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Kurlan v. Berryhill

United States District Court, D. Connecticut

February 28, 2019

WHITNEY KURLAN, 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 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.

         I 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.

         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). “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.

         DISCUSSION

         I. The ALJ's RFC Formulation Was Not Supported by Substantial Evidence

         Ms. 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.

         a. The ALJ Rejected All of the Medical Opinions in the Record

         It is 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, 2012).

         An 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, 2015).

         Here, 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.”[1] R. 43.

         In 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.” Id.

         Second, 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 ...


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