United States District Court, D. Connecticut
RULING AND ORDER ON MOTION TO REVERSE AND MOTION TO
AFFIRM THE DECISION OF THE ACTING COMMISSIONER
A. Bolden United States District Judge
October 7, 2016, Elizabeth Ann Shailer-Solak
(“Plaintiff”) filed this administrative appeal
under 42 U.S.C. § 405(g) against the Acting Commissioner
of Social Security (“Defendant” or “the
Acting Commissioner”), seeking this Court's review
of the decision of the Social Security Administration
(“SSA”) denying her claim for Title II disability
insurance benefits and Title XVI supplemental security income
(“SSI”) under the Social Security Act. Complaint,
dated Oct. 7, 2016 (“Compl.”), ECF No. 1.
Shailer-Solak moves to reverse the Acting Commissioner's
decision. Motion to Reverse, dated July 9, 2017
(“Pl.'s Mot.”), ECF No. 23; Memorandum of Law
in Support of Motion to Reverse, dated June 9, 2017
(“Pl.'s Mem.”), ECF No. 23-1. The Acting
Commissioner moves for an order affirming her
decision. Defendant's Memorandum of Law in
Support of Motion to Affirm, dated Sept. 11, 2017
(“Def.'s Mem.”), ECF No. 27.
reasons explained below, Ms. Shailer-Solak's motion is
GRANTED and the Acting Commissioner's
motion is DENIED. The Acting
Commissioner's decision is VACATED and
REMANDED for the calculation and payment of
FACTUAL AND PROCEDURAL BACKGROUND
Shailer-Solak, who is in her sixties, lives in Newington,
Connecticut. See Transcript of Administrative
Record, filed Jan. 27, 2017 (“Tr.”), annexed to
Answer, ECF No. 15, at 42. Since 2008, she has been diagnosed
with several mental health conditions including major
depressive disorder, post-traumatic stress disorder
(“PTSD”), and alcohol dependence. Tr.
335, 627. These conditions have led Ms. Shailer-Solak to have
repeated nightmares, panic attacks, and flashbacks. Tr. 634.
She also reports having difficulty sleeping and, as a result
of her PTSD, sleeps only a few hours per night on her
couch. Tr. 860.
several occasions, Ms. Shailer-Solak has experienced
homelessness and reportedly lived out of a van. Tr. 587,
598-99. She currently lives alone in Newington. Tr.
Shailer-Solak used to volunteer at the local town hall
several times per week, and she reported that she would spend
time by her condominium's pool. Tr. 858. By May 2017,
however, she reported that she no longer engages in many of
these activities. Tr. 857-58. She also does not maintain many
social contacts and does not keep in touch with her family.
2011, when she left her job at a gas station convenience
store, Ms. Shailer-Solak has been out of the
workforce. Tr. 855. She now seeks review of the
Acting Commissioner's denial of benefits under Title II
and Title XVI.
Treatment at InterCommunity Mental Health Group
February 2008, Ms. Shailer-Solak has been a patient at the
InterCommunity Mental Health Group (“InterComm”)
in East Hartford, Connecticut. Tr. 335. She has primarily
been treated by Brian Cardona, a licensed clinical social
worker employed by InterComm. Tr. 854. She has also been seen
by other medical practitioners at InterComm who have, among
other things, managed her prescriptions and co-signed Mr.
Cardona's reports and treatment notes, including Dr. Ann
Price, Dr. Anees Ahmed, and Advance Practice Registered Nurse
Carole Montano. Tr. 584, 725, 1150.
providers have noted that Ms. Shailer-Solak “lack[ed]
relapse prevention skills” and had “poor
interpersonal communication skills, poor problem-solving and
decision-making skills[.]” Tr. 1096. Additionally, she
has had “intrusive memories” several times per
week, daily hypervigilance, flashbacks twice a week, and
nightmares every night about “bad dreams of bad things
from the past.” Id.
Cardona completed two Mental Impairment Questionnaires during
Ms. Shailer-Solak's treatment with Intercomm: (1) on
December 18, 2013, co-signed by Dr. Ahmed. Tr. 709; and (2)
on December 15, 2015, co-signed by Nurse Montano, Ms.
Shailer-Solak's medication provider. Tr. 1150. Both
questionnaires indicate that Ms. Shailer-Solak experienced a
flight of ideas, hyperactivity, sleep disturbance, easy
distractibility, emotional withdrawal and isolation, and
“recurrent obsessions or compulsions which are a source
of marked distress.” Tr. 710, 1146. They also state
that Ms. Shailer-Solak: (1) is “unable to meet
competitive standards” in responding to changes in
routine work settings, working in coordination with or
proximity to others, and performing at a consistent pace, Tr.
711, 1147; and (2) has “marked” difficulties in
maintaining social functioning, extreme restrictions in daily
life and in maintaining concentration, persistence, or pace,
and has experienced four or more “episodes of
decompensation within [a] 12 month period.” Tr. 713,
Non-Treating Medical Sources
Shailer-Solak has also been evaluated by several sets of
non-treating examiners throughout the course of her claim.
Ms. Shailer-Solak was referred for these assessments by the
State of Connecticut Bureau of Rehabilitation
Services/Disability Determination Services.
Diane Reese, LCSW, and Margarita Hernández,
February, 2012, Ms. Shailer-Solak underwent a mental status
assessment with licensed clinical social worker Diane Reese
and licensed clinical psychologist Margarita Hernandez. Tr.
622. This evaluation included a review of her medical records
as well as a clinical interview. Ms. Reese and Ms.
Hernández made behavioral observations and clinical
impressions in their report after Ms. Shailer-Solak's
examination. Tr. 626.
February 7, 2012, Diane Reese examined Ms. Shailer-Solak. Tr.
622. Her report recounted Ms. Shailer-Solak's health
history, and noted that “Ms. Shailer [sic] was alert,
cooperative, and made regular eye contact . . . She was
friendly and euthymic . . . . She was oriented to person,
place, and time. Thought process was goal directed, logical,
and there was no evidence of loose association or tangential
thinking.” Tr. 626. Additionally, she reported
that “[n]o prominent problems were observed with regard
to immediate, recent, or remote memory, ” and that Ms.
Shailer-Solak “demonstrated adequate attention and
concentration skills.” Id. Ms. Reese
concluded, however, that her “diagnostic
impression” of Ms. Shailer-Solak suggested depressive
and anxiety disorders, as well as PTSD and alcohol abuse. Tr.
Reese concluded that Ms. Shailer-Solak frequently attempts to
cope with her symptoms by resorting to alcohol and drug use,
but also that she “appears to minimize her feelings of
depression and anxiety.” Tr. 627. Her PTSD led to her
“having startled responses to common things such as a
phone ringing or someone raising his hand, ” but
“it appears as if she minimizes her symptoms so that
she can feel some sense of being in control.”
Id. Ms. Shailer-Solak's anxiety also
“parallels her feelings of depression and anxiety in
that she feels anxious when she feels she can't cope,
” and Ms. Reese noted that “[w]hen these feelings
become so intense she often seeks help by going to the
emergency room for a crisis evaluation and possible admission
to a psychiatric unit.” Id.
Hernández reviewed and co-signed Ms. Reese's
findings. Tr. 627.
Steven Kahn, M.D.
2012, Dr. Steven Kahn, M.D. conducted a disability evaluation
of Ms. Shailer-Solak. Tr. 632. His report noted that
“[i]n terms of her formal mental status exam” she
was “cooperative, makes good contact, ” and was
“able to follow the instruction” of several tests
“with moderate complexity properly and she was able to
remember three out of three words after several minutes,
suggesting short-term memory was intact.” Tr. 633-34.
Kahn, however, concluded that his “diagnostic
impression would be that [Ms. Shailer-Solak] does suffer from
major depression recurrent, which at this point is slightly
improved [sic] on the Lexapro, but she is still quite
symptomatic . . . .” Tr. 634. He also concluded that
she had “panic disorder with a degree of agoraphobia
and she still gets several panic attacks a week and also PTSD
which manifests itself at least partially in terms of
occasional flashbacks and bad dreams.” Id.
State Agency Evaluations
agency psychiatrist Dr. Janine Swanson, PsyD and Warren Leib,
Ph.D. also examined Ms. Shailer-Solak. Tr. 85, 110.
February 22, 2012, Dr. Swanson concluded that while Ms.
Shailer-Solak's anxiety and affective disorders were
“Severe, ” she only experienced mild restrictions
in her daily living, moderate difficulties maintaining social
function, mild difficulties in maintaining concentration,
persistence or pace, and no repeated episodes of
decompensation. Tr. 84. Dr. Swanson concluded that Ms.
Shailer-Solak “can adjust to other work.” Tr. 88.
25, 2012, Dr. Leib examined Ms. Shailer-Solak and reached the
same conclusions as Dr. Swanson. Tr. 110-11.
November 28, 2011, Ms. Shailer-Solak applied for Title II
disability insurance benefits and for Title XVI supplemental
security income, alleging being disabled since January 31,
2010. Tr. 46-49, 50-58. Her applications were first denied on
February 24, 2012, and then denied again upon reconsideration
on July 30, 2012. Tr. 136-39; 140-43; 146-48;
August 22, 2012, Ms. Shailer-Solak filed a written request
for a hearing before an Administrative Law Judge. Tr. 153. On
September 5, 2012, the SSA granted her request. Tr. 154.
Initial Administrative Hearing
January 14, 2014, the SSA held a hearing on Ms.
Shailer-Solak's applications in Hartford, Connecticut.
Tr. 12. Ms. Shailer-Solak appeared, represented by counsel,
before Administrative Law Judge (“ALJ”) Ryan A.
Alger. Id. Ralph E. Richardson, an impartial
vocational expert, also appeared. Id. The hearing
lasted a total of 32 minutes. Tr. 61, 75.
response to questions from the ALJ, Ms. Shailer-Solak
testified that she was fifty-five years of age, graduated
from high school, and completed one year of college
education. Tr. 63. The last job she held was as a cashier and
stock person at Food Bag Citgo Station. Id. She
testified that she worked there from May 2010 until April
2011, but quit because her boss was “very mean.”
Tr. 63-64. Before Citgo, she worked as a cashier in a
corporate cafeteria restaurant. Tr. 64.
explained that she could not go back to work because she has
“too many appointments” to keep “and too
many groups” she was attending “to help myself
get better.” Id. She explained that she had
just started several therapy groups including a trauma group,
a women's group, and Alcoholics Anonymous
(“AA”) meetings. Id.
Shailer-Solak testified that she was no longer engaged in her
volunteer work with Human Services at Newington Town Hall,
where she used to help with the food pantry and clothing
closet. Id. She estimated that the last time she had
regularly volunteered was in Spring 2013, and that she had
done a “very little bit” of volunteering in the
fall. Tr. 64-65.
Shailer-Solak testified that she was living alone and
supported herself with a HUD grant, food stamps from the
state of Connecticut, and cash assistance. Tr. 65. She said
she does not visit with friends or family on a regular basis
and drives herself to all of her appointments- except that
she had relied on a friend the day of the hearing because she
didn't have enough money for gas or parking. Tr. 65-66.
Shailer-Solak's attorney then asked her to describe her
level of alcohol use. Tr. 66. She testified that she drank
five “nips”-i.e., small airline-size bottles-of
tequila the day before, and that she periodically drank two
nips a day. Id. She used alcohol because it
“numbs the pain and the anxiety temporarily, ”
but “[i]t always comes back after.” Id.
Shailer-Solak explained that she sees Bryan Cardona for
one-on-one therapy weekly, that she attends two groups per
week, and that she sees Dr. Ahmed for medication review. Tr.
66-67. All of this treatment is necessary, she said, because
she has experienced significant trauma in her life
“that seems to be getting in the way of [her]
functioning, ” causing her to “freeze” and
preventing her from performing basic daily functions. Tr. 67.
She further reported suffering from regular panic attacks and
flashbacks, Tr. 68, and stated that she is unable to get out
of bed two to three times a week. She also reported going
days without eating, testifying that she had not eaten since
last week and that she has gone without food for as long as
two weeks. Id. Her sleep schedule, she said, was
extremely inconsistent, plagued with bad dreams and/or panic
attacks. Tr. 68-69. She also reported regularly going days
without bathing. Tr. 69.
Ms. Shailer-Solak testified that she could not even maintain
enough mental focus to watch television; when she tried to,
she said, she drifts, focusing instead on whatever pops into
her head, including flashbacks. Id. She also
described suffering from obsessive behavior, mainly involving
counting, for several years. Tr. 69-70.
then heard testimony from Mr. Richardson, who reviewed the
claim file and exhibits to familiarize himself with Ms.
Shailer-Solak's vocational background. Mr. Richardson
explained that Ms. Shailer-Solak had experience in five
occupational titles bearing a range of exertional demands and
skill levels: (1) bookkeeper, 210.382-014, sedentary, SVP-6,
skilled; (2) cashier, stocker, 290.477-714, light, SVP-3,
semi-skilled; (3) CNA, 355.674-014, medium, SVP-4,
semi-skilled; self-service gas station attendant,
211.462-010, light, SVP-2, unskilled, and (5)
hostess/restaurant, 352.677-010, light, SVP-3, semi-skilled.
and the witness then engaged in the following colloquy:
Q: Please assume the individual the same age, education and
work experience as the claimant limited to medium work. Carry
out and remember simple instructions. Handle an environment
with few changes in the workplace with occasional interaction
with coworkers. No. interaction with general public. Can this
hypothetical individual do the past work of the claimant?
A: No, Your Honor.
Q: Are there other jobs in the local or national economy that
person could do?
A: Night cleaner, 381.687-018, SVP-2, unskilled, medium,
state 1, 700, nationally 305, 000. Hand packer, 559.687-074,
SVP-2, unskilled, light, state 1, 400, nationally 234, 000.
Inserter, 731.685014, unskilled, SVP-2, sedentary, state 1,
Q: If I add to that hypothetical, you gave me a range of
light and sedentary. I'm not going to change the
exertional level. If I add that the individual could not
maintain their concentration and would be off-task 20 percent
of the workday needing a break every hour of about 10-12
minutes, would those positions allow for that?
A: No, Your Honor.
Q: Would there be any others?
A: There would be no work.
Tr. 71-72. Mr. Richardson further clarified that in the first
hypothetical, if the person was absent from work three or
more days per month, the jobs he had identified would not be
available to them. Tr. 73.
the ALJ asked Ms. Shailer-Solak her weight, and why she drank
more than a couple of nips the day before. Id. She
testified that she weighed 124 pounds, and that she had been
anxious about the hearing and unable to find her driver's
First ALJ Decision
February 24, 2014, the ALJ issued a written decision denying
Ms. Shailer-Solak's claim for disability and disability
insurance benefits and supplemental security income. Tr.
9-11. The ALJ found that Ms. Shailer-Solak was not disabled
under sections 216(i) and 223(d) of the Social Security Act
(for purposes of Title II benefits), nor was she disabled
under section 1614(a)(3)(A) of the Act (for purposes of Title
XVI benefits). Tr. 25.
concluded that while the medical evidence supported a finding
of an affective disorder and an anxiety disorder, these
impairments would not meet listing-level severity. Tr. 14-15.
This determination was largely based on the ALJ's
conclusion that Ms. Shailer-Solak experienced only minor
restrictions in her daily living, moderate difficulties in
her social functioning, and moderate difficulties with
concentration, persistence and pace. Tr. 16.
respect to residual functional capacity, the ALJ found that
Ms. Shailer-Solak could perform “medium work, ”
“except she can understand, remember and carry out
simple instructions for simple, routine tasks in an
environment with few workplace changes.” Id.
The ALJ also found that Ms. Shailer-Solak “can tolerate
occasional interaction with coworkers” but “none
with the public.” Id.
the ALJ found that Ms. Shailer-Solak could not return to her
previous occupation, he nevertheless concluded that there
were jobs Ms. Shailer-Solak could perform and that existed in
significant numbers in the national economy. Tr. 24. Further,
he found that while Ms. Shailer-Solak had limitations that
prevented her from performing all or substantially all of the
requirements of “medium work, ” she nevertheless
was able to perform the requirements of certain jobs, such as
night cleaner, hand packer, and inserter. Id.
therefore concluded Ms. Shailer-Solak was “not
disabled” and “is capable of making a successful
adjustment to other work that exists in significant numbers
in the national economy.” Id.
Appeal of ALJ Decision
30, 2014, Ms. Shailer-Solak requested a review of the
ALJ's ruling by the SSA's Appeals Council. Tr. 7. On
August 27, 2014, the Appeals Council declined her request.
September 15, 2014, Ms. Shailer-Solak filed an appeal with
the United States District Court for the District of
Connecticut. See Complaint, dated Sept. 15, 2014,
No. 3:14-cv-1328 (JGM), ECF No. 1. The appeal was assigned to
United States Magistrate Judge Joan G. Margolis.
January 30, 2015, Ms. Shailer-Solak moved to reverse the
decision of the Acting Commissioner. See Motion to
Reverse, dated Jan. 30, 2015, No. 3:14-cv-1328 (JGM), ECF No.
14. She argued that the ALJ committed two errors: (1) at Step
Three of the disability determination, the ALJ failed to
accord the primary treating physician's and
counselor's opinions requisite weight and deference,
failed to provide good and sufficient reasons for discounting
those opinions, and substituted his own opinion for that of
the medical expert; and (2) at Step Five, the ALJ failed to
include all impairments and limitations in his determination
of residual functional capacity, resulting in a determination
not supported by the record and insufficient to satisfy the
Acting Commissioner's burden at this step. See
Memorandum in Support of Motion to Reverse, dated Jan. 30,
2015, No. 3:14-cv-1328 (JGM), ECF No. 14-1, at 17-31, 31-34.
April 9, 2015, the Acting Commissioner moved, with Ms.
Shailer-Solak's consent, to reverse the decision of the
ALJ under Sentence Four of 42 U.S.C. 45(g) and remand for
Upon remand, the Social Security Administration Appeals
Council will remand this case to an ALJ. Plaintiff will be
given an opportunity for a new hearing and to submit
additional evidence in accordance with 20 C.F.R. §§
405.331 and 405.350. The ALJ will reassess plaintiff's
maximum residual functional capacity, and in so doing,
reevaluate the medical and other opinions of record. The ALJ
will also reassess whether plaintiff can perform past
relevant work and/or make an adjustment to other work that
exists in significant numbers, obtaining vocational expert
testimony, if warranted. The ALJ will then issue a new
Motion to Remand, dated Apr. 9, 2015, No. 3:14-cv-1328 (JGM),
ECF No. 17, at 1-2.
same day, the court granted the Acting Commissioner's
motion, as well as Ms. Shailer-Solak's motion (to the
extent that a remand was agreed to). Electronic Orders, dated
Apr. 9, 2015, No. 3:14-cv-1328 (JGM), ECF Nos. 18-19. On
April 15, 2015, the Acting Commissioner filed an amended
motion, which the Court granted. Amended Consent Motion to
Remand, dated Apr. 15, 2015, No. 3:14-cv-1328 (JGM), ECF No.
20; Electronic Order, dated Apr. 15, 2015, No. 3:14-cv-1328
(JGM), ECF No. 21. On April 16, 2015, the Clerk of the Court
entered a judgment reversing the Acting Commissioner's
decision and remanded the case to the agency for further
proceedings. Judgment, dated Apr. 16, 2015, No. 3:14-cv-1328
(JGM), ECF No. 22; see also Tr. 896.
Proceedings on Remand
September 1, 2015, the Appeals Council vacated the final
decision of the Acting Commissioner and sent the case back to
the ALJ for further proceedings consistent with the order of
the court, stating that “[f]urther evaluation of the
opinion evidence is warranted.” Tr. 902.
Council explained that Brian Cardona, Ms. Shailer-Solak's
treating therapist, had indicated more restrictive mental
limitations than identified by the ALJ, but that “the
decision does not provide adequate rationale when according
little weight to this opinion.” Tr. 902. The
Appeals Council specifically noted: (1) that the decision
does not evaluate the numerous low GAF scores in the record
that support Cardona's opinion; (2) that the decision
“inaccurately relies on volunteer and part-time work
that appears to show the claimant cannot function in a
regular work environment”; and (3) that the decision
does not discuss evidence that indicates the claimant has
either few or no friends, and no social peer support.
Id. Finally, the Council found that further
evaluation of the non-treating source opinions of Dr.
Margarita Hernandez and Dr. Steven Kahn was warranted
“because they include statements that tend to show
greater limitations” than were described in the
Appeals Council therefore ordered the ALJ to take three
• Obtain updated evidence concerning the claimant's
impairments in order to complete the administrative record in
accordance with the regulatory standards regarding existing
medical evidence (20 CFR 404.1512-1513 and 416.912-913).
Additional evidence may include, if warranted and available,
a consultative examination and medical source statements
about what the claimant can still do despite her impairments.
• Give further consideration to the claimant's
maximum residual functional capacity during the entire period
at issue and provide rationale with specific references to
evidence of record in support of assessed limitations (Social
Security Ruling 96-8p). In so doing, evaluate the opinion
evidence in the record, with specific consideration of the
opinion evidence in [the consultative examination report of
Diane Reese, LCSW, Steven Kahn, MD, and impairment
questionnaire filled out by Brian Cardona, LCSW] and explain
the weight given to such opinion evidence.
• If warranted by the expanded record, obtain evidence
from a vocational expert to clarify the effect of the
assessed limitations on the claimant's occupational base
. . . . The hypothetical questions should reflect the