United States District Court, D. Connecticut
RULING RE: MOTION TO REVERSE THE DECISION OF THE
COMMISSIONER (DOC. NO. 19) AND MOTION TO AFFIRM THE DECISION
OF THE COMMISSIONER (DOC. NO. 22)
C. Hall, United States District Judge
Jose Delgado brings this action under section 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 his
application for Title XVI supplemental security income.
See Complaint (“Compl.”) (Doc. No. 1) at
1. Delgado seeks reversal of the Decision rendered by the
Administrative Law Judge (“ALJ”) Brian Curley,
which affirms the Commissioner's denial. See
Motion to Reverse the Decision of the Commissioner
(“Mot. to Reverse”) (Doc. No. 19). The
Commissioner cross-moves for an order affirming the Decision.
See Motion to Affirm the Decision of the
Commissioner (“Mot. to Affirm”) (Doc. No. 22).
reasons set forth below, the Motion to Reverse the Decision
of the Commissioner is GRANTED. The Motion
to Affirm the Decision of the Commissioner is
DENIED. The case is remanded to the ALJ for
proceedings consistent with this Ruling.
applied for supplemental security income benefits on May 7,
2013. See Joint Statement of Facts (“Joint
Facts”) (Doc. No. 19-2) at 1; Certified Transcript of
Record (“Tr.”) (Doc. No. 11) at 11. The
Commissioner denied Delgado's application initially on
August 30, 2013, and upon reconsideration on January 21,
2014. See Tr. at II, 84-88, 96-99. Delgado requested
a hearing with an ALJ, which was held by video conference
before ALJ Curley on September 29, 2015. See id. at
October 27, 2015, ALJ Curley issued an unfavorable Decision
for Delgado, affirming the Commissioner's denial and
finding that Delgado was not disabled. See Id. at
11-21. Specifically, ALJ Curley found that, based on
Delgado's residual functional capacity, he could perform
past relevant work as an industrial cleaner. See id.
at 20. Delgado requested review by the Appeals Court, and the
Appeals Court denied the request on December 2, 2016. See
id. at 1-4. Following that denial, ALJ Curley's
October 27, 2015 Decision became a final decision reviewable
by this court. Delgado then filed this appeal on January 12,
2017. See Compl.
court adopts the facts as stated in the Joint Statement of
Facts, to which both parties have agreed. See Joint
Facts; Memorandum in Support of Motion to Affirm the
Commissioner's Decision (“Mot. to Affirm
Mem.”) (Doc. No. 22-1) at 2. Only those facts relevant
to the issues raised in the Motions before the court are set
was born on July 27, 1957,  and alleges an onset of
disability beginning November 18, 2011. See Joint
Facts ¶ 1; Tr. at 11. His disability application alleged
impairments including asthma, anxiety, depression, blurry
vision, sleep problems, nervous problems, body pain,
headaches, and memory problems. See Joint Facts
¶ 1. Delgado testified that he previously worked at a
hotel for almost three years “doing laundry, taking out
trash, and cleaning toilets.” See id. at 19.
He testified that the extreme heat from the laundry was
affecting his asthma and, after a discussion with his
supervisor, he was let go. See id. He has not worked
since 2011. See id. at 1.
records indicate that Delgado received treatment at Hartford
Behavioral Health, Charter Oak Health Center, Hartford
Hospital Liver Transplant Program, and Hartford Hospital
Emergency Room. See id. at 2-11. He was evaluated at
Hartford Behavioral Health on October 16, 2012, by Juliana
Steahr, NPC, who diagnosed him with adjustment disorder with
mixed anxiety and depression, alcohol dependence, and cocaine
dependence. See id. at 2. He was subsequently
treated by Jeannie Dilworth, APRN, Katherine Bonilla,
MSW/ADC, Linda Thorpe, MSW, and Sarah Eliason, LCSW. See
id. at 2-11. Bonilla changed the primary diagnosis to
bipolar disorder on April 15, 2013. See id. at 3.
Charter Oak Health Center, Delgado was treated for
hyperlipidemia, hepatitis C, and asthma. See id. at
7-8. His treating physicians for these conditions included
Dr. Rita Bustamante, MD, and Dr. Brimal Patel, MD. See
id. at 8-10. He was also treated by Dr. Mohammed Teleb
and Dr. Thomas Winters for hallux abducto valgus, or chronic
painful bunions. See id. at 7-10. On May 22, 2013,
Dr. Mohammed diagnosed the bunions, debrided the calluses,
and applied tube foam. See id. at 7-8. Delgado
reported immediate relief. See id. at 8. Dr. Teleb
also referred Delgado for surgical correction and prescribed
antifungal treatment for the mycotic nails, but Delgado did
not attend the surgical appointment. See id. On
September 10, 2014, Delgado was seen by Dr. Thomas Winters, a
podiatrist, regarding the bunions and requested a surgical
consult. See id. at 9. He had the pre-operative
examination on December 23, 2014, but he had still not had
the surgery by the date of the hearing on September 19, 2015.
See id. at 9; Tr. at 38-39.
hepatitis C, Delgado was referred to Hartford Hospital Liver
Transplant Program, where he was evaluated by Dr. Colin
Swailes, MD. See Joint Facts ¶ 10. Dr. Swailes
indicated that Delgado had most likely spontaneously cleared
the virus and would not need treatment. See id.
Although the liver function tests excluded chronic hepatitis
C, Dr. Swailes suspected celiac disease and ordered a biopsy
to confirm. See id. The record does not indicate the
results of the biopsy, nor have either of the parties
presented additional information confirming whether Delgado
suffers from celiac disease or not. See Memorandum
in Support of Motion to Reverse the Commissioner's
Decision (“Mot. to Reverse Mem.”) (Doc. No. 19-1)
at 8 (stating that celiac disease “had not been worked
Delgado went to the Hartford Hospital Emergency Room on four
occasions. See Joint Facts ¶ 10-11. On August
11, 2012, he was seen for acute exacerbation of chronic
asthma and acute bronchitis. See id. at 10. On
October 25, 2013, he complained of rib, back, and chest pain.
See id. at 11. On December 12, 2014, he again was
seen for chest pain. See id. Finally, on April 9,
2015, he was seen for productive cough and lung pain related
to his asthma, and the emergency department doctor diagnosed
him with upper respiratory infection, bronchitis with acute
asthma, and influenza like symptoms. See id.
Medical Opinion Evidence
record contains two opinions from providers who treated
Delgado. The first opinion (the “Bonilla
opinion”) was completed by Katherine Bonilla, MSW/ADC,
Jeannie Dilworth, APRN, and Marian Moca, MD, on May 15, 2013.
See Joint Facts ¶ 11. The report indicates that
they had been treating Delgado since June 28, 2012, for
bipolar disorder with slight improvement. See id.
They reported that Delgado had a slight problem (rated 2 out
of 5) with caring for his own physical needs, an obvious
problem (rated 3 out of 5) with personal hygiene and using
coping skills to meet the ordinary demands of a work
environment, and a serious problem (rated 4 out of 5) with
using good judgment regarding safety and dangerous
circumstances and handling frustration appropriately. See
id. at 12. The record appears to be missing the third
page of their four-page opinion. See Tr. at 281-83.
The ALJ did not give the opinion substantial weight. See
id. at 18-19.
second opinion (the “Thorpe opinion”) was
completed by Linda Thorpe, MSW, and Jeannie Dilworth, APRN,
on October 21, 2013. See Joint Facts ¶ 12.
Thorpe and Dilworth had also been treating Delgado since June
28, 2012, for bipolar disorder, which was recurrent and
severe, and alcohol and cocaine dependence, which were in
remission. See id. Their report indicates no
improvement. See Tr. at 309. They opined that
Delgado had no problem (rated 1 out of 5) with taking care of
personal hygiene, caring for his physical needs, using good
judgment regarding safety and dangerous circumstances, asking
questions or requesting assistance, and responding
appropriately to others in authority. See Joint
Facts ¶ 12-13. They further opined that he had a slight
problem (rated 2 out of 5) with handling frustration
appropriately, an obvious problem (rated 3 out of 5) with
changing from one simple task to another, and a serious
problem (rated 4 out of 5) with interacting appropriately
with others in a work environment and with carrying out
simple instructions. See id. at 13. Finally, they
opined that he had a very serious problem (rated 5 out of 5)
with using appropriate coping skills to meet the ordinary
demands of a work environment, getting along with others
without distracting them or exhibiting behavioral extremes,
carrying out multi-step instructions, focusing long enough to
finish assigned simple activities or tasks, performing basic
work activities at a reasonable pace, and performing work
activities on a sustained basis. See id. The ALJ
also did not give the opinion substantial weight.
See Tr. at 18-19.
Joint Statement of Facts refers to both of the above opinions
as treating source reports, see Joint Facts ¶
11-13, but the court notes that only the Bonilla opinion is
co-signed by an acceptable medical source and is therefore
appropriately considered a treating source
addition, Delgado was also examined by a non-treating
consultative examiner, Dr. Dodenhoff, MD, on August 22, 2013.
See id. at 13. Dr. Dodenhoff conducted a physical
examination and opined that Delgado could sit, stand, walk,
lift, and handle objects. See id. at 14. As part of
the examination, Dr. Dodenhoff also evaluated Delgado's
mental status and reported normal findings. See id.
He opined that Delgado could understand, remember, and carry
out instructions, as well as respond appropriately to
supervision and coworkers. See id. The ALJ gave Dr.
Dodenhoff's opinion substantial weight. See Tr.
two non-examining state medical consultants and two
non-examining state psychological consultants provided
medical opinions based on a review of the available evidence
in the record. At the initial review stage, Dr. Lenworth
Ellis, MD, opined that Delgado's asthma was a severe
impairment, but that his hepatitis C, bunions, and vision
problems were non-severe. See Joint Facts ¶ 16.
Based on Delgado's asthma, Dr. Ellis found that Delgado
had no exertional limitations, but did have environmental
limitations, specifically the need to avoid concentrated
exposure to extreme heat or cold, wetness, humidity, fumes,
odors, dusts, gases, and poor ventilation. See id.
On reconsideration, Dr. Annita Bennett, MD, found that
Delgado had no severe impairments and did not note any
limitations. See id. at 17. The ALJ gave Dr.
Ellis's and Dr. Bennett's opinions reduced weight.
See Tr. at 19.
Delgado's psychological limitations, at the initial
review stage, Dr. Thomas Hill, MD, opined that Delgado had
moderate limitations in understanding, remembering, and
carrying out detailed instructions, working in coordination
with others, interacting appropriately with the general
public, maintaining socially appropriate behavior, adhering
to basic standards of neatness and cleanliness, and setting
realistic goals or plans independently of others.
See Joint Facts ¶ 15. On reconsideration, Dr.
Marc Zekowski, PhD, reached the same conclusions as Dr. Hill
as to the limitations stated above. See id. at 17.
The ALJ gave Dr. Hill's and Dr. Zekowski's opinions
great weight. See Tr. at 19.
STANDARD OF REVIEW
not the 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); see also 42 U.S.C. § 1383(c)(3)
(2016) (indicating that review under section 1383(c) is
subject to the same review as provided in section 405(g) of
title 42). Instead, the court may only set aside the
ALJ's determination as to 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. See 42 U.S.C. § 405(g)
(2016); Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir.
416.920 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. § 416.920 (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
Petrie v. Astrue, 412 Fed. App'x 401, 404 (2d
Cir. 2011) (internal citations omitted).
case, the ALJ found at step one that Delgado had not engaged
in substantial gainful activity since May 7, 2013, the date
on which he filed his application. See Tr. at 13. At
step two, the ALJ found that Delgado suffered from three
severe impairments: asthma, depression, and personality
disorder. See id. The ALJ further found that
Delgado's hyperlipidemia, left ring finger fracture,
hallux valgus deformities (bunions), and polysubstance
dependence were non-severe impairments. See id. at
13-14. The ALJ also concluded that Delgado's heptatitis C
and potential celiac disease were not sufficiently medically
determinable and that his headaches, back pain, and chest
pain were symptoms not related to any medically determinable
impairments. See id. at 14. However, the ALJ stated
that he considered Delgado's headaches, back pain, and
chest pain in formulating Delgado's residual functional
capacity (“RFC”) nonetheless. See id.
three, the ALJ then found that none of Delgado's
impairments met or medically equaled a listed impairment,
specifically considering Listings 3.02, 3.03, 12.04, and
12.08. See id. at 14-16. The ALJ next assessed the
After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform
medium work as defined in 20 C.F.R. § 416.967(c) with
the ability to stand, walk, and sit 6 hours each out of an
8-hour day and lift 50 pounds occasionally and 25 pounds
frequently. However, the claimant must avoid more than
occasional exposure to respiratory and pulmonary irritants,
extreme heat, cold, humidity, and exposure to animals. He
cannot work in food preparation or food service. He can
maintain concentration, persistence, and pace to carryout
simple, routine, repetitive instructions in two-hour
increments in a work environment that is goal-oriented and
not production paced. He is able to function alone and relate
with work staff when motivated. He is able to adapt to
Id. at 16. At step four, the ALJ determined that,
based on this RFC, Delgado was able to perform past relevant
work as a cleaner and therefore was not disabled. See
id. at 20.
now makes a vast number of arguments in support of his Motion
to Reverse the Decision of the Commissioner. The court
broadly organizes these arguments into four
categories. First, Delgado makes a number of arguments
that the ALJ failed to develop the record. See Mot.
to Reverse Mem. at 5-9. These include, inter alia,
that the ALJ failed to obtain certain records, that the ALJ
should have ordered a psychological consultative examination
in addition to a physical one, and that the ALJ relied on his
own lay interpretation of the evidence because there was no
treating source opinion on Delgado's physical
limitations. See id. at 5-9, 21-22. Delgado also
challenges several aspects of the hearing, including that the
ALJ failed to meaningfully canvas Delgado, that the ALJ
permitted the VE to appear by telephone, that Delgado's
hearing testimony was inaudible and unintelligible, and that
the ALJ used an interpreter from his own office rather than
an interpreter service. See id. at 5-9.
Delgado argues that the ALJ failed at step two to consider
all of Delgado's medically determinable impairments.
See id. at 9-12. Specifically, Delgado argues that
the ALJ erred in finding that Delgado's bunions and back
pain were not severe. See id. Delgado also notes
that the ALJ afforded great weight to the state psychological
consultants, but omitted anxiety as a severe impairment even
though the state consultants considered it to be severe.
See id. at 19-21. However, Delgado acknowledges
that, even if this was error, it may be harmless because the
ALJ did not alter his RFC to reflect the omission of anxiety
as a severe impairment. See id. at 21.
Delgado advances a number of arguments that the RFC is not
supported by substantial evidence. See id. at 12-26.
These include, inter alia, that the ALJ assigned
less than substantial weight to Delgado's treating source
opinions in violation of the treating physician rule, that
the ALJ erred in relying on the state psychological
consultants' RFCs because they were based on incomplete
information, that the ALJ erred in relying on Dr. Ellis's
RFC because he reviewed only three clinical appointments,
that the ALJ disregarded Delgado's testimony about his
pain, that the ALJ improperly discounted Delgado's
depression, that the ALJ improperly relied on Delgado's
receipt of benefits, and that the ALJ failed to include
social restrictions in the RFC despite Delgado's severe
personality disorder. See id.
Delgado argues that the ALJ erred at step four in finding
that Delgado could perform his past work as an industrial
cleaner because the ALJ mischaracterized Delgado's past
work. See id. at 1-5. He argues that this past work
was a composite job that involved both laundry and cleaning,
which should not have been separated into two jobs of laundry
worker and industrial cleaner. See id. He further
argues that the ALJ did not ...