Henderson v. Berryhill

          ORDER REMANDING CASE

          ALVIN W. THOMPSON UNITED STATES DISTRICT JUDGE

         For the reasons set forth below, the decision of the Commissioner is reversed and this case is remanded for additional proceedings consistent with this order.

         “A 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).

         The 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.

         The 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.

         The 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.

         “[T]he 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)).

         “[I]f 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).

         The 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).

         In 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 error).

[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”).

         In 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).

         The 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).

         In 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 ...