United States District Court, D. Connecticut
RULING RE: MOTION FOR ORDER REVERSING THE
COMMISSIONER'S DECISION (DOC. NO. 17) & MOTION FOR
ORDER AFFIRMING THE COMMISSIONER'S DECISION (DOC. NO.
25)
Janet
C. Hall, United States District Judge.
I.
INTRODUCTION
Plaintiff
Christopher Edward Howarth brings this action under Title 42,
section 405(g) 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). Howarth seeks
reversal of the Decision, affirming the Commissioner's
denial, rendered by Administrative Law Judge
(“ALJ”) Matthew Kuperstein and affirmed by the
Appeals Council. See Motion for Order Reversing the
Commissioner's Decision (“Mot. to Reverse”)
(Doc. No. 17). The Commissioner cross-moves for an order
affirming that Decision. See Defendant's Motion
for Order Affirming the Decision of the Commissioner
(“Mot. to Affirm”) (Doc. No. 25).
For the
reasons set forth below, the Motion for Order Reversing the
Commissioner's Decision is GRANTED. The
Motion for an Order Affirming the Decision of the
Commissioner is DENIED. The case is remanded
to the ALJ for proceedings consistent with this Ruling.
II.
PROCEDURAL HISTORY[1]
Howarth
applied for disability and supplemental security income
benefits on May 24, 2013. Memorandum in Support of Mot. to
Reverse (“Mot. to Reverse Mem.”) (Doc. No. 17-1)
at 2. Howarth initially alleged a disability onset date of
October 27, 2011, but later amended it to December 7, 2011,
the day after his prior employment terminated. Id.;
see also Certified Transcript of Record
(“Tr.”) at 237. The Commissioner denied
Howarth's application initially on October 2, 2013, and
again upon reconsideration on December 19, 2013. Mot. to
Reverse Mem. at 2. On February 7, 2014, Howarth requested a
hearing, which was held before ALJ Kuperstein on December 3,
2014. Id.
On
April 3, 2015, ALJ Kuperstein issued an unfavorable Decision
affirming the Commissioner's denial and finding that
Howarth was not disabled. Id.; see also Tr.
at 12-25. Specifically, ALJ Kuperstein found that
Howarth's impairment did not meet or medically equal the
severity of Listing 12.04, see Tr. at 15-17, and
that, with his level of residual functional capacity
(“RFC”), there were jobs in the national economy
that Howarth could perform, see Tr. at 23-24.
Howarth requested review by the Appeals Court on June 3,
2015, and the Appeals Court denied the request on September
12, 2016. Mot. to Reverse Mem. at 2; see also Tr. at
1-8. Following that denial, ALJ Kuperstein's April 3,
2015 Decision became a final decision reviewable by this
court. Howarth filed this case on November 9, 2016.
See Compl.
III.
FACTS
The
court adopts the facts as stated in the Plaintiff's
Proposed Stipulation of Facts, to which the Commissioner
stipulated. See Plaintiff's Proposed Stipulation
of Facts (“Stip. of Facts”) (Doc. No. 17-2);
Memorandum in Support of Mot. to Affirm (“Mot. to
Affirm Mem.”) (Doc. No. 25) at 3. Only those facts
relevant to the issues raised in the Motions before the court
are set forth below.
Howarth
was diagnosed with bipolar affective disorder in 1987 at age
17. Stip. of Facts at 2. He was hospitalized for a month in
1987, three times in 1991 and 1992, and again in 2005 and
2011. See id. at 2-3. From November 1997 to December
2005, he worked for an annuity company as a client service
representative. Id. at 2. Then from January 2007 to
December 2011, he worked as a customer service representative
for Denta Quest. Id. Because the “position was
extremely stressful” and he was unable to
“perform the job functions, ” he resigned in
December 2011. Id. at 2-3.
Howarth
has since been seen by a number of psychiatrists and other
therapists, including Dr. Kamau Collins, Dr. Afroze Muneer,
Dr. Lisa Reichard, Dr. Michael Torres, social worker Ellen
Schnier, APRN Sylvia Rasie, Dr. Neil Parker, Dr. Thomas
Truss, social worker Paul Clark, and therapist Richard
Conover. See id. at 2-13. In 2012, Howarth moved to
Maryland to live near his brother and, at that time, reported
manic symptoms including “racing thoughts, increased
sense of self, and decreased focus, ” as well as
“episodes of depression with less energy, increased
sleep, decreased interest in pleasurable activities, worse
concentration, decreased sense of self, psychomotor
retardation, and recurrent thoughts of death.”
Id. at 3. By November 2012, he had seen little
improvement despite treatment, and in January 2013, he
expressed frustration with his lack of progress. See
id. at 4-5. From February 16 to February 26, 2013,
Howarth was hospitalized “after progressive worsening
moods, irritability and inadequate sleep over the previous
two weeks.” Id. at 5. After being stabilized,
he was discharged “in fair condition with a fair
prognosis” and a “comprehensive treatment
plan.” Id.
Howarth
moved to Connecticut in 2013 and continued treatment with a
number of the above listed practitioners into 2014. See
id. at 6-11. In November 18, 2013, Nurse Rasie and Dr.
Randall completed a mental status questionnaire, noting
“[s]ignificant improvement.” See id. at
7. His healthcare providers continued to note a variety of
symptoms, including ongoing depression. See id. at
8-9. In October 2014, Howarth presented to therapist Conover
with manic symptoms, including elevated mood, difficulty
sleeping, tangential presentation, and grandiose effect.
See id. at 11. Conover considered that these
symptoms could be due to his mother's recent absence to
Florida. See id. at 11. Howarth's mother and
brother returned to assist with his episode, and by the end
of the month, his symptoms had improved. See id. at
11-12. His mother returned to Florida in November 2014.
See id. at 12. Howarth is now residing by himself
and receiving treatment in Connecticut. See id. at
12; see also Tr. at 282. The record reflects that
Howarth has not been employed since December 7, 2011, the
alleged date of onset of disability. See Stip. of
Facts at 3.
IV.
STANDARD OF REVIEW
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.” 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 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
Section
404.1520 of title 20 of the Code of Federal Regulations lays
out a five-step sequential evaluation process for determining
whether an individual claimant is disabled. 20 C.F.R. §
404.1520 (2017).
First, the Commissioner of Social Security considers whether
the claimant is currently engaged in “substantial
gainful activity.” If he is not, the Commissioner
proceeds to the second step and determines whether the
claimant has a “severe medically determinable physical
or mental impairment, ” that “significantly
limits his physical or mental ability to do work
activities.” If the claimant does suffer such an
impairment, the third step is “whether, based on
medical evidence, the claimant has an impairment which is
listed in Appendix 1 of the regulations.” If so, the
claimant is per se “disabled” and thus
presumptively qualified for benefits. If not, the
Commissioner proceeds to the fourth step and examines
whether, “despite the claimant's severe impairment,
he has the residual functional capacity to perform his past
work.” If the claimant is unable to perform his past
work, the Commissioner finally determines whether there is
other work the claimant can perform, taking into
consideration the claimant's RFC, age, education, and
work experience.
Petrie v. Astrue, 412 Fed. App'x 401, 404 (2d
Cir. 2011) (internal citations omitted).
In this
case, the ALJ found that the first two steps of the
sequential evaluation were satisfied-that Howarth was not
engaged in substantial gainful employment, and that his
bipolar disorder was a severe impairment. See Tr. at
14-15. The ALJ then found on step three that Howarth's
impairment, though severe, did not meet or medically equal a
listed impairment, specifically Listing 12.04. See
Tr. at 15-17. Finally, under steps four and five, the ALJ
determined that Howarth was not able to perform any past
relevant work, but could perform other jobs that exist in
significant numbers in the national economy. See Tr.
at 23-24.
Howarth
now argues that the Commissioner's Decision should be
reversed and remanded for two reasons. First, he argues that
the ALJ erred in step three of the analysis by failing
“to properly evaluate whether the plaintiff's
condition met or equaled the listing at 12.04.” Mot. to
Reverse Mem. at 3. Second, he argues that the ALJ erred in
steps four and five of the analysis by improperly weighing
the treating source opinion evidence of Nurse Rasie. See
id. at 6-8.
A.
Step Three: ALJ's Finding That Howarth's
Condition Did Not Meet or Equal Listing 12.04
Step
three of the analysis allows that “when . . . an
individual's impairment . . . meets or equals the level
of severity described in the Listing, and also meets the
durational requirement, disability will be found on the basis
of the medical facts alone in the absence of evidence to the
contrary.” Social Security Ruling 86-8: Titles II and
XVI: The Sequential Evaluation Process (“SSR
86-8”), 1986 WL 68636, at *3 (Jan. 1, 1986). To meet
the listing, the impairment must satisfy all of the criteria
in the listing. Bouton v. Astrue, No.
3:04-CV-1756RNC, 2007 WL 2889449, at *2 (D. Conn. Sept. 29,
2007). An impairment that does not meet the listing can
nonetheless be medically equivalent “if it is at least
equal in severity and duration to the criteria of any listed
impairment.” 20 C.F.R. § 404.1526
(2015).[2] To satisfy this, “the set of
symptoms, signs and laboratory findings in the medical
evidence supporting a claim must be compared with, and found
to be equivalent in terms of medical severity and duration
to, the set of symptoms signs and laboratory findings
specified in the listed impairment.” SSR 86-8 at *3.
In this
case, the listing at issue is Listing 12.04 for affective
disorders. 20 C.F.R. § 404.1525 app. 1, Listing 12.04
(2015).[3] Listing 12.04 requires the claimant to
satisfy the criteria in either both paragraphs A and B or in
paragraph C. Id. For bipolar syndrome, Paragraph A
requires the claimant to establish “a history of
episodic periods manifested by the full symptomatic picture
of both manic and depressive syndromes.” Id.
Paragraph B requires at least two of the following: marked
restriction of activities of daily life; marked difficulties
in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated
episodes of decompensation. Id. Paragraph C
establishes criteria for claimants with a history of the
disorder for at least two years who experience repeated
episodes of decompensation, marginal adjustment, or need for
a highly supportive living arrangement. Id.
The ALJ
determined that Howarth satisfied neither paragraph B nor
paragraph C and thus failed to establish a disability at step
three. See Tr. at 15-17. Specifically, the ALJ found
that Howarth experienced only mild restriction in activities
of daily living; moderate difficulties with social
functioning; moderate difficulties with concentration,
persistence, and pace; and one or two episodes of
decompensation. See id. at 16. The ALJ then stated
that he had considered the criteria in paragraph C and
recited the criteria without any further discussion. See
id. From the ALJ's ultimate conclusion that the
listing was not met or equaled, the court deduces that he
found that paragraph C was not satisfied, but he does not
state so explicitly. See id. at 15-17.
Howarth
argues that the case should be remanded because the ALJ's
decision at step three was not supported by substantial
evidence. See Mot. to Reverse Mem. at 3. First, he
argues that the ALJ decided that paragraph B was not met or
equaled without discussing any medical evidence in the
record, but instead relying solely on the claimant's own
statements. See id. at 3-4. He also contends that
the ALJ did not consider all of the episodes of
decompensation. See id. at 5-6. Second, he argues
that the ALJ found that paragraph C was not met or equaled
without discussing the evidence or articulating his reasons.
See id. at 6. Third, he argues that the ALJ did not
consider paragraph A. See id. at 3. Finally, he
argues that the ALJ failed to obtain a medical opinion on
equivalence. See id. at 5.
The
court first addresses Howarth's argument regarding the
ALJ's failure to articulate reasons for finding that
paragraph C was not met or equaled. Because the court finds
that the ALJ's failure regarding paragraph C is
sufficient to justify remand, it then also suggests that the
ALJ 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
remanded for other reasons); Waltemire v. Colvin,
No. 13-CV-1283-DDC, 2014 WL 3809189, at *12 (D. Kan. Aug. 1,
2014); Lowe v. Colvin, No. 2:12-CV-524-PRC, 2014 WL
4373637, at *8 (N.D. Ind. Sept. 3, 2014). Thus, after
addressing paragraph C, the court discusses the remaining
step three issues in their logical order-first, addressing
whether the ALJ met his obligation to receive expert opinion
evidence into the record on the question of medical
equivalence, and then addressing whether the ALJ sufficiently
considered that evidence for paragraphs A and B.
1.
Paragraph C Criteria
Howarth
argues that the ALJ asserted that the paragraph C criteria
were considered “without any discussion at all of the
evidence in support of the adverse determination.” Mot.
to Reverse Mem. at 6. The court agrees that the ALJ failed to
articulate any reasons at all for his finding that the
paragraph C criteria had not been satisfied. The ALJ merely
stated that he considered whether the paragraph C criteria
were satisfied and then quoted the criteria from the listing.
See Tr. at 17.
In
determining whether a listing has been met or equaled under
step three, the ALJ must consider “all relevant
evidence in [the] case record.” 20 C.F.R. §
404.1525 app. 1, Listing 12.00(D) (2015). Additionally, the
ALJ is required to articulate the specific reasons justifying
his decision that the claimant does or does not meet the
relevant listing. See Daniels v. Berryhill, No.
3:16CV01181 (SALM), 2017 WL 2798500, at *7 (D. Conn. June 28,
2017); Stango v. Colvin, No. 3:14-CV-01007 (CSH),
2016 WL 3369612, at *14 (D. Conn. June 17, 2016). The failure
to articulate reasons can itself be the basis for remand.
See Rivera v. Astrue, No. 3:10-CV-01035 CSH, 2014 WL
5419529, at *14 (D. Conn. Oct. 22, 2014) (citing Berry v.
Schweiker, 675 F.2d 464, 469 (2d Cir. 1982)). This is
true when the court “would be unable to fathom the
ALJ's rationale in relation to evidence in the record,
especially where credibility determinations and inference
drawing is required of the ALJ.” Berry, 675
F.2d at 469.
In
Nieves v. Colvin, the court remanded the ALJ's
decision where the ALJ “summarily disposed of step
three with conclusory statements that Nieves does not meet
either listing, followed by a recitation of the elements of
each listing.” Nieves v. Colvin, No.
3:15-CV-01842 (JCH), 2016 WL 7489041, at *5 (D. Conn. Dec.
30, 2016); see also Peach v. Colvin, No. 15-CV-104S,
2016 WL 2956230, at *4 (W.D.N.Y. May 23, 2016) (“[T]his
court cannot determine whether the ALJ properly considered
the Listings because his only reference to them is a
recitation of the standard.”). The court in
Nieves found that the lack of rationale prevented
the court from engaging in meaningful review of the ALJ's
decision. See Nieves, 2016 WL 7489041, at *6. In
Howarth's case, the ALJ's decision does not even
include conclusory statements that Howarth does not meet
paragraph C. See Tr. at 17. Rather, the court is
left to infer that the ALJ reached that decision based on the
ALJ's ultimate conclusion that Howarth did not meet or
equal the listing. Thus, the ALJ's rationale here is
severely lacking, and the ALJ should have articulated
specific reasons for rejecting paragraph C.
However,
the court is not required to remand if the ALJ's reasons
can be discerned from other steps in the ALJ's analysis
or from the evidence in the record. See Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983);
Berry, 675 F.2d at 469 (“[I]n spite of the
ALJ's failure to explain his rejection of the claimed
listed impairments, we were able to look to other portions of
the ALJ's decision and to clearly credible evidence in
finding that his decision was supported by substantial
evidence.”). When the ALJ's reasons can be thus
determined, the court has not required the ALJ to “have
mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive
or insufficient to lead him to a conclusion of
disability.” Mongeur, 722 F.2d at 1040;
see also Encarnacion v. Barnhart, No. 3:05 CV 1084
MRK WIG, 2006 WL 3834235, at *13 (D. Conn. June 15, 2006)
(citing Clinton v. Chater, 79 F.3d 1007, 1009-10
(10th Cir. 1996)). In those cases, the ALJ's failure to
articulate his reasons can be harmless error. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 735 (10th Cir.
2005); Young v. Astrue, No. 1:12-CV-00317-MJD, 2013
WL 501752, at *6 (S.D. Ind. Feb. 8, 2013).
In this
case, paragraph C criteria would require Howarth to show one
of the following: (1) “repeated episodes of
decompensation, each of extended duration;” (2)
“a residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental
demands or change in the environment would be predicted to
cause the individual to decompensate;” or (3)
“current history of 1 or more years' inability to
function outside a highly supportive living arrangement, with
an indication of continued need for such an
arrangement.” 20 C.F.R. § 404.1525 app. 1, Listing
12.04(C) (2015). As noted above, the ALJ does not address any
of these criteria in his sparse discussion of paragraph C.
While the court is able to determine the ALJ's rationale
for finding that criterion (1) and (3) are not satisfied
based on the rest of the Decision, but the Decision does not
contain the ALJ's reasons for rejecting criterion (2).
Regarding
criterion (1), the ALJ found in his discussion of the
paragraph B criteria that Howarth experienced one or two
episodes of decompensation and therefore did not satisfy the
criteria for “repeated” episodes of
decompensation. See Tr. at 16- 17.[4] Although the ALJ
did not repeat this discussion when reciting the paragraph C
criteria, the court can discern that the ALJ applied the ...