United States District Court, D. Connecticut
RULING ON CROSS MOTIONS TO REMAND AND AFFIRM THE
DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.
Steven Ginda claimed he was disabled and could not work as a
result of a combination of ailments including severe back
pain, anxiety, and depression. His claim for disability
insurance was denied by the Commissioner of Social Security.
He now brings this action under 42 U.S.C. § 405(g)
seeking review of that decision. I assume the parties'
general familiarity with plaintiff's claims and the
record in this case.
qualify for disability insurance benefits, a claimant must
show that he is unable “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than
12 months, ” and “the impairment must be
‘of such severity that [the claimant] is not only
unable to do h[is] previous work but cannot, considering
h[is] age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the
national economy.'” Robinson v. Concentra
Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015)
(quoting 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A)).
evaluate a claimant's disability, and determine whether
he or she qualifies for benefits, the agency engages in a
well-established five-step process. See Cage v.
Comm'r of Soc.Sec., 692 F.3d 118, 122-23 (2d Cir.
2012). Here, neither side disputes the agency's decision
at Step One, and the decision of the ALJ proceeded only so
far as Step Two. At Step Two, the Commissioner
“considers whether the claimant has a ‘severe
impairment' that significantly limits [his] physical or
mental ability to do basic work activities.”
Ibid. The claimant has the burden of proof at this
step, and the Court may only set aside the ALJ's
determination “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).
standard for a finding of severity under Step Two of the
sequential analysis is de minimis and is intended
only to screen out the very weakest cases.”
McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir.
2014). Thus, “a claim may be denied at step two only if
the evidence shows that the individual's impairments,
when considered in combination, are not medically severe,
i.e., do not have more than a minimal effect on the
[claimant's] physical or mental ability(ies) to perform
basic work activities.” SSR 85-28, 1985 WL 56856, at *3
ALJ's conclusion that plaintiff's combination of
impairments is only de minimis was not supported by
substantial evidence. Plaintiff's treating physician, Dr.
Zebrowski, found in September 2014 that plaintiff had a
lumbosacral spasm that meant that plaintiff needed the
opportunity to shift at will from sitting, standing, or
walking. Doc. #17-10 at 86. Dr. Zebrowski estimated that
plaintiff would need to lie down at unpredictable intervals
as many as six times during an eight-hour working shift.
Ibid. Dr. Zebrowski also assessed limitations on a
number of other abilities, including plaintiff's ability
to twist, stoop, crouch, reach, push, pull, and concentrate
on work tasks. Id. at 86-87. These assessments, if
taken as accurate, clearly indicate a combination of
impairments with more than a minimal effect on an
individual's ability to work.
ALJ's decision not to accord these findings
“significant probative value, ” Doc. #17-3 at 25,
was in error. First, the ALJ erred in stating that “no
objective findings of spasm appear in any of [Dr.
Zebrowski's] treatment notes.” Ibid. One
set of Dr. Zebrowski's treatment notes reads
“moderate L/S spasm, ” the same notation Dr.
Zebrowski used on his assessment of plaintiff's
functional limitations. Doc. #17-9 at 31; Doc. #17-10 at 86.
the ALJ was incorrect in concluding that Dr. Zebrowski's
assessments are contradicted by the assessments made by the
agency's physicians. Dr. Zebrowski's assessments took
place in June 2013, November 2013, and September 2014. Doc.
#17-10 at 2-16, 86-87. The agency's consultative
examining physician conducted his assessment in November
2012, and the non-examining reviewers were limited to the
record as it existed in April 2013. Doc. #17-9 at 3; Doc.
#17-3 at 25. All of the information in front of the ALJ was
thus consistent with a scenario in which plaintiff's
physical condition deteriorated in 2013. That timeline,
moreover, was suggested by Dr. Zebrowski's treatment
notes. Between September 2011 and July 2013, Dr. Zebrowski
noted no abnormal musculoskeletal findings. See Doc.
#17-9 at 38-96; Doc. #17-10 at 55-63. But beginning in late
2013 and continuing into 2014, Dr. Zebrowski consistently
noted abnormalities in plaintiff's gait. Doc. #17-10 at
18-53; Doc. #17-11 at 3-9. Dr. Alahmadi, plaintiff's
consulting physician, noted in June 2014 that plaintiff
believed his gait was getting worse with time, and that the
MRIs of plaintiff's back supported the interpretation
that his spastic gait was consistent with cervical
myelopathy. Doc. #17-10 at 90. Dr. Alahmadi indicated that
surgery was necessary to manage plaintiff's condition.
were thus significant objective findings in the record from
two treating physicians indicating that plaintiff's
impairment was severe enough to significantly limit his
physical abilities and had grown worse since late 2012 or
early 2013. “[T]he opinion of a claimant's treating
physician as to the nature and severity of the impairment is
given ‘controlling weight' so long as it ‘is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case
record.'” Burgess, 537 F.3d at 128. The
ALJ erred in relying on older evidence from non-treating
physicians in the presence of newer evidence from
plaintiff's treating physicians, especially when the gap
in time meant the two sets of evidence did not necessarily
conflict. See Acevedo v. Astrue, 2012 WL 4377323, at
*16 (S.D.N.Y. 2012).
also erred in discounting Dr. Zebrowski's assessments for
not being adequately corroborated by his treatment notes. The
Second Circuit has made clear that if an ALJ intends to
discount the opinion of a treating physician for failure of
the treating physician to substantiate the clinical bases of
the physician's medical conclusions, then the appropriate
course is for the ALJ to seek additional information from the
treating physician. See Schaal v. Apfel, 134 F.3d
496, 505 (2d Cir. 1998); Thornton v. Colvin, 2016 WL
525994, at *6-*8 (D. Conn. 2016). To the extent the ALJ saw
inconsistencies or gaps between Dr. Zebrowski's treatment
notes and his assessments of plaintiff's limitations on
medical source statements, he should have developed the
record rather than outright rejecting plaintiff's claim.
motion to reverse or remand (Doc. #21) is therefore GRANTED,
and defendant's motion to affirm (Doc. #23) is DENIED.
The case is remanded for the ALJ to develop the record in
light of the ...