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Bukilici v. Colvin

United States District Court, D. Connecticut

September 25, 2018

ENGJELLUSHE BUKILICI, Plaintiff,
v.
CAROLYN W. COLVIN ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION Defendant.

          RULING ON PENDING MOTIONS

          Donna F. Martinez United States Magistrate Judge.

         Plaintiff, Engjellushe Bukilici, seeks judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for disability insurance benefits (“DIB”). (R. 9-27.) Pending before the court are plaintiff's motion to reverse the decision of the Commissioner (doc. #14) and defendant's motion to affirm the decision of the Commissioner (doc. #16). For the following reasons, plaintiff's motion to reverse the decision of the Commissioner (doc. #14) is GRANTED and defendant's motion to affirm the decision of the Commissioner (doc. #16) is DENIED.[1]

         I. Background

         On June 5, 2012, plaintiff filed an application for DIB alleging that she has been disabled since May 23, 2006, her onset date. Her date last insured is December 31, 2009.[2] (R. 12-13.) Plaintiff's application was denied initially and upon reconsideration. (R. 12.) She requested review by an Administrative Law Judge (“ALJ”). The ALJ held hearings on May 5, 2014 and March 19, 2015, at which the plaintiff, represented by counsel, testified. A vocational expert also testified. On April 8, 2015, the ALJ issued a decision that plaintiff “was not under a disability within the meaning of the Social Security Act from May 23, 2006 through the date last insured.” (R. 13.) On October 16, 2015, the Appeals Council denied review of the ALJ's unfavorable decision. (R. 1-6.) This action followed.

         II. The ALJ's Decision

         The ALJ followed the sequential evaluation process for assessing disability claims.[3] The ALJ found at step one that plaintiff had no substantial gainful employment since her alleged onset date through her date last insured of December 31, 2009. (R. 14.) At step two, the ALJ found that plaintiff has the severe impairments of cervical spine degenerative disc disease; post-traumatic stress disorder and post-concussive syndrome. (R. 14.) The ALJ found at step three that these impairments do not meet or medically equal a listed impairment. (R. 15.) The ALJ next determined that plaintiff retained the residual functional capacity (“RFC”)[4] “to perform medium work[5] as defined in 20 C.F.R. § 404.1567(c) except that she was limited to simple, routine tasks (assuming normal work breaks over an eight-hour day); and she was limited to occasional, superficial contact with the public, co-workers and supervisors.” (R. 17.) At step four, the ALJ determined that plaintiff was unable to perform her past relevant work through her date last insured. (R. 25.) At step five, considering plaintiff's age, education, work experience, and RFC, as well as the testimony of the vocational expert, the ALJ found that other jobs existed in significant numbers in the national economy that plaintiff could have performed. (R. 26.)

         III. Standard of Review

         “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 (2d Cir. 1981). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive . . . .” 42 U.S.C. § 405(g). Accordingly, the district court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.; Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to first ascertain whether the Commissioner applied the correct legal principles in reaching her conclusion, and then whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, a decision of the Commissioner cannot be set aside if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Further, if the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

         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)). Substantial evidence must be “more than a scintilla or touch of proof here and there in the record.” Williams v. Bowen, 859 F.2d at 258.

         IV. Discussion

         Plaintiff's medical record is lengthy and complex: she has treated with emergency room physicians, internists, neurologists, neurosurgeons, psychiatrists, psychologists, and cardiologists, among others. (R. 96-144 and 495-974.)[6] She argues[7] that remand is warranted because the ALJ failed to follow the treating physician rule as to the opinions of her treating physicians and therapists.

         Under the “treating physician rule, ” a treating physician's opinion is accorded controlling weight when it is “well- supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2).[8] The ALJ must “give good reasons” for the weight accorded to the treating physician's opinion. See Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188, at *5 (July 2, 1996) (ALJ's decision “must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.”).

         If controlling weight is not given to a treating source's opinion, the ALJ must consider certain factors in determining the weight to be assigned. Those factors include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the supportability of the opinion; (4) the opinion's consistency with the record; (5) the treating physician's specialization, if any; and (6) other factors brought to the ALJ's attention. 20 C.F.R. § 404.1527(c)(2); see also Greek v. Colvin, 802 F.3d 370, 376 (2d Cir. 2015) (“[T]o override the opinion of the treating physician, we have held that the ALJ must explicitly consider” these factors).

         A. Dr. Kaplove's April 17, 2014 Opinion

         The plaintiff first argues that the ALJ erred as to the April 17, 2014 opinion of her treating neurologist, Dr. Kaplove.[9]Dr. Kaplove began treating plaintiff on June 22, 2006, shortly after the plaintiff sustained her head injury. (R. 513-515.) He saw plaintiff at least five times between 2006 and 2014. (R. 513-515, 959-974.)

         In his April 17, 2014 his opinion, Dr. Kaplove stated: “it is suspected that a head injury on May 23, 2006 triggered [plaintiff's] chronic headaches;” her headaches were “severe;” it is likely that the headaches contribute to the plaintiff's anxiety and depression; and that the plaintiff has ...


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