United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND
THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE
MICHAEL P. SHEA, U.S.D.J.
appeal from the Social Security Commissioner's denial of
benefits, Eric DeCava argues that the Administrative Law
Judge (“ALJ”) (1) insufficiently developed the
record; (2) violated the treating source rule; (3) made
unsupported vocational findings; and (4) did not adequately
evaluate his claims of pain. ECF No. 20-2. I find that the
ALJ insufficiently developed the record. On remand, the ALJ
must develop the record and reevaluate Mr. DeCava's
residual functional capacity assessment and subjective
complaints in light of the new record. I do not reach Mr.
DeCava's remaining claims.
Procedural History, Facts, and Legal Standards
assume the parties' familiarity with Mr. DeCava's
medical history (summarized in a stipulation of facts filed
by the parties, ECF No. 20-1, which I adopt and incorporate
herein by reference), the ALJ opinions, the record, and the
five sequential steps used in the analysis of disability
claims. I cite only those portions of the record and the
legal standards necessary to explain this ruling.
because this case has a long procedural history, I recount
relevant portions of it here. Mr. DeCava filed an application
for Disability Insurance Benefits under Title II of the
Social Security Act in November 2010. ECF No. 20-1 at 1. The
application was denied as was reconsideration. Ibid.
ALJ Groeneveld-Meijer held a hearing on March 21, 2013 and
denied Mr. DeCava's claim shortly thereafter.
Ibid. The matter then came to this Court for the
first time. Id. at 2. The Commissioner filed a
consent motion for reversal and remand which the Court
granted in early 2015. Ibid. On remand, the ALJ was
required to “give Plaintiff the opportunity for a new
hearing and to submit additional evidence”;
“reassess Plaintiff's maximum residual functional
capacity and provide appropriate rationale with specific
references to evidence of record in support of the assessed
limitations”; “ensure that the residual
functional capacity assessment includes limitations
corresponding to Plaintiff's severe and non-severe
impairments”; “evaluate Plaintiff's
subjective complaints and provide rationale in accordance
with 20 C.F.R. § 404.1529 and SSR 96-7p”; and
“obtain vocational expert testimony to clarify the
effect of the assessed limitations on Plaintiff's
occupational base.” R. 1058.
remand, additional medical files were added to the record, R.
1155-1416, and ALJ Thomas held a second hearing on March 23,
2017, R. 975-1004. Mr. DeCava's claim was denied for a
second time on July 25, 2017. R. 950-60. Specifically, ALJ
Thomas found that Mr. DeCava had the residual functional
capacity (“RFC”) to “perform sedentary work
as defined in 20 CFR 404.1567(a) except that he could
occasionally bend, balance, twist, squat, kneel, crawl, and
climb, but no climbing of ladders, ropes, or scaffolds; avoid
hazards such as dangerous machinery, heights, or vibration,
but driving is okay; use of a cane for walking; an
environment free from excessive noise; left eye
blindness.” R. 954. After hearing testimony from a
vocational expert, he found that there were sufficient jobs
available in the national economy that Mr. DeCava could
perform, such as cashier and information clerk. R. 959-60.
This appeal followed.
Standard of Review
district court reviewing a final . . . decision pursuant to .
. . 42 U.S.C. § 405(g), is performing an appellate
function.” Zambrana v. Califano, 651 F.2d 842,
844 (2d Cir. 1981). As such, the Commissioner's decision
“may be set aside only due to legal error or if it is
not supported by substantial evidence.” Crossman v.
Astrue, 783 F.Supp.2d 300, 302-03 (D. Conn. 2010). The
Second Circuit has defined substantial evidence as
“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)
(citation and quotation marks omitted). Substantial evidence
must be “more than a mere scintilla or a touch of proof
here and there in the record.” Id.
Failure to Develop the Record
DeCava argues that the ALJ erred by failing to secure a
medical source statement regarding his functional capacity as
“none of the contemporaneous medical records from any
of Mr. DeCava's treating physicians in any meaningful way
address his actual functional limitations - what he can and
cannot do on a function-by-function basis.” ECF No.
20-2 at 6. I agree.
large body of case law hold[s] that an ALJ who makes an RFC
determination in the absence of supporting expert medical
opinion has improperly substituted his own opinion for that
of a physician, and has committed legal error.”
Staggers v. Colvin, 2015 WL 4751123, at *2 (D. Conn.
Aug. 11, 2015) (internal quotation marks and citations
omitted). Where there is such an absence of supporting
medical opinion, the ALJ has an “affirmative duty to
request RFC assessments from a plaintiff's treating
sources.” Felder v. Astrue, 2012 WL 3993594,
at *11 (E.D.N.Y. Sept. 11, 2012); see also Marshall v.
Colvin, 2013 WL 5878112, at *9 (W.D.N.Y. Oct. 30, 2013)
(finding that a record with “extensive medical
documentation” was insufficient because “it
lacked any statement from Plaintiff's treating physicians
. . . regarding her functional abilities”); Aceto
v. Commr. of Soc. Sec., 2012 WL 5876640, at *16
(N.D.N.Y. Nov. 20, 2012) (“Since the ALJ had nothing
more than treatment records and consultative reports to
review, he had an affirmative duty to develop the record and
request that Plaintiff's treating physicians assess her
remand is not required when an ALJ fails to request RFC
assessments if “the record contains sufficient evidence
from which an ALJ can assess the petitioner's residual
functional capacity.” Tankisi v. Commr. of Soc.
Sec., 521 Fed.Appx. 29, 34 (2d Cir. 2013) (unpublished).
In Tankisi, for instance, remand was not warranted
because “the ALJ had a number of functional assessments
from consultative examiners and some form of functional
assessment from a treating source” even though there
were no formal RFC assessments. Staggers, 2015 WL
4751123, at *3. So while “it is not per se
error for an ALJ to make a disability determination without
having sought the opinion of the claimant's treating
physician, a decision not to remand assumes that there are no
obvious gaps in the record precluding the ALJ from properly
assessing the claimant's residual functional
capacity.” Downes v. Colvin, 2015 WL 4481088,
at *15 (S.D.N.Y. July 22, 2015) (internal quotation marks and
citations omitted). Accordingly, “courts have upheld an
ALJ's RFC finding only where the record is clear and,
typically, where there is some useful assessment of
the claimant's limitations from a medical source.”
Staggers, 2015 WL 4751123, at *3. This is not such a
the ALJ determined that Mr. DeCava “had the residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) except that he could occasionally bend,
balance, twist, squat, kneel, crawl, and climb, but no
climbing of ladders, ropes, or scaffolds; avoid hazards such
as dangerous machinery, heights, or vibration, but driving is
okay; use of a cane for walking; an environment free from
excessive noise; left eye blindness.” R. 954. According
to the regulations, sedentary work “involves lifting no
more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally
and other sedentary criteria are met.” 20 C.F.R. ...