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 Commission's denial of
benefits, plaintiff Whitney Kurlan argues that the
Administrative Law Judge (ALJ) erred because (1) his
evaluation of her residual functional capacity (RFC) was not
supported by substantial evidence; (2) he failed to properly
weigh the opinion of her treating spine surgeon; (3) he
failed to develop the record by ordering a consultative
medical examination; and (4) he failed to give appropriate
weight to her testimony about her pain symptoms. Ms. Kurlan
also argues that the Appeals Council erred in declining to
consider new post-hearing evidence. I agree with Ms.
Kurlan's first argument and grant her motion to remand
the case to the Commissioner.
assume familiarity with Ms. Kurlan's medical history
(summarized in a stipulation of facts filed by the parties,
ECF No. 16, which I adopt and incorporate herein by
reference), the ALJ's opinion, 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.
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). “The findings of the Commissioner
of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g). Accordingly, a district court may not make a
de novo determination of whether a plaintiff is disabled in
reviewing a denial of disability benefits. 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 correct legal principles were applied
in reaching the decision, and whether the decision is
supported by substantial evidence. Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987). 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). 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.
ALJ's RFC Formulation Was Not Supported by Substantial
Kurland argues that the ALJ's RFC formulation was not
supported by substantial evidence. Specifically, she asserts
that, because the ALJ declined to give weight to any medical
sources in the record, he “substituted his own opinion
for that of competent medical authority.” (ECF No. 17-1
at 12.) I agree.
ALJ Rejected All of the Medical Opinions in the Record
well established 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). “The social security ALJ, unlike a judge in a
trial, must on behalf of all claimants affirmatively develop
the record in light of the essentially non-adversarial nature
of a benefits proceeding.” Morris v.
Berryhill, 721 Fed.Appx. 25, 27 (2d Cir. 2018) (internal
quotation marks and alterations omitted). Thus, where the
record does not contain relevant medical opinion evidence, an
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,
ALJ's failure to request RFC assessments may be harmless,
and thus no remand warranted, in cases where “the
record contains sufficient evidence from which an ALJ can
assess the petitioner's residual functional
capacity.” Tankisi v. Commr. Soc. Sec., 521
Fed. App'x 29, 34 (2d Cir. 2013). For example, the Second
Circuit held that remand was not necessary when “the
ALJ had a No. of functional assessments from a treating
source, ” although the record contained no formal RFC
assessments. Id. Similarly, remand may be
unnecessary where the ALJ rejects the medical opinion
evidence in the record but the RFC formulation is supported
by substantial evidence in “contemporaneous treatment
notes.” See Monroe v. Comm'r of Soc. Sec.,
676 Fed. App'x 5, 8-9 (2d Cir. 2017). In short,
“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 v. Colvin, No.
3:14-CV-717 JCH, 2015 WL 4751123, at *3 (D. Conn. Aug. 11,
the ALJ determined that Ms. Kurlan had “residual
functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a), except she is limited to only occasional
climbing, balancing, stooping, kneeling, couching, and
crawling; to never climbing ladders, ropes, and scaffolds; to
needing to be able to avoid concentrated exposure to
vibrations or hazards; and she needs to be able to change
position as needed in the work area during the workday from
sitting to standing or standing to
sitting.” R. 43.
formulating this RFC, the ALJ gave little or no weight to the
medical opinions in the record. First, he assigned
“little weight” to Ms. Kurlan's post-surgery
discharge instructions, which indicated that she could sit
for only 20 to 30 minutes, could not drive, could not bend or
twist at the waist, and could not lift more than 10 to 15
pounds. R. 46 (summarizing R. 507). He explained that the
instructions appeared “to be the result of the
claimant's surgery and not an indication of
claimant's ongoing functional abilities.”
the ALJ gave “little weight” to the opinion of
Ms. Kurlan's treating surgeon, Dr. Mitchell Garden. R.
47. In a letter dated April 18, 2016, Dr. Garden reviewed Ms.
Kurlan's treatment history and symptoms, including the
two spine surgeries that he performed. R. 608-11. He opined
that her “permanent partial impairment” rating
was “23% whole body impairment and a 31% impairment
related to the lumbar spine itself.” R. 611. He noted
that she would not be able to return “to her previous
occupation in sales which required significant driving . . .
.” Id. He further opined that she was limited
to “less than sedentary work which would require
frequent breaks as well as the ability to change positions as
needed and more than likely require her to be out of work
frequently.” Id. The ALJ explained that Dr.
Garden's opinion was “inconsistent with the record
as a ...