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Burgos v. Berryhill

United States District Court, D. Connecticut

February 28, 2018



          Alvin W. Thompson United States District Judge

         For the reasons set forth below, the decision of the Commissioner is reversed and this case is remanded for additional proceedings consistent with this order.

         The plaintiff argues, in substance, (1) that the Administrative Law Judge (“ALJ”) failed to follow the treating physician rule because he did not make weight assessments with respect to the opinions of her treating psychiatrist Leela Panoor, M.D. (“Panoor”), her treating therapist Erica Wilcox, MS, CRC, LPC (“Wilcox”), and her examining therapist Alison Rutherford, MSWI (“Rutherford”), and the opinions of each were entitled to some, if not significant or controlling weight; (2) that the ALJ's analysis with respect to the RFC determination did not account for the opinions of the plaintiff's treating physicians and the plaintiff's statements; and (3) that the ALJ erred in concluding that the defendant had met its burden of proof at Step Five of the Sequential Evaluation Process.

         The defendant argues that the ALJ properly weighed the medical opinions of record and that substantial evidence supports the ALJ's Step Five Determination.

         The court concludes that this case must be remanded because the ALJ failed to follow the treating physician rule as to Panoor and Wilcox. The court does not address the remaining arguments because application of the treating physician rule at a rehearing may moot those issues.

         “A district court reviewing a final [] decision . . . [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.§ 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). The court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. See Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain whether the Commissioner applied the correct legal principles in reaching a conclusion and whether the decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). The Second Circuit has defined substantial evidence as “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be “more than a mere scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258.

         “[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 v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)). This is “particularly true [i]n the context of a psychiatric disability diagnosis[, ] such as in this case. In such a case, it is improper to rely on the opinion of a non-treating, non-examining doctor because the inherent subjectivity of a psychiatric diagnosis requires the physician rendering the diagnosis to personally observe the patient.” Griffin v. Colvin, No. 3:15CV105 (JGM), 2016 WL 912164, at *16 (D. Conn. Mar. 7, 2016) (internal quotations and citation omitted); Santiago v. Barnhart, 441 F.Supp.2d 620, 629 (S.D.N.Y. July 27, 2006) (“The Treating Physician Rule recognizes that a physician who has a long history with a patient is better positioned to evaluate the patient's disability than a doctor who observes the patient once for the purposes of a disability hearing. The rule is even more relevant in the context of mental disabilities, which by their nature are best diagnosed over time.”).

         “The regulations further provide that even if controlling weight is not given to the opinions of the treating physician, the ALJ may still assign some weight to those views, and must specifically explain the weight that is actually given to the opinion.” Schrack v. Astrue, 608 F.Supp.2d 297, 301 (D. Conn. 2009) (citing Schupp v. Barnhart, No. Civ. 3:02CV103 (WWE), 2004 WL 1660579, at *9 (D. Conn. Mar. 12, 2004)).

         “Failure to provide ‘good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133-34 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). The “good reasons” must be stated explicitly and set forth comprehensively. See Burgin v Asture, 348 F. App'x 646, 649 (2d Cir 2009) (“The ALJ's consideration must be explicit in the record.”); Tavarez v. Barnhart, 124 F. App'x 48, 49 (2d Cir. 2005) (“We do not hesitate to remand when the Commissioner . . . do[es] not comprehensively set forth reasons for the weight assigned . . . .”) (internal quotation marks and citation omitted); Reyes v. Barnhart, 226 F.Supp.2d 523, 529 (E.D.N.Y. 2002)(“rigorous and detailed” analysis required).

         In determining the amount of weight to give to a medical opinion, the ALJ must consider all of the § 404.1527(c) factors: the examining relationship, the treatment relationship (the length, the frequency of examination, the nature and extent), evidence in support of the medical opinion, consistency with the record, specialty in the medical field, and any other relevant factors. See Schaal, 134 F.3d at 504 (“all of the factors cited in the regulations” must be considered to avoid legal error).

         In Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999), the court explained the ALJ's duty in a case where there are deficiencies in the record:

[W]here there are deficiencies in the record, an ALJ is under an affirmative obligation to develop a claimant's medical history “even when the claimant is represented by counsel or . . . by a paralegal.” Perez, 77 F.3d at 47; see also Pratts, 94 F.3d at 37 (“It is the rule in our circuit that ‘the ALJ, unlike a judge in a trial, must [] affirmatively develop the record' in light of ‘the essentially non-adversarial nature of a benefits proceeding.'[. . . ].”) (citations omitted).

Id. at 79. See also Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118-19 (2d Cir. 1998) (holding that the ALJ should have sought clarifying information sua sponte because the doctor might have been able to provide a supporting medical explanation and clinical findings, that failure to include support did not mean that support did not exist, and that the doctor might have included it had he known that the ALJ would consider it dispositive).

Gaps in the administrative record warrant remand . . . . Sobolewski v. Apfel,985 F.Supp. 300, 314 (E.D.N.Y.1997); see Echevarria v. Secretary of Health & Hum. Servs.,685 F.2d ...

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