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Howarth v. Berryhill

United States District Court, D. Connecticut

December 19, 2017

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


          Janet C. Hall, United States District Judge.


         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.


         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.


         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 ...

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