United States District Court, D. Connecticut
RULING ON CROSS-MOTIONS FOR JUDGMENT ON THE
R. Underhill United States District Judge.
instant Social Security appeal, Jessie James Walters, Jr.
moves to reverse the decision by the Social Security
Administration (SSA) denying him disability insurance
benefits. The Commissioner of Social Security moves to affirm
the decision. Walters raises two arguments of error in the
decision of the Administrative Law Judge (“ALJ”),
arguing that the ALJ failed to properly weigh the medical
opinion evidence, and that the ALJ inappropriately determined
that Walters' own testimony was not completely credible.
For the reasons set forth below, I agree with some of
Walters' arguments regarding the ALJ's failure to
properly weigh the medical opinion evidence, and I remand to
the ALJ for reconsideration in light of this ruling. The ALJ
appears to have discounted the opinions of Walters'
treating physicians primarily based on the inconsistency of
those opinions with the opinion of a single consulting
physician, on which the ALJ placed great weight. Although
that inconsistency might justify failing to accord
controlling weight to the opinions of the treating
physicians, it would be circular for that inconsistency to
itself provide the basis for preferring the assessment of the
consulting physician over the assessments of Walters'
treating physicians. Absent further explanation from the ALJ, I
am unable to properly evaluate his preference for the
consulting physicians' opinions. I therefore grant
Walters' motion to reverse or remand and deny the
Commissioner's motion to affirm.
I remand for reconsideration of the medical opinion evidence,
it is unnecessary for me to consider whether the ALJ properly
evaluated Walters' credibility, which must, in any event,
be determined in light of the appropriately weighted medical
Standard of Review
follows a five-step process to evaluate disability claims.
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013).
First, the Commissioner determines whether the claimant
currently engages in “substantial gainful
activity”. Greek v. Colvin, 802 F.3d 370, 373
n.2 (2d Cir. 2015) (citing 20 C.F.R. § 404.1520(b)).
Second, if the claimant is not working, the Commissioner
determines whether the claimant has a
“‘severe' impairment”, i.e.,
an impairment that limits his or her ability to do
work-related activities (physical or mental). Id.
(citing 20 C.F.R. §§ 404.1520(c), 404.1521). Third,
if the claimant does have a severe impairment, the
Commissioner determines whether the impairment is considered
“per se disabling” under SSA regulations.
Id. (citing 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526). If the impairment is not per se
disabling, then, before proceeding to step four, the
Commissioner determines the claimant's “residual
functional capacity” based on “all the relevant
medical and other evidence of record”. Id.
(citing 20 C.F.R. §§ 404.1520(a)(4), (e),
404.1545(a)). “Residual functional capacity” is
defined as “what the claimant can still do despite the
limitations imposed by his [or her] impairment.”
Id. Fourth, the Commissioner decides whether the
claimant's residual functional capacity allows him or her
to return to “past relevant work”. Id.
(citing 20 C.F.R. §§ 404.1520(e), (f),
404.1560(b)). Fifth, if the claimant cannot perform past
relevant work, the Commissioner determines, “based on
the claimant's residual functional capacity”,
whether the claimant can do “other work existing in
significant numbers in the national economy”.
Id. (20 C.F.R. §§ 404.1520(g),
404.1560(b)). The process is “sequential”,
meaning that a petitioner will be judged disabled only if he
or she satisfies all five criteria. See id.
claimant bears the ultimate burden to prove that he or she
was disabled “throughout the period for which benefits
are sought”, as well as the burden of proof in the
first four steps of the inquiry. Id. at 374 (citing
20 C.F.R. § 404.1512(a)); Selian, 708 F.3d at
418. If the claimant passes the first four steps, however,
there is a “limited burden shift” to the
Commissioner at step five. Poupore v. Astrue, 566
F.3d 303, 306 (2d Cir. 2009). At step five, the Commissioner
need only show that “there is work in the national
economy that the claimant can do; he need not provide
additional evidence of the claimant's residual functional
reviewing a decision by the Commissioner, I conduct a
“plenary review” of the administrative record but
do not decide de novo whether a claimant is
disabled. Brault v. Soc. Sec. Admin., Comm'r,
683 F.3d 443, 447 (2d Cir. 2012); see Mongeur v.
Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)
(“[T]he reviewing court is required to examine the
entire record, including contradictory evidence and evidence
from which conflicting inferences can be drawn.”). I
may reverse the Commissioner's decision “only if it
is based upon legal error or if the factual findings are not
supported by substantial evidence in the record as a
whole.” Greek, 802 F.3d at 374-75. The
“substantial evidence” standard is “very
deferential”, but it requires “more than a mere
scintilla”. Brault, 683 F.3d at 447-48.
Rather, substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Greek, 802 F.3d at
375. Unless the Commissioner relied on an incorrect
interpretation of the law, “[i]f there is substantial
evidence to support the determination, it must be
upheld.” Selian, 708 F.3d at 417.
was born in 1968, completed one year of college, and worked
as a fire safety director and a building manager prior to the
onset of his alleged disability. (Joint Stipulation of Facts,
Doc. # 15 [hereinafter, “Facts at ”], at 1.)
applied for Social Security Disability Benefits on November
6, 2013 and Social Security Income Benefits on November 8,
2013, alleging a period of disability beginning June 4, 2013.
(Facts ¶ 1.) Following denial of Walters' claims, he
requested a hearing before an Administrative Law Judge
(“ALJ”) on March 5, 2014. (Facts ¶ 1.) A
hearing was held before ALJ Michael Friedman on June 2, 2015,
subsequent to which ALJ Friedman found Walters not disabled
within the meaning of sections 216(i), 223(d), and
1614(a)(3)(A) of the Social Security Act. (Facts ¶ 1;
Transcript of the Certified Administrative Record, Doc. #
[hereinafter, “Tr. at ”], at 13.) Walters
requested review of the ALJ's decision by the Appeals
Council on August 18, 2015, and the Appeals Council denied
Walters' request on October 25, 2016. (Facts ¶ 1.)
to the first four steps of the five-step evaluation process,
the ALJ found, first, that Walters did not currently engage
in substantial gainful activity (Tr. at 15); second, that
Walters had the severe impairments of systemic lupus
erythematosus, diabetes with peripheral neuropathy and a
history of retinopathy, hand pain/reflex sympathetic
dystrophy/diabetic hand syndrome, cubital tunnel syndrome,
mild cervical spondylosis, and rheumatoid arthritis (Tr. at
16); third, that Walters' severe impairments were not per
se disabling (Tr. at 16-18); and, fourth, that Walters was
unable to perform any past relevant work (Tr. at 24).
However, pursuant to the fifth step of the five-step
evaluation process, and based on a determination of
Walters' residual functional capacity, the ALJ found that
Walters was able to engage in light work with certain
exceptions (Tr. at 18-24) and that Walters could therefore
perform jobs existing in significant numbers in the national
economy (Tr. at 24-25). Specifically, the ALJ found that
Walters could perform the requirements of the jobs of Usher
and Counter Clerk. (Tr. at 25.) Because the ALJ determined
that Walters could perform jobs existing in significant
numbers in the national economy, the ALJ found Walters not
disabled within the meaning pertinent to the Social Security
Act. (Tr. at 25.)
determining Walters' residual functional capacity, the
ALJ reviewed the medical opinions of Walters' treating
orthopedic surgeon, Dr. Seneviratne, Walters' treating
orthopedist, Dr. Diaz, Walters' treating rheumatologist,
Dr. Lipschitz, and Walters' treating internist, Dr.
Prabhakar, as well as consulting examiner Dr. Salon and
non-examining consultant Dr. Putcha.(Tr. at 18-24.) The ALJ also
considered Walters' own testimony regarding his
conditions and degree of impairment. (Tr. at 18-24.)
Seneviratne began treating Walters in March 2013, performed
surgery on Walters in August 2013, and last saw Walters on
January 29, 2014. (Facts ¶ 2-5.) Dr. Seneviratne saw
Walters repeatedly during that period. (Facts ¶ 2-5.)
The ALJ noted that Dr. Seneviratne had opined in an October
2013 report that Walters' was precluded from doing any
fine motor grasping, typing or any gross motor activities
with his left hand. (Tr. at 22 (citing Tr. at 255).) In such
report, Dr. Seneviratne stated that it was possible that
further joints in Walters' body would be affected by his
systemic lupus condition, and thus that it was “more
than reasonable to expect [Walters] to be permanently
disabled”. (Tr. at 255.) The ALJ also noted a February
6, 2014 opinion from Dr. Seneviratne, in which the doctor
noted that Walters was limited to standing or walking for
less than two hours and sitting for less than six hours in an
eight-hour workday. (Tr. at 22 (citing Tr. at 261).) In such
report, Dr. Seneviratne also stated that Walters was unable
to lift any weight. (Tr. at 260.) The ALJ gave Dr.
Seneviratne's opinions only “partial weight”,
apparently giving the February 2014 opinion something less
than controlling weight, because such opinion was
“inconsistent with the objective medical record”.
(Tr. at 22.) In explaining his finding that Dr.
Seneviratne's opinion was inconsistent with the record,
the ALJ cited exclusively to Dr. Salon's opinion. (Tr. at
Lipschitz began treating Walters in October 2013, saw Walters
again on May 4, 2015, and sent Walters for multiple
intervening x-rays. (Facts ¶ 5-7; Tr. at 334-40.) On May
4, 2015, Dr. Lipschitz diagnosed Walters with an overlap of
lupus and rheumatoid arthritis, and, in a “Lupus
Impairment Questionnaire” filled out on the same day,
Dr. Lipschitz observed evidence of malar rash,
photosensitivity, oral ulcers, non-erosive arthritis,
abnormal laboratory tests that documented anti-DNA in
abnormal titer, positive findings of antiphospholipid
antibodies, and a positive ANA test. (Facts ¶ 6-7; Tr.
at 278-82, 340.) In the Lupus Impairment Questionnaire, Dr.
Lipschitz opined that Walters would only be able to sit for
less than one hour and stand or walk for less than one hour
in an eight-hour workday. (Facts ¶ 7-8; Tr. at 280.) Dr.
Lipschitz also opined that, with either hand, Walters could
“never/rarely” lift up to five pounds, grasp,
turn, or twist objects, perform fine manipulations, or reach,
that Walters would have attention and concentration problems
for one-third to two-thirds of an eight-hour workday, and
that Walters would miss work more than three times a month
due to his impairments or treatment. (Facts ¶ 8; Tr. at
22, 280-82.) The ALJ accorded Dr. Lipschitz's opinions
little weight, explaining that the symptoms Dr. Lipschitz had
recorded in the Lupus Impairment Questionnaire were
insufficient to render Walters as disabled as Dr. Lipschitz
had indicated in the same questionnaire. (Tr. at 23.) The ALJ
also observed that the degree of disability Dr. Lipschitz
indicated in the questionnaire was inconsistent with Dr.
Seneviratne's observations in October 2013 and Dr.
Salon's observations in January 2014 (Tr. at 23 (citing
Tr. at 237-38, 312)) and Walters' own testimony that he
could use a tablet (Tr. at 23).
Prabhakar began treating Walters in December 2000, and last
saw him on March 21, 2015. (Facts ¶ 9.) The ALJ noted
that Dr. Prabhakar purportedly saw Walters four to eight
times per year during that interval, but observed that Dr.
Prabhakar provided no diagnostic or treatment records from
that period. (Tr. at 23.) The ALJ did not document any
attempts to contact Dr. Prabhakar in his decision, but the
Commissioner appears to have attempted to contact Dr.
Prabhakar twice in January 2014 and received no response to
either attempt. (Tr. at 349-50.) Dr. Prabhakar did provide a
“Multiple Impairment Questionnaire” dating from
June 2015, in which he indicated that Walters would be unable
to push, pull, kneel, bend, or stoop at work on a sustained
basis (Tr. at 347) and that Walters would need to be absent
from work “much” more than three times a month
(Tr. at 347). The ALJ gave Dr. Prabhakar's opinions
little weight, justifying his decision on the lack of