United States District Court, D. Connecticut
ORDER REMANDING CASE
W. Thompson United States District Judge
reasons set forth below, the decision of the Commissioner is
reversed and this case is remanded for additional proceedings
consistent with this order.
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.C. § 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). Substantial evidence
is “‘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)). It is
“more than a mere scintilla or touch of proof here and
there in the record.” Williams, 859 F.2d at 258.
the plaintiff claims that the ALJ did not apply the correct
legal principles because he “failed to properly
evaluate Ms. Pino's pain and functional limitations
imposed by her pain, as described in her testimony; and 2)
failed to properly determine Ms. Pino's Residual
Functional Capacity.” Pl.'s Mem. to Reverse
(“Doc. No. 15-1”) at 2. The defendant argues that
the Administrative Law Judge's “decision is
supported by substantial evidence and is based upon the
application of the correct legal standards.” Def.'s
Mem. to Affirm (Doc. No. 19-1) at 1.
order to determine whether a claimant is disabled within the
meaning of the Social Security Act, the Administrative Law
Judge (“ALJ”) must follow a five-step evaluation
process: (1) consider whether the claimant is currently
engaged in substantial gainful activity; (2) if not, whether
the claimant has a “severe impairment” which
limits his or her mental or physical ability to do basic work
activities; (3) if so, ask whether, based solely on the
medical evidence, the claimant has an impairment that
“meets or equals” an impairment listed in
Appendix 1 of the regulations; if so, and the claimant meets
the duration requirements, the ALJ will find him or her
disabled, without considering vocational factors such as age,
education, and work experience; (4) if not, the ALJ asks
whether, despite the claimant's severe impairment, he or
she has the residual functional capacity (“RFC”)
to perform his or her past work; and (5) if not, determine
whether there is other work which the claimant could perform.
See 20 C.F.R. § 416.920(a)(4)(i)-(v).
substance, the plaintiff challenges the ALJ's credibility
findings when determining the RFC at Step Four. “When
determining a claimant's RFC, the ALJ is required to take
the claimant's reports of pain and other limitations into
account . . . .” Genier v. Astrue, 606 F.3d 46, 49 (2d
Cir. 2010) (citing 20 C.F.R. § 416.929); Connors v.
Connecticut General Life Ins. Co., 272 F.3d 127, 136 (2d.
Cir. 2001) (“It has long been the law of this Circuit
that the subjective element of pain is an important factor to
be considered . . . .” (citation and internal quotation
marks omitted)). The Social Security regulations provide a
two-step process for evaluating assertions of pain: First,
determine whether there is a medically determinable physical
impairment shown by medically acceptable clinical and
laboratory diagnostic techniques that could reasonably be
expected to produce the plaintiff's pain; and second,
evaluate the intensity, persistence, and limiting effects of
the symptoms to determine the extent to which those symptoms
limit the individual's ability to do basic work
activities. See 20 C.F.R. § 416.929(a)-(c); SSR
also 42 U.S.C. § 423(d)(5)(A).
case, the ALJ found that the plaintiff's left knee
meniscal tear was a severe impairment (R. at 25) and that the
medically determinable impairment could reasonably be
expected to produce the plaintiff's pain (R. at 29) but
found that the plaintiff's “statements concerning
the intensity, persistence and limiting effects of these
symptoms” were “not entirely credible” (R.
at 29) because “[t]he documentary medical evidence of
record does not support a finding of the level of limitation
alleged” by the plaintiff (R. at 30). Consequently, the
ALJ did not credit her statements and incorporate them into
the RFC except to the extent “portions thereof support
the assigned” RFC (R. at 32).
recognition of the fact that an individual's symptoms can
sometimes suggest a greater level of severity of impairment
than can be shown by the objective medical evidence alone,
the regulations require that “any statements of the
individual concerning his or her symptoms must be carefully
considered if a fully favorable determination or decision
cannot be made solely on the basis of objective medical
evidence.” 20 C.F.R. § 416.929; SSR 96-7p.
to 20 C.F.R. § 416.929(c), when assessing the
credibility of an individual's statements, in addition to
objective medical evidence such as “reduced joint
motion, muscle spasm and sensory deficit”, the ALJ must
consider other kinds of evidence such as longitudinal
history, information provided by medical and nonmedical
sources and evidentiary inconsistencies and conflicts. The
ALJ must also consider seven specific factors: (i) daily
activities, (ii) location, duration, frequency, and intensity
of pain or other symptoms, (iii) precipitating and
aggravating factors, (iv) type, dosage, effectiveness, and
side effects of medication, (v) treatment other than
medication used for relief of pain or other symptoms, (vi)
any measures used to relieve pain or other symptoms, and
(vii) other factors concerning functional limitations and
restriction due to pain or other symptoms. See 20 C.F.R.
§ 416.929(c)(3); SSR 96-7p.
additional information is needed to assess the credibility of
the individual's statements about symptoms and their
effects, the adjudicator must make every reasonable effort to
obtain available information that could shed light on the
credibility of the individual's statements." SSR
finding on the credibility of the individual's statements
cannot be based on an intangible or intuitive notion . . . .
The reasons for the credibility finding must be grounded in
the evidence and articulated” and “must be
sufficiently specific to make clear to the individual and to
any subsequent reviewers the weight the adjudicator gave to
the individual's statements and the reasons for that
weight." SSR 96-7p. See also Williams v. Bowen, 859 F.2d
255, 260-61 (2d Cir. 1988) (The basis for the credibility
finding “must . . . be set forth with sufficient
specificity to permit intelligible plenary review of the
record.”) (citing Carroll v. Sec'y of Health and
Human Serv., 705 F.2d 638, 643 (2d Cir. 1983)). “This
 is necessary in order to give the individual a full and
fair review of his or her claim, and in order to ensure a
well-reasoned determination or decision.” SSR 96-7p.
part, the ALJ supported his conclusion that the
plaintiff's alleged limitations were not entirely
credible with the MRIs taken on February 19, 2013 and March
6, 2015, the physical therapy records from September 17, 2013
through October 31, 2013, and Dr. Boland's neurological
reports of the May 20, 2014 and July 24, 2014 consultations.
the February 19, 2013 MRI, the Decision states:
An MRI from February 2013 found a small radial tear of the
lateral meniscus and an underlying cartilage fissure.
(Exhibit 4F) Around this time, physical examination findings
revealed a full range of motion and no evidence of swelling .
R. at 28 (citing Ex. 8F). This mischaracterizes the report
and the evidence. As to the report, the findings included
a linear full thickness articular cartilage fissure through
mid to posterior lateral tibial plateau . . . . underlying
osteochondral lesion in the lateral tibial plateau with
moderate surrounding bone marrow edema likely reactive
changes. There is a small overlying radial tear involving the
free edge of the lateral meniscus at its junction of the body
and posterior horn.
Ex. 4F at R. 273, Ex. 5F R. at 312.
the reference to a “full range of motion”, the