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Morales v. Berryhill

United States District Court, D. Connecticut

February 21, 2019

NANCY A. BERRYHILL, Acting COMMISSIONER OF Social Security, Defendant.



         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 contends that the Administrative Law Judge (“ALJ”) erred in the following ways:

First, the Defendant improperly rejected the opinion of the treating physician Dr. Timell, because it was not based on objective medical evidence of impairment. Secondly, the Defendant weighed the evidence and found in favor of state agency consultants, but failed to follow the regulations in weighing the evidence. Third, the Defendant furthermore found that the Plaintiff's “impairments could reasonably be expected to cause symptoms, but “..[.], the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” R. at 27. . . . The last error assigned is that the Defendant arrived at an RFC that did not honor the evidence of impairment because of the errors throughout this decision.

Pl.'s Mot. to Reverse (“ECF No. 17-2”) at 5-6.

         The defendant argues that the ALJ applied the correct legal standards and that substantial evidence supported the ALJ's Decision. See Def.'s Mot. to Affirm (ECF No. 18, 18-1) at 1 and 13, respectively.

         The court concludes that, at minimum, the ALJ failed to properly apply the treating physician rule to Dr. Timell's opinions. This, standing alone, warrants remand.

         The ALJ must evaluate “[e]very medical opinion”. 20 C.F.R. §§ 404.1527(c), 416.927(c). “Medical opinions” are statements from acceptable medical sources that reflect judgments about the nature and severity of a claimant's impairments, including symptoms, diagnosis, prognosis, and restrictions. 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1). Medical opinions from acceptable medical sources are entitled to “controlling weight” if “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and “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))(internal quotation marks omitted). See also 20 C.F.R. § 416.927(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), 416.927(f)(2); SSR 96-2p (applicable but rescinded effective 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) and § 416.927(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 ...

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