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Moreau v. Berryhill

United States District Court, D. Connecticut

March 13, 2018

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




         Plaintiff Kristin Ellen Moreau brings this action under sections 405(g) and 1383(c)(3) of title 42 of the United States Code, appealing from the final decision of the Commissioner of the Social Security Administration (“SSA”), which denied her application for Title II disability insurance benefits and Title XVI supplemental security income. See Complaint (“Compl.”) (Doc. No. 1) at 1. Moreau seeks either reversal or remand of the Decision rendered by Administrative Law Judge (“ALJ”) Louis Bonsangue, which affirms the Commissioner's denial. See Motion to Reverse or Remand the Decision of the Commissioner (“Mot. to Reverse”) (Doc. No. 20). The Commissioner cross-moves for an order affirming that Decision. See Motion to Affirm the Decision of the Commissioner (“Mot. to Affirm”) (Doc. No. 23).

         For the reasons set forth below, the Motion to Reverse or Remand the Decision of the Commissioner is GRANTED. The Motion to Affirm the Decision of the Commissioner is DENIED. This case is remanded to the ALJ for proceedings consistent with this Ruling.

         II. Procedural History [1]

         Moreau applied for disability and supplemental security income benefits on March 20, 2014. See Stipulated Statement of Facts (“Stip. Facts”) (Doc. No. 21) at 1. The Commissioner denied Moreau's application initially on August 29, 2014, and upon reconsideration on December 15, 2014. See id. Moreau requested a hearing with an ALJ, which was held before ALJ Bonsangue on February 10, 2016. See id.

         On May 25, 2016, ALJ Bonsangue issued an unfavorable Decision for Moreau, affirming the Commissioner's denial and finding that Moreau was not disabled. See id.; Certified Transcript of Record (“Tr.”) (Doc. No. 13) at 27-40. Specifically, ALJ Bonsangue found that, while Moreau cannot perform any past relevant work, there are jobs that exist in significant numbers in the national economy that Moreau can perform based on her residual functional capacity. See Tr. at 38-40. Moreau requested review by the Appeals Court, and the Appeals Court denied the request on January 6, 2017. See Stip. Facts ¶ 1. Following that denial, ALJ Bonsangue's May 25, 2016 Decision became a final decision reviewable by this court. See id. at 1-2. Moreau then filed this appeal on March 8, 2017. See Compl.

         III. FACTS

         The court adopts the facts as stated in the Stipulated Statement of Facts, to which both parties have agreed. See Stip. Facts. Where the Stipulated Statement of Facts was incomplete, the court draws additional facts from the Certified Transcript of the Record. See Tr. Only those facts relevant to the issues raised in the Motions before the court are set forth below.

         Moreau was born in 1971 and was 41 years old at the alleged date of onset of disability, January 31, 2013. See id. at 1, 3. Her past relevant work includes employment as a server in a country club, day laborer and landscaper, data entry specialist and receptionist, resort manager, housekeeper, and restaurant manager. See id. at 3. The ALJ found that Moreau suffered from severe impairments including a seizure disorder, an organic mental disorder, and post-traumatic stress disorder, as well as a non-severe impairment of intracranial injury caused by a fall that occurred in 2013. See Tr. at 30. The parties do not dispute the ALJ's findings as to Moreau's medically determinable impairments. Moreau had surgery to perform a right craniotomy after the intracranial injury in 2013. See id. at 505. In February 2015, the wound was infected, and the bone flap was removed. See id.

         Moreau testified that, after the fall, she received physical therapy, speech therapy, and memory therapy. See Stip. Facts ¶ 11. She also received mental health treatment for PTSD and anxiety until November 2015, when her treating psychiatrist passed away. See id. She testified that she suffers from seizures approximately once a month and treats her seizures with anticonvulsant medication. See id. She also testified that she experiences “extreme weakness” on her right side and has difficulty with balance. See id. at 12. She testified that, as a result, she uses a cane when leaving home and while at home, but she did not have a cane at the hearing because she indicated that it was broken. See id.

         A. Medical Opinion Evidence

         Moreau received follow-up treatment for her seizures and her craniotomy from St. Francis Medical Group Stroke Center (“St. Francis”). See id. at 10. Two of the doctors who provided her follow-up treatment were Dr. Bruce Chozick, MD, and Dr. Arjuna Mannam, MD. See Tr. at 410-33. The record includes progress notes from Dr. Chozick and Dr. Mannam, but no signed medical opinion from either. See id. The record does include two unsigned disability certificates from St. Francis. See Stip. Facts ¶ 10; Tr. at 419-21.

         The first disability certificate, dated March 7, 2014, states, “Kristin had brain surgery and is unable to work untill [sic] further notice. 12/20/2014 [Patient] had a Stroke and is taking medication Kepra and Percocet as well.” Tr. at 419, 421. The second disability certificate, dated August 5, 2014, states, “[Patient] has no neurosurgical issues, and does not require a follow up. [Patient] is not currently under the care of neurosurgery, and has not had any recent surgery. We cannot comment on her ability to take care of her child.” Tr. at 420. The ALJ accorded partial weight to both unsigned opinions. See id. at 37.

         Additionally, Moreau underwent two consultative examinations, one by Dr. Eric Frazer, PsyD, and one by Dr. April McLean, PsyD. See Stip. Facts ¶ 7-10. Dr. Frazer saw Moreau on January 14, 2013, as part of a child services case to determine whether Moreau could act as a guardian for her son. See id. at 7. Dr. Frazer found that Moreau suffered from post-traumatic stress disorder and dysthymic disorder and assigned her a Global Assessment of Functioning (“GAF”) score of 60, which indicates moderate symptoms and impairment. See id. at 8. He concluded that she could be reunited with her son once she obtained sufficient housing and income. See id. at 8. The ALJ accorded little weight to Dr. Frazer's opinion. See Tr. at 37-38.

         Dr. McLean interviewed Moreau, reviewed her records, and conducted a psychological assessment on July 23, 2014. See Stip. Facts ¶ 8-9. Dr. McLean diagnosed mild neurocognitive disorder due to brain injury and scored Moreau to be “low average” in immediate memory, “borderline” in visuospatial/constructional ability and language, and “extremely low” in attention and delayed memory. See id. at 9-10. Dr. McLean opined that Moreau “appeared to have neurocognitive limitations, including affect lability, concentration difficulties, and language impairments that affect her ability to maintain . . . a 40 hour work week.” Stip. Facts ¶ 10 (quoting Tr. at 407). The ALJ accorded partial weight to Dr. McLean's opinion. See Tr. at 36-37.

         Finally, two non-examining state medical consultants and two non-examining state psychological consultants reviewed Moreau's available medical evidence and completed a residual functional capacity assessment. See Stip. Facts ¶ 4-7. Dr. Earle Sittambalam, MD, opined that Moreau had no exertional limitations, could never climb ladders, ropes, or scaffolds, could frequently balance, could occasionally crawl, and should avoid concentrated exposure to noise or vibration and even moderate exposure to hazards. See id. at 4. Dr. Barbara Coughlin, MD, reached the same conclusion as Dr. Sittambalam, except that she opined that Moreau should avoid all exposure to hazards. See id. Dr. Kirk Johnson, PsyD, opined that Moreau had moderate limitations in understanding and memory, sustained concentration and persistence, social interaction, and adaptation. See id. at 5. Dr. Janine Swanson, PsyD, concluded that Moreau had the same limitations in understanding and memory, as well as sustained concentration and persistence, as Dr. Johnson. See id. Unlike Dr. Johnson, though, she opined in one part of her report that Moreau had only mild restrictions in social functioning. See id. at 6; Tr. at 139. Elsewhere in her report, she stated that Moreau had no limitations in social interaction. See Stip. Facts ¶ 7; Tr. at 143, 158. The ALJ accorded partial weight to all four of the state consultants' opinions without distinguishing between them. See Tr. at 37.


         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 the 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. 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. See 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 Moreau had not engaged in substantial gainful employment since January 31, 2013, and that Moreau suffered from three severe impairments: a seizure disorder, an organic mental disorder, and post-traumatic stress disorder. See Tr. at 29- 30. The ALJ then found at step three that Moreau's impairments, though severe, did not meet or medically equal a listed impairment, specifically considering Listings 11.02, 12.02, and 12.06. See id. at 30-33. The ALJ next assessed the following residual functional capacity (“RFC”):

After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that the claimant can occasionally climb ramps and stairs. The claimant can never climb ropes, ladders, or scaffolds. The claimant can frequently balance. The claimant can occasionally crawl. The claimant must avoid concentrated exposure to moderate noise levels and vibration. The claimant must avoid all exposure to any work hazards such as moving mechanical parts or unprotected heights. The claimant is limited to simple, routine, repetitive tasks and not at any production rate pace with only minimal changes in the work routine on a day-to-day basis.

Id. at 33. Finally, under steps four and five, the ALJ determined that Moreau was not able to perform any past relevant work, but could perform other jobs that exist in significant numbers in the national economy. See id. at 38-39.

         Moreau argues that the ALJ's Decision should be reversed or remanded for a number of reasons relating to the ALJ's determination of her RFC. First, she argues that the ALJ failed to adequately develop the administrative record by not seeking the identity of the unsigned opinions, which she contends were likely authored by Dr. Mannam, a treating source. See Memorandum in Support of Mot. to Reverse (“Mot. to Reverse Mem.”) (Doc. No. 20-1) at 3-6. Second, Moreau presents several arguments that the ALJ's weighing of the medical opinion evidence was not supported by substantial evidence. See id. at 6-9. She argues that the ALJ failed to articulate good reasons for not giving controlling weight to the unsigned opinions, which she contends might have been treating source opinions had the ALJ contacted St. Francis to identify the author. See id. at 6-7. She also argues that the ALJ erred in assigning only partial weight to Dr. McLean's opinion because the opinion is consistent with the medical record. See id. at 8-9. She further argues that the ALJ failed to address the conflict between Dr. Johnson's opinion and Dr. Swanson's opinion regarding the existence of limitations in social functioning. See id. at 9. Third, Moreau argues that, by discounting all of the medical opinion evidence, the ALJ played doctor in interpreting the raw medical data on his own. See id. at 7. Finally, Moreau argues that the RFC was not supported by substantial evidence because the ALJ failed to account for her use of a cane. See id. at 10-11.

         The court focuses its Ruling on Moreau's argument pertaining to the unsigned opinions and the ALJ's duty to develop the record. Because the court finds that the ALJ failed to develop the record, it also suggests that the ALJ revisit the other issues on remand, without finding it necessary to reach whether such arguments would themselves constitute legal error justifying 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 inquire into the availability of low-cost treatment on remand without reaching whether the failure to do so itself requires remand because the case was already being remanded for other ...

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