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Walsh v. Colvin

United States District Court, D. Connecticut

April 25, 2016

JOHN WALSH, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, U.S.A., Defendant.



Plaintiff John Edwards Walsh claims that he is disabled and cannot work as a result of depressive disorder with panic, dependent personality disorder, and polysubstance abuse. He has brought this action pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security, who denied plaintiffs claim for supplemental security income and disability insurance benefits. The Commissioner concluded that although plaintiff suffered from severe impairments and could not work in his previous jobs, he retained sufficient residual functional capacity to secure other types of employment. Although I do not agree with most of plaintiffs arguments, I am convinced that a remand is appropriate for additional consideration of plaintiffs dependent personality disorder and its effect on both the ALJ's evaluation of plaintiffs residual functional capacity and the ALJ's evaluation of plaintiff s ability to secure employment. For the reasons that follow, I will grant plaintiffs motion to reverse or remand the decision of the Commissioner (Doc. #17), and deny defendant's motion to affirm the decision of the Commissioner (Doc. #19), and I will remand the case for prompt reconsideration by the ALJ.


The Court refers to the transcripts provided by the Commissioner. See Doc. #8-3. Plaintiff is a 48 year old man who lives in Hartford, Connecticut. He graduated from high school and college, and worked as a cruise ship drummer for about ten years. Starting in 2003, he began working part-time at various temp agencies and bicycle shops. By 2006, he had begun to experience a worsening depression and found it hard to maintain a job. He has held different short-term jobs, but the work was sporadic. He relied on his elderly father to support him financially, even though his father was on a limited income himself. Plaintiff has been receiving assistance from social service agencies since 2009 with housing, bills, and making it to appointments. He was on state food assistance as well. At the time of his disability application, he was 41 years old.

Plaintiff's medical history shows an increasingly troubled mental health status. He first sought mental health treatment in March 2009. He was diagnosed with depression and panic disorder. He underwent an initial assessment at the Capitol Region Mental Health Center (CRMHC) and was referred to Hartford Behavioral Health (HBH) for further treatment. He was supposed to go to HBH for appointments once per week, but often missed appointments. He was prescribed various psychiatric drugs to help him cope with his illnesses, which he usually took as prescribed unless he was running low on medication and without insurance to get more. When this happened, he would ration his medicine and take smaller doses.

Plaintiff received treatment at HBH from May 2009 until August 2011. In May 2011, a clinician at HBH diagnosed plaintiff with Axis II dependent personality disorder. In August 2011 plaintiff transferred his care to Community Health Services. He also received emergency treatment twice from St. Francis Hospital in Hartford for an acute mental health condition over these two years, and he once went to Hartford Hospital for back pain, where he was diagnosed with sciatica and lumbar strain. He was never admitted as an inpatient to a hospital during this time. In September 2011, he was admitted to an intensive outpatient program at the Institute of Living (IOL). In December 2011, he was admitted to the IOL as an inpatient for one week.

In July 2009, plaintiff filed an application for disability and disability insurance benefits under Title II of the Social Security Act for a period beginning in May 2008. The application was denied initially in November 2009, and on reconsideration in August 2010. In denying the initial application, a non-examining state medical consultant reviewed the treatment records from HBH, CRMH, and St. Francis hospital for disability and found that the plaintiff's impairments were not severe enough to warrant disability benefits.

After a hearing in August 2011, Administrative Law Judge (ALJ) Kim K. Griswold found that plaintiff was not disabled as defined by the Social Security Administration (SSA). The ALJ issued the decision in October 2011. Plaintiff requested Appeals Council review in November 2012, which was subsequently denied in April 2013. He then filed this federal action, seeking review of the Commissioner's decision and asking that the Court reverse the Commissioner's decision or remand the case for rehearing. See Doc. #13.


The Court may “set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence or if the decision is based on legal error.” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008) (internal quotation marks and citation omitted); see also 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla” and means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lesterhuis v. Colvin, 805 F.3d 83, 87 (2d Cir. 2015) (per curiam). This Court must uphold the Commissioner's decision if it is supported by substantial evidence even if this Court might have ruled differently. See Eastman v. Barnhart, 241 F.Supp.2d 160, 168 (D. Conn. 2003).

Plaintiff advances five claims of error: (1) that the ALJ erred in not completing the record adequately, (2) that the ALJ erred in failing to advise him of his right to counsel, (3) that the ALJ erred in assessing the severity of his mental health impairments, (4) that the ALJ erred in calculating his residual functional capacity (RFC), and (5) that the ALJ erred in not properly canvassing the vocational expert. The Commissioner has cross-moved to affirm the SSA's final decision. See Doc. #19.

1. Alleged Failure to Develop Record

Plaintiff contends that the ALJ did not adequately develop a record. “The ALJ, unlike a judge in a trial, must herself affirmatively develop the record” in light of “the essentially non-adversarial nature of a benefits proceeding.” Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999). This duty arises from the Commissioner's regulatory obligations to develop a complete medical record before making a disability determination, 20 C.F.R. § 404.1512(d)-(f) (1995), and exists even when, as here, the claimant is represented by counsel. See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999); see also Evans v. Comm'r of Soc. Sec., 110 F.Supp.3d 518, 537 (S.D.N.Y. 2015). The ALJ, however, has a duty to develop the record only if the evidence before her is “inadequate . . . to determine whether [the plaintiff is] disabled.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996).

There is no question that as of the date of the ALJ's hearing there were medical records and documents missing from the plaintiff's file. A significant portion of the beginning of the hearing consisted of the ALJ reprimanding plaintiff's attorney for not producing “a lick of medical evidence” since being appointed in 2010. Doc. #8-3 at 57. The ALJ, however, appropriately took steps to complete the record. See, e.g., Id. at 62 (medical release on the record), at 67-69 (subpoenaed provider records). She then found that there was enough information to make a determination regarding plaintiff's disability, and she made her decision.

Plaintiff contends that the record was incomplete because the ALJ did not subpoena records from Community Health Services. But there was no reason to subpoena records from Community Health Services because such records would not have provided useful evidence for the ALJ's determination, as plaintiff had only switched providers the day before the hearing and had not yet completed the intake process. See Doc. #8-3 at 68.

Plaintiff also argues that the Appeals Council should have considered certain information in making its decision that it did not consider, including post-hearing evidence from IOL. It is true that claimants are allowed to submit additional, post-hearing evidence to the Appeals Council that is “new and material and that . . . relate[s] to the period on or before the ALJ's decision.” Perez v. Chater, 77 F.3d at 45. The Appeals Council must, by regulation, “review the new evidence” and treat it “as part of the administrative record.” Ibid.

Further, the Social Security Act provides that a court may order the Secretary to consider additional evidence upon remand, “but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g); see also Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991); Flanigan v. Colvin, 21 F.Supp.3d 285, 308 (S.D.N.Y. 2014). Materiality requires “a reasonable possibility ...

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