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Decava v. Berryhill

United States District Court, D. Connecticut

January 14, 2019

ERIC DECAVA, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

          RULING ON THE PLAINTIFF'S MOTION TO REVERSE AND THE DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER

          MICHAEL P. SHEA, U.S.D.J.

         In this 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.

         I. Procedural History, Facts, and Legal Standards

         I 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.

         However, 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.

         On 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.

         II. Standard of Review

         “A 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.

         III. Discussion

         A. Failure to Develop the Record

         Mr. 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.

         “[A] 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 RFC.”).

         However, 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 case.

         Here, 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. ...


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