United States District Court, D. Connecticut
RULING RE: MOTION FOR ORDER REVERSING THE
COMMISSIONER'S DECISION (DOC. NO. 19) & MOTION FOR
ORDER AFFIRMING THE COMMISSIONER'S DECISION (DOC. NO.
C. Hall United States District Judge.
Richard Raymond Quinto, Jr., brings this action under section
405(g) of title 42 of the United States Code, appealing from
the final decision of the Commissioner of the Social Security
Administration (“SSA”), which denied his
application for Title II disability insurance benefits and
Title XVI supplemental security income. See
Complaint (“Compl.”) (Doc. No. 1). Quinto seeks
either reversal or remand of the Decision rendered by
Administrative Law Judge (“ALJ”) John Noel, which
affirms the Commissioner's denial. See Motion
for Order Reversing the Commissioner's Decision
(“Mot. to Reverse”) (Doc. No. 19). The
Commissioner cross-moves for an order affirming that
Decision. See Motion for Order Affirming the
Commissioner's Decision (“Mot. to Affirm”)
(Doc. No. 20).
reasons set forth below, the Motion for Order Reversing the
Commissioner's Decision is GRANTED. The
Motion for Order Affirming the Commissioner's Decision is
DENIED. This case is remanded to the ALJ for
proceedings consistent with this Ruling.
applied for disability and supplemental security income
benefits on November 12, 2014, alleging a disability onset
date of June 6, 2002. Certified Transcript
(“Tr.”) at 20. The Commissioner denied
Quinto's application initially on April 9, 2015, and upon
reconsideration on August 11, 2015. Id. On August
21, 2015, Quinto requested a hearing with an ALJ, which was
held before ALJ Noel on April 7, 2016. Id.
1, 2016, ALJ Noel issued an unfavorable decision for Quinto,
affirming the Commissioner's denial and finding that
Quinto was not disabled. Id. at 39. Specifically,
ALJ Noel found that Quinto's impairments did not meet or
equal any listing, see id. at 23-25, and that, with
his level of residual functional capacity, there were jobs in
the national economy that he could perform, see id.
at 25-39. Quinto requested review by the Appeals Court on
July 1, 2016, and the Appeals Court denied the request on
November 7, 2016. See id. at 1, 15. Following that
denial, ALJ Noel's June 1, 2016 Decision became a final
decision reviewable by this court. Quinto then filed this
appeal on January 5, 2017. See Compl.
parties in this case were unable to stipulate to the
facts. Pursuant to this court's Standing
Scheduling Order, then, Quinto submitted “a medical
chronology with record citations, ” and the
Commissioner responded by indicating “any material
omissions or areas of disagreement, again with record
citations.” Standing Scheduling Order-Social Security
Case at III(e). The court summarizes here the relevant facts
and indicates when the parties disagree as to those facts.
Where no disagreement is noted, the Commissioner has not
objected to Quinto's statement of those facts.
alleged a disability onset date of June 6, 2002, when he was
35 years old. See Memorandum in Support of Motion
for Order Reversing the Commissioner's Decision, Summary
of Facts (“Mot. to Reverse Mem. Facts”) (Doc. No.
19-1) at ¶¶ 1, 3. His only previous relevant work
was as a machine operator. See id. at ¶ 4. Both
parties agree that Quinto suffers from chronic obstructive
pulmonary disease (“COPD”), degenerative disc
disease in the lumbar spine, and deep vein thrombosis.
See id. at ¶ 5. Quinto also indicates that he
suffers from intellectual disability. See id. The
Commissioner disagrees with the terminology of
“disability” as an issue reserved for the
Commissioner, but agrees that Quinto suffers from some
Klinefelter Syndrome and has some cognitive slowing.
See Response to Plaintiff's Summary of Facts
(“Resp. to Facts”) (Doc. No. 20-1) at
¶¶ 3, 13.
respect to Quinto's COPD, his treating pulmonologist, Dr.
Stephen P. Caminiti, recommended on August 6, 2002, that he
be removed from his job because of “significant
abnormalities in his breathing function.” Mot. to
Reverse Mem. Facts at ¶ 6. A thoracoscopic lung biopsy
on January 13, 2003, revealed that Quinto had reactive
pneumonitis. See id. at ¶ 9. Dr. Caminiti
opined that Quinto should not be exposed to respiratory
irritants, including smokes, fumes, chemicals, odors, or
extremes in temperature, and should not participate in
physical activity beyond mild exertion. See id. at
¶¶ 12-18. On various occasions, Dr. Caminiti noted
that Quinto's condition was chronic and without
improvement, resulting in dyspnea, coughing, wheezing, and
shortness of breath. See id. at ¶¶ 13-18.
Caminiti prescribed Quinto Advair and Albuterol through a
nebulizer, to be used on a daily basis every four hours.
See id. at ¶¶ 12, 23. Dr. Nadeem Behjet,
Quinto's primary care physician, also noted that Quinto
used the nebulizer three to four times a day. See
id. at ¶ 23. Quinto testified at the hearing before
the ALJ that, since 2002, he used the nebulizer every four to
five hours, and occasionally every three hours if needed.
See id. at ¶¶ 19-20. He testified that he
needed 35 to 40 minutes to complete the treatment each time
he used the nebulizer. See id. at ¶ 21. The
vocational expert, Steven Sachs, testified that there were no
jobs in the economy that could be performed by an individual
who needed to use a nebulizer for 40 minutes during each
workday. See id. at ¶ 28.
addition to Dr. Caminiti, other physicians and healthcare
professionals also evaluated Quinto's COPD. Dr. Behjet
and an APRN, Shawn Putnam, both opined that Quinto could
never tolerate exposure to “dust, odors, fumes and
pulmonary irritants.” Id. at ¶¶ 26,
27. Two state medical consultants, Dr. Firooz Golkar and Dr.
Richard Papantonio, also examined Quinto's medical
records. See id. at ¶¶ 24-25. Dr. Golkar
opined that Quinto should avoid “even moderate
exposure” to “fumes, odors, dusts, gases and poor
ventilation, ” and Dr. Papantonio opined that Quinto
should avoid all exposure to those same irritants. See
id. at ¶¶ 24-25.
Commissioner adds the following facts that were omitted from
Quinto's Summary of the Facts. Dr. Golkar's report
indicated that Quinto's COPD was non-severe. See
Resp. to Facts at ¶ 8. Dr. Bondus assessed Quinto with
“mild to moderate reversible obstructive disease”
on October 4, 2002. See id. at ¶12a.
Additionally, on several occasions, Dr. Caminiti, Dr. Behjet,
and PA Lindsay Smith noted that Quinto's lungs were clear
and that his breathing was normal. See id. at
¶¶ 12c-12k. Finally, on various occasions, Quinto
also reported that he continued smoking, despite Dr.
Caminiti's advice that he quit. See id. at
¶¶ 12b, 12e, 12j, 12k.
Degenerative Disc Disease
reported lower back pain, including “aching and
spasming, ” on December 10, 2013, to the ProHealth
Extended Hours Center. Mot. to Reverse Mem. Facts at ¶
29. Dr. Behjet referred him to physical therapy for his lower
back pain on November 7, 2014. See id. at ¶ 30.
Dr. Behjet's medical records also indicate neck and hip
pain and tenderness in the lower lumbar area and left lower
extremity. See id. at ¶¶ 31, 35-36. Dr.
Behjet noted on December 22, 2014, that Quinto continued to
have pain despite physical therapy and medication. See
id. at ¶ 31.
January 30, 2015, Quinto had an MRI of his lumbar spine done.
See id. at ¶ 34. The parties disagree as to the
conclusions of the MRI. According to Quinto's
presentation of the facts, the MRI showed “mild to
moderate disc degeneration with moderate disc herniation at
¶ 4-5 with mass effect on the left L5 nerve root”
and “distal degeneration with mild foraminal
stenosis.” Id. The Commissioner does not
disagree with the findings of mild to moderate disc
degeneration or moderate disc herniation with mass effect.
See Resp. to Facts at ¶ 14. According to the
Commissioner, however, the MRI itself does not indicate
stenosis. See id. (citing Tr. at 610, which states
“no spinal stenosis” in Dr. Christopher
Leary's report on the MRI). Instead, the Commissioner
argues that the conclusion of “mild foraminal
stenosis” is found in Dr. Isaac Moss's notes
“during a subsequent office visit.” Id.
(citing Tr. at 674).
April 22, 2017, Dr. Behjet completed a Lumbar Spine Medical
Source Statement. See Mot. to Reverse Mem. Facts at
¶ 37. Dr. Behjet's statement reported that Quinto
suffered from “[l]umbar radiculopathy, leg pain, hip
pain and leg swelling, ” and “shortness of breath
with mild to moderate exertion, lower back pain and left leg
weakness.” Id. Dr. Behjet noted
“abnormal gait, reflex changes, tenderness[, ] swelling
and muscle spasms.” Id. (internal quotation
marks omitted). As a result, Dr. Behjet concluded that Quinto
could not stand for more than 20 minutes at a time, could not
stand/walk for more than a total of 2 hours per workday, and
would likely be off task for 25% or more of the workday.
Commissioner adds the following facts that were omitted from
Quinto's Summary of the Facts. On several occasions from
2013 to 2015, Quinto reported back pain to Dr. Caminiti and
PA Smith, but the examination's findings with respect to
his back were normal. See Resp. to Facts at
¶¶16a-16d. Additionally, Quinto reported to Dr.
Eric Grahling in April 2015 that physical therapy reduced his
pain. See id. at ¶ 16e.
has an IQ of 77 and suffers from Klinefelter Syndrome.
See Mot. to Reverse Mem. Facts at ¶ 39. Dr.
Janine Swanson and Dr. Katrin Carlson, two state
psychological consultants, examined Quinto's medical
records. See id. at ¶¶ 40-41. Both Dr.
Swanson and Dr. Carlson found that Quinto could carry out
simple tasks, but would have difficulty performing more
complex tasks. See id. Dr. Swanson also found that
Quinto would have difficulty performing “adequately in
a fast paced, competitive environment.” Id. at
¶ 40. Both Dr. Swanson and Dr. Carlson concluded that
Quinto could “perform simple, routine, repetitive tasks
in a setting that does not require strict adherence to time
or production quotas.” Id. at ¶¶
Commissioner adds that another psychologist, Dr. Jaime Burns,
examined Quinto on March 16, 2015, and found that Quinto had
“average cognitive functioning” and “could
follow and understand simple instructions.” Resp. to
Facts at ¶ 18a.
STANDARD OF REVIEW
section 405(g) of title 42 of the United States Code, it is
not a function of the district court to review de novo the
ALJ's decision as to whether the claimant was disabled.
See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.
1998). Instead, the court may only set aside an ALJ's
determination as to social security disability if the
decision “is based upon legal error or is not supported
by substantial evidence.” Balsamo v. Chater,
142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence requires
“more than a mere scintilla, ” but is a
“very deferential standard of review.” Brault
v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447-48
(2d Cir. 2012). It requires “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Id. at 448. If the
Commissioner's findings of fact are supported by
substantial evidence, those findings are conclusive, and the
court will not substitute its judgment for the
Commissioner's. 42 U.S.C. § 405(g) (2016); see
also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).
argues that the Commissioner's Decision should be
reversed or remanded for three reasons. First, he argues that
the ALJ failed to consider his use of a nebulizer in
determining his residual functional capacity
(“RFC”). See Memorandum in Support of
Motion for Order Reversing the Commissioner's Decision
(“Mot. to Reverse Mem.”) (Doc. No. 19-1) at 12.
Second, he argues that the ALJ erred in failing to give
controlling weight to the treating source opinion of Dr.
Behjet. See id. at 18. Finally, Quinto argues that
the ALJ erred in determining that his RFC permitted
occasional exposure to fumes, odors, dusts, gases, and poor
ventilation. See id. at 23.
court addresses first Quinto's first and third arguments
pertaining to the ALJ's RFC determination and then
addresses the ALJ's application of the treating source
rule to Dr. Behjet's opinion. Because the court finds
that the ALJ's failure to address Quinto's nebulizer
use is sufficient to justify remand, it also suggests that
the ALJ to revisit the other issues on remand, without
finding it necessary to hold that such errors would
themselves warrant remand on their own. See, e.g.,
Fly v. Colvin, No. 3:14-CV-1840, 2015 WL 5124957, at
*5 (N.D. Ind. Aug. 31, 2015) (requiring the ALJ to revisit
its credibility determination without finding that the error
itself required remand because the case was already being