention her bowel symptoms. See AR at 345, 366. 3
Similarly, the ALJ observed that Ms. Tate’s medical records from Live Well Pain
Management do not mention complaints of diarrhea. AR at 22. While the word
“diarrhea” does not appear in the Live Well records, multiple records from Live Well
mention Ms. Tate’s history of “[d]umping syndrome.” See e.g., AR at 795, 798, 801,
804. This syndrome, as the parties agree, is a “condition that results in difficulty
managing waste elimination.” Pl.’s Mem. at 16; see Def.’s Mem. at 2. 4 Upon reviewing

Ms. Tate’s struggle with diarrhea is discussed elsewhere in her medical records. AR at 437,
449, 466, 474, 489. The record also includes regular mention of Ms. Tate’s “dumping syndrome.” See
AR at 471, 594, 597, 600, 603, 606, 609, 612, 615, 617, 620, 784, 787.
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4 According to the Mayo Clinic, “[m]ost people with dumping syndrome develop signs and
symptoms, such as abdominal cramps and diarrhea[.]” Dumping syndrome, Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/dumping-syndrome/symptoms-causes/syc-20371915 (last
visited Sept. 23, 2024).

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the administrative record, therefore, the court is left with the impression that certain of
the ALJ’s conclusions rely on factual errors.
In the Second Circuit, when an ALJ’s evaluation of medical evidence includes
factual errors, findings that rely on these errors cannot be said to be supported by
substantial evidence. See Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996) (explaining
that the ALJ erred in assessing the evidence, including by ignoring evidence of weight
loss, and, in erring, finding that the ALJ’s “decision to deny [the claimant’s] disability
benefits is not supported by substantial evidence.”). Here, the ALJ erred in at least two
respects. First, the ALJ concluded that the record did not reflect that Ms. Tate
experienced “significant weight loss,” AR at 23, yet, instead, it reflects that Ms. Tate lost
30 pounds because of her abdominal pain. See, supra, Section IV.A. Second, the ALJ
erred by concluding that there was “no evidence” to support this level of frequency of
Ms. Tate’s bowel movements, AR at 21, and that the record did not consistently reflect
Ms. Tate’s bowel symptoms, more generally. 5 AR at 20–22. The record, however,
contains almost two dozen references to Ms. Tate’s bowel-related symptoms, history, or
condition, several of which detail the unusual frequency of her stools. See, supra, at 5–
6, 6 n.3. Accordingly, the court concludes that the ALJ’s findings as to Ms. Tate’s
abdominal condition and accompanying bowel movements lacked substantial evidence.

The ALJ noted, in response to an entry claiming that Ms. Tate had visited several
gastroenterologists to treat her abdominal symptoms, that “there is no evidence of [these visits] contained
in the record, which was held open for further submissions.” AR at 22. In considering the ALJ’s rationale
for discounting Ms. Tate’s symptoms, the court is concerned that the ALJ has failed to adequately
develop the record. It bears remembering that, in the Second Circuit, the ALJ has an affirmative duty to
develop the record—even if the claimant is represented by counsel. Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999) (“where there are deficiencies in the record, an ALJ is under an affirmative obligation to
develop a claimant's medical history ‘even when the claimant is represented by counsel[.]’”) (quoting
Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)).
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B.

RFC Description

The Residual Functional Capacity reflects “the most [one] can still do despite
[one’s] limitations.” 20 C.F.R. § 404.1545(a)(1). It is determined by considering “all the
relevant evidence in [one’s] case record.” Id. Ms. Tate argues that the ALJ erred in
arriving at the RFC description at issue because the ALJ understated Ms. Tate’s
exertional limitations and ignored her need for considerable “off-task” time because of
her frequent bowel movements. See Pl.’s Mem. at 33–36.
1.

Exertional Limitations

The ALJ concluded that Ms. Tate could perform light work, Ms. Tate asserts that
she is unable to satisfy the exertional demands of light work because of her severe
abdominal and back pain. Pl.’s Mem. at 33–34. To support this assertion, Ms. Tate
points to various portions of the record cataloguing her history of debilitating pain. Id.
Upon review, it bears remembering that “whether there is substantial evidence
supporting the appellant’s view is not the question here; rather, [the court] must decide
whether substantial evidence supports the ALJ’s decision.” Bonet ex rel. T.B. v. Colvin,
523 F. App'x 58, 59 (2d Cir. 2013) (summary order) (emphasis modified). In concluding
that Ms. Tate’s pain did not preclude her from performing light work, the ALJ noted that
several of Ms. Tate’s physical examinations revealed “essentially normal” results. AR at
20–22 (citing Ex. B1F and Ex. B5F). The ALJ further observed that, while Ms. Tate
described her untreated pain as being “9/10,” treatment notes from Live Well reflect her
treated pain as being “3/10.” AR at 22 (citing Ex. B10F and Ex. B11F). The ALJ further
noted that Ms. Tate “reported good pain control, [and] improved functional status[.]” AR
at 22 (citing Ex. B10F and Ex. B11F). The court’s review of the record suggests the

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ALJ’s findings as to Ms. Tate’s pain, and the exertional limitations connected therewith,
are supported by substantial evidence. That Ms. Tate points to evidence of her own to
support the opposite conclusion is not enough to overcome substantial evidence
supporting the ALJ’s findings.
2.

“Off-Task” Time

Ms. Tate next argues that the RFC is flawed because the ALJ failed to account
for her frequent bowel movements. See Pl.’s Mem. at 34–35. Having already
concluded that the ALJ’s findings as to Ms. Tate’s bowel symptoms lacked substantial
evidence, see, supra, Section IV.A, the ALJ’s determination about Ms. Tate’s RFC must
be reevaluated. Accordingly, the court finds it appropriate to remand this case so that
the ALJ may reconsider Ms. Tate’s limitations insofar as they relate to her bowel
movements.
V.

CONCLUSION
For the reasons stated above, the court grants the plaintiff’s Motion and denies

the defendant’s Motion. The case is remanded to the ALJ for proceedings consistent
with this Ruling.

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SO ORDERED.
Dated at New Haven, Connecticut this 24th day of September 2024.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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