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Quinto v. Berryhill

United States District Court, D. Connecticut

December 1, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.


          Janet C. Hall United States District Judge.


         Plaintiff 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).

         For the 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.


         Quinto 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.

         On June 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.

         III. FACTS

         The parties in this case were unable to stipulate to the facts.[1] 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.

         Quinto 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.

         A. COPD

         With 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.

         Dr. 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.

         In 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.

         The 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.

         B. Degenerative Disc Disease

         Quinto 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.

         On 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).

         On 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. See id.

         The 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.

         C. Intellectual Capacity

         Quinto 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 ¶¶ 40-41.

         The 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.


         Under 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).

         V. DISCUSSION

         Quinto 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.

         The 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 ...

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