United States District Court, D. Connecticut
RULING ON CROSS MOTIONS TO REMAND AND AFFIRM THE
DECISION OF THE COMMISSIONER OF SOCIAL SECURITY
Jeffrey Alker Meyer United States District Judge
Mary Isureal alleges that she is disabled and cannot work as
a result of a number of impairments, chiefly including
diabetes and peripheral neuropathy. She has brought this
action seeking review of a final decision of defendant, the
Commissioner of Social Security, which granted her claim for
Supplemental Security Income Benefits only as to a closed
period from May 26, 2010 through June 7, 2012, but not before
or after. Magistrate Judge Margolis has issued a
recommended ruling (Doc. #25) that I deny defendant's
motion to affirm the decision of the Commissioner (Doc. #22)
and that I grant in part plaintiff's motion to reverse or
remand (Doc. #17), insofar as it seeks a remand to the
Commissioner for a new hearing.
filed a timely objection (Doc. #26) to Judge Margolis's
ruling, arguing that Judge Margolis erred in holding (1) that
the ALJ did not adequately evaluate whether plaintiff's
impairments met or equaled listing 11.14; (2) that the ALJ
violated the treating physician rule; and (3) that the ALJ
did not adequately evaluate plaintiff's credibility. I
assume the parties' familiarity with the factual record
and governing law as described at length by Judge Margolis.
See also Burgess v. Astrue, 537 F.3d 117, 127 (2d
Cir. 2008) (“A district court may set aside the
Commissioner's determination that a claimant is not
disabled only if the factual findings are not supported by
‘substantial evidence' or if the decision is based
on legal error.”).
Court “may adopt those portions of the recommended
ruling to which no timely objections have been made, provided
no clear error is apparent from the face of the
record.” Dafeng Hengwei Textile Co. v. Aceco Indus.
& Commercial Corp., 54 F.Supp.3d 287, 291 (E.D.N.Y.
2014). I find no clear error in the portions of the
recommended ruling for which no objection has been made. As
for defendant's three objections to the recommended
ruling, I will review those “parts of the report and
recommendation to which the party objected under a de
novo standard of review.” Ibid.; see
also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).
with Judge Margolis that the ALJ did not comply with the
treating physician rule. Under the regulations, a treating
physician's opinion is to be 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.” 20 C.F.R. § 404.1527(c)(2). Only
after an ALJ has determined that a treating source
opinion should not get controlling weight do other factors,
such as consistency, come into play. See ibid.; 20
C.F.R. § 404.1527(c)(3)-(c)(6). As Judge Margolis notes,
the ALJ's ruling gave “no weight” to the
opinion of Dr. DeMatteo-Santa but neither made an express
finding that her opinion was not entitled to controlling
weight under § 404.1527(c)(2) nor expressly considered
how much weight the opinion should be given under the other
the ALJ concluded, erroneously, that Dr. DeMatteo-Santa's
opinion was entitled to no weight because she is a
podiatrist, not a medical doctor. As explained in the
recommended ruling, a podiatrist is an acceptable medical
source for purposes of establishing impairments of the foot.
Doc. #25 at 32-33. Defendant is incorrect to suggest that Dr.
DeMatteo-Santa's opinion “went well beyond
foot/ankle function to opine that plaintiff was completely
restricted from lifting, carrying, or bending.” Doc.
#26 at 5. All of these functions involve placing weight on
the feet. Indeed, Dr. DeMatteo-Santa's conclusion that
plaintiff should not lift, carry, or bend might be thought to
follow a fortiori from her opinion that plaintiff
“should not perform any activity involving standing
[or] walking.” Doc. #11-9 at 82.
finding alone is enough to warrant remand. On remand,
however, the ALJ should also be sure to address the other
concerns raised in the recommended ruling. In considering the
medical opinion evidence of Dr. Perlin, the ALJ should be
sure to make explicit findings as required by the regulations
and the treating source rule. The ALJ should clearly explain
how much weight is being given to each portion of Dr.
Perlin's opinion, and why, and these explanations should
account for the fact that Dr. Perlin's evaluations do not
appear to have changed between the closed period during which
the ALJ found disability and the subsequent period where the
ALJ found improvement.
remand the ALJ should also thoroughly consider whether
plaintiff meets or equals the criteria of listing 11.14, and
should clearly explain whatever conclusion he may reach.
Defendant correctly cites Berry v. Schweiker, 675
F.2d 464 (2d Cir. 1982) (per curiam), for the
proposition that a reviewing court may affirm an ALJ's
decision even if that decision fails to provide an
“express rationale” for its conclusions, so long
as the administrative record as a whole demonstrates that the
decision was supported by substantial evidence. Id.
at 468. But Berry also warned that, because a
reviewing court's task is made much more difficult when
no express reasoning is given, “in future cases in
which the disability claim is premised upon one or more
listed impairments of Appendix 1, the Secretary should set
forth a sufficient rationale in support of his decision to
find or not find a listed impairment.” Id. at
neither the ALJ's decision nor the underlying medical
opinion of Dr. Golkar upon which it relies discusses the
application of the listing 11.14 criteria to plaintiff's
case, this is a case in which the Court is “unable to
fathom the ALJ's rationale in relation to evidence in the
record.” Ibid. Thus, if on remand the ALJ
again concludes that plaintiff does not meet or equal the
criteria of listing 11.14, he should provide a sufficient
reasoned explanation to permit this Court to review that
on remand the ALJ should be sure to assess the credibility of
plaintiff's testimony carefully, and without
misunderstanding. See Doc. #25 at 51-52. Likewise,
any finding of medical improvement should be considered in
light of a proper evaluation of the record.
I agree with Judge Margolis's conclusions in all
respects, I will adopt her recommended ruling (Doc. #25).
Plaintiff's motion to reverse or remand the decision of
the Commissioner (Doc. #17) is GRANTED in part, insofar as it
seeks remand to the Commissioner for further proceedings, and
DENIED in part, insofar as it seeks outright reversal and the
entry of judgment. Defendant's motion to affirm the
decision of the Commissioner (Doc. #22) is DENIED. The case
is remanded to the Commissioner for further proceedings
consistent with this opinion.