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).
plaintiff argues, inter alia, that the ALJ failed to properly
weigh medical opinion evidence. Pl.'s Mem. to Reverse
(Doc. No. 17-1) at 1.
defendant argues that substantial evidence supports the
ALJ's Decision and the Decision is without legal error.
See Def.'s Mem. to Affirm (Doc. No. 23-1) at 2.
court concludes that, at minimum, the ALJ failed to follow
the treating physician rule when weighing the opinions of the
plaintiff's treating physicians, Dr. Tapas Bandypadhyay
and Dr. Sheldon Kafer, by failing to analyze all of the
required factors set forth in 20 C.F.R. § 404.1527(c)
and by failing to develop the record by making every
reasonable effort to re-contact the treating pulmonary
specialist to resolve inconsistencies and ambiguities. This,
standing alone, warrants remand, at which time the remaining
issues should also be addressed.
opinion of a claimant's treating physician as to the
nature and severity of the impairment is 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.'” Burgess v. Astrue, 537 F.3d 117,
128 (2d Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(2)).
controlling weight is not given to the opinions of the
treating physician, the ALJ . . . must specifically explain
the weight that is actually given to the opinion.”
Schrack v. Astrue, 608 F.Supp.2d 297, 301 (D. Conn.
2009) (citing Schupp v. Barnhart, No. Civ. 3:02CV103
(WWE), 2004 WL 1660579, at *9 (D. Conn. Mar. 12, 2004)).
“Failure to provide ‘good reasons' for not
crediting the opinion of a claimant's treating physician
is a ground for remand.” Snell v. Apfel, 177
F.3d 128, 133-34 (2d Cir. 1999) (citing Schaal v.
Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). These reasons
must be stated explicitly and set forth comprehensively.
See Burgin v. Asture, 348 Fed.Appx. 646, 649 (2d Cir
2009) (“The ALJ's consideration must be explicit in
the record.”); Tavarez v. Barnhart, 124
Fed.Appx. 48, 49 (2d Cir. 2005) (“We do not hesitate to
remand when the Commissioner . . . do[es] not comprehensively
set forth reasons for the weight assigned . . . .”)
(internal quotation marks and citation omitted); Reyes v.
Barnhart, 226 F.Supp.2d 523, 529 (E.D.N.Y.
2002)(“rigorous and detailed” analysis required).
ALJ's explanation should be supported by the evidence and
be specific enough to make clear to the claimant and any
subsequent reviewers the reasons and the weight given.
See 20 C.F.R. § 404.1527(f)(2); SSR 96-2p
(applicable but rescinded March 27, 2017, after the date of
the ALJ's decision).
determining the amount of weight to give to a medical
opinion, the ALJ must consider all of the factors set forth
in § 404.1527(c): the examining relationship, the
treatment relationship (the length, the frequency of
examination, the nature and extent), evidence in support of
the medical opinion, consistency with the record, specialty
in the medical field, and any other relevant factors. See
Schaal, 134 F.3d at 504 (“all of the factors cited
in the regulations” must be considered to avoid legal
[W]here there are deficiencies in the record, an ALJ is under
an affirmative obligation to develop a claimant's medical
history “even when the claimant is represented by
counsel or . . . by a paralegal.” Perez, 77
F.3d at 47; see also Pratts, 94 F.3d at 37
(“It is the rule in our circuit that ‘the ALJ,
unlike a judge in a trial, must  affirmatively develop the
record' in light of ‘the essentially
non-adversarial nature of a benefits proceeding.'[. . .
].”) (citations omitted).
Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
See also Clark v. Comm'r of Soc. Sec., 143 F.3d
115, 118-19 (2d Cir. 1998) (holding that the ALJ should have
sought clarifying information sua sponte because the doctor
might have been able to provide a supporting medical
explanation and clinical findings, that failure to include
support did not mean that support did not exist, and that the
doctor might have included it had he known that the ALJ would
consider it dispositive).
Gaps in the administrative record warrant remand . . . .
Sobolewski v. Apfel, 985 F.Supp. 300, 314
(E.D.N.Y.1997); see Echevarria v. Secretary of Health
& Hum. Servs., 685 F.2d 751, 755-56 (2d Cir. 1982).
. . .
The ALJ must request additional information from a treating
physician . . . when a medical report contains a
conflict or ambiguity that must be resolved, the
report is missing necessary information, or the report does
not seem to be based on medically acceptable clinical and
diagnostic techniques. Id. § 404.1512(e)(1).
When “an ALJ perceives inconsistencies in a
treating physician's report, the ALJ bears an affirmative
duty to seek out more information from the treating physician
and to develop the administrative record
accordingly, ” Hartnett, 21 F.Supp.2d
at 221, by making every reasonable effort to
re-contact the treating source for clarification of
the reasoning of the opinion. Taylor v. Astrue, No.
07-CV-3469, 2008 WL 2437770, at *3 (E.D.N.Y. June 17, 2008).
Toribio v. Astrue, No. 06CV6532(NGG), 2009 WL
2366766, at *8-*10 (E.D.N.Y. July 31, 2009)(emphasis
added)(holding that the ALJ who rejected the treating
physician's opinion because it was broad, “contrary
to objective medical evidence and treatment notes as a
whole”, and inconsistent with the state agency
examiner's findings had an affirmative duty to re-contact
the treating physician to obtain clarification of his opinion
that plaintiff was “totally incapacitated”).
determining whether there has been “inadequate
development of the record, the issue is whether the missing
evidence is significant.” Santiago v. Astrue,
2011 WL 4460206, at *2 (D. Conn. Sept. 27, 2011) (citing
Pratts v. Chater, 94 F.3d 34, 37-38 (2d Cir. 1996)).
“[T]he burden of showing that an error is harmful
normally falls upon the party attacking the agency's
determination.” Shinseki v. Sanders, 556 U.S.
396, 409 (2009).
ALJ's Decision states with respect to treating physicians
Dr. Tapas Bandypadhyay and Dr. Sheldon Kafer:
As for the opinion evidence, all opinions were carefully
considered and weighed.
. . .
Dr. Bandypadhyay completed a pulmonary impairment
questionnaire on September 23, 2015 (Ex. 11F, 12F). Dr.
Bandypadhyay indicated that the claimant had sarcoidosis and
obstructive sleep apnea (Id. at 1). He opined that
the claimant's ongoing impairments were expected to last
at least 12 months (Id.). Dr. Bandypadhyay indicated
that the claimant could perform his work in a seated position
for two hours and in a standing and/or walking position for
one hour (Id. at 3). He opined that the claimant
could occasionally lift and/or carry five to ten pounds (Ex.
12F at 4). Dr. Bandypadhyay's opinion is given little
weight, as it is inconsistent with the treatment
notes, which indicated that the claimant's cough
had improved through treatment and his lungs were
consistently clear (See Ex. 1F, 8F). There were questions as
to whether the claimant had sarcoidosis or another
granulomatous disease but the claimant's lymph nodes were
normal, as was his skin (See Ex. 1F). Treatment notes from
December of 2014 indicated that the claimant's
questionable diagnosis of granulomatous lung
disease was unlikely to be malignant (See Ex. 8F). The
claimant reported experiencing sleep apnea in March of 2013
(See Ex. 1F). By June of 2013, the claimant was doing well
overall and that his AHI was normal (See [i]d.). In August of
20I3, the claimant reported that he had no snoring, shortness
of breath, coughing, or daytime somnolence (See [i]d.).
Sheldon Kafer, M.D., a primary care physician, completed a
disability impairment questionnaire on December 22, 2014 (Ex.
9F, 10F). Dr. Kafer opined that the claimant's ongoing
impairment would be expected to last at least 12 months (Ex.
9F at 1, 10F at 1). He indicated that the claimant could
perform a job for two hours in a seated position during a
normal workday day and for one hour while standing and/or
walking (Id. at 3). Dr. [Kafer] opined that the
claimant could only occasionally lift and/or carry five to
ten pounds (Id.). He indicated that the claimant
could only do occasional grasping, do fine manipulations, and
reach with either upper extremity, except for right-handed
grasping, which was frequent (Id. at 4). Dr. [Kafer]
opined that the claimant's symptoms would likely increase
in a work environment and that he would occasionally
experience symptoms severe enough to interfere with work
(Id.). He indicated that the claimant would need to
take unscheduled breaks every three hours for 30 minutes
(Id.). Dr. [Kafer] opined that the claimant would be
absent more than three times a month and that the claimant
suffered from anxiety, which contributed to the
claimant's functional limitations (Ex. 10F at 5).
Dr. Kafer's opinion is given little weight, as it is
inconsistent with the treatment notes, which indicated that
the claimant's cough had improved through treatment and
his lungs were consistently clear (See Ex. 1F, 8F). There
were questions as to whether the claimant had sarcoidosis or
another granulomatous disease but the claimant's lymph
nodes were normal, as was his skin (See Ex. 1F). Treatment
notes from December of 2014 indicated that the claimant
questionable diagnosis of granulomatous lung disease was
unlikely to be malignant (See Ex. 8F). The claimant reported
experiencing sleep apnea in March of 2013 (See Ex. 1F). By
June of 2013, the claimant was doing well overall and that
his AHI was normal (See [i]d.). In August of 2013, the
claimant reported that he had no snoring, shortness of
breath, coughing, or daytime somnolence (See [i]d.). The
treatment notes also showed that the claimant was alert,
nontoxic, in no acute distress (See Ex. 1F, 8F).
R. at 34-35 (emphasis added).
places other than the section where treating source opinions
are addressed, the ALJ's Decision states the following
regarding Dr. Bandyopadhyay's treatment notes:
Treatment notes from Tapas Bandyopadhyay, M.D., who
specializes in pulmonology, on March 27, 2013, indicated that
the claimant was complaining of snoring (Ex. 1F at 28). Dr.
Bandyopadhyay noted that the claimant's cough had
improved through medication and that he had no dyspnea,
wheezing, or chest pain (Id.). On physical
examination, he noted that the claimant was alert and in no
acute distress (Id. at 29). Dr. Bandyopadhyay
observed that the claimant's throat had oropharyngeal
crowding but that his lymph nodes and lungs were normal
(Id.). He indicated that the claimant had
obstructive sleep apnea and that he discussed the various
treatment options with the claimant (Id.). On June
12, 2013, Dr. Bandyopadhyay noted that the claimant was doing
well overall and that the claimant's AHI was normal in
regards to his obstructive sleep apnea (Id. at 11).
. . .
Treatment notes from Dr. Bandyopadhyay on August 21, 2013,
indicated that the claimant had no snoring, shortness of
breath, coughing, or daytime somnolence (Ex. 1F at 4). He
noted that the claimant was doing well overall and that his
cough had improved markedly (Id.). On physical
examination, Dr. Bandyopadhyay indicated that the claimant
was alert and in no acute distress and had normal lung
functioning (Id. at 5). He noted there was a
question as to whether the ...