United States District Court, D. Connecticut
RULING ON CROSS MOTIONS
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE
Teresa Recupero (“plaintiff”), brings this appeal
under §205(g) of the Social Security Act (the
“Act”), as amended, 42 U.S.C. §405(g),
seeking review of a final decision by the Commissioner of the
Social Security Administration (the
“Commissioner” or “defendant”)
denying her application for Disability Insurance Benefits
(“DIB”). Plaintiff has moved for an order
reversing the Commissioner's decision. [Doc. #19].
Defendant has filed a cross-motion seeking an order affirming
the decision of the Commissioner. [Doc. #21].
reasons set forth below, plaintiff's Motion to Reverse
the Decision of the Commissioner [Doc. #19]
is GRANTED, to the extent she seeks a remand
for further administrative proceedings, and defendant's
Motion for an Order Affirming the Decision of the
Commissioner [Doc. #21] is
filed an application for DIB on February 19, 2016, alleging
disability beginning November 1, 2015. See Certified
Transcript of the Administrative Record, Doc. #14, compiled
on October 2, 2018, (hereinafter “Tr.”) at
200-03. Plaintiff's application was denied initially on
June 9, 2016, see Tr. 109-12, and upon reconsideration on
September 22, 2016. See Tr. 114-21.
December 12, 2017, plaintiff, represented by Attorney Rebecca
Bodner, appeared and testified at a hearing before
Administrative Law Judge (“ALJ”) John Aletta. See
generally Tr. 28-74. Vocational Expert (“VE”)
Dennis King appeared and testified by telephone at the
administrative hearing. See Tr. 62-69; see also Tr. 310-17.
Licensed Clinical Social Worker Kathleen Douglas also
appeared and testified at this hearing. See Tr. 70-73. On
February 23, 2018, the ALJ issued an unfavorable decision.
See Tr. 7-27. On June 18, 2018, the Appeals Council denied
plaintiff's request for review, thereby making the
ALJ's February 23, 2018, decision the final decision of
the Commissioner. See Tr. 1-4. The case is now ripe for
review under 42 U.S.C. §405(g).
timely filed this action for review and now moves to reverse
the Commissioner's decision. [Doc. #19]. On appeal,
1. The ALJ failed to follow the treating physician rule;
2. The Residual Functional Capacity determination
(“RFC”) is not supported by substantial evidence;
3. The ALJ failed to properly develop the administrative
4. The ALJ's finding that plaintiff could perform past
relevant work as an office clerk is not supported by
generally Doc. #19-2. For the reasons stated below, the Court
finds that the ALJ failed to properly consider the testimony
of Licensed Clinical Social Worker Kathleen Douglas and
failed to follow the treating physician rule.
STANDARD OF REVIEW
review of a Social Security disability determination involves
two levels of inquiry. First, the Court must decide whether
the Commissioner applied the correct legal principles in
making the determination. Second, the Court must decide
whether the determination is supported by substantial
evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998) (citation omitted). Substantial evidence is
evidence that a reasonable mind would accept as adequate to
support a conclusion; it is more than a “mere
scintilla.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). The reviewing
court's responsibility is to ensure that a claim has been
fairly evaluated by the ALJ. See Grey v. Heckler,
721 F.2d 41, 46 (2d Cir. 1983) (citation omitted).
Court does not reach the second stage of review - evaluating
whether substantial evidence supports the ALJ's
conclusion - if the Court determines that the ALJ failed to
apply the law correctly. See Norman v. Astrue, 912
F.Supp.2d 33, 70 (S.D.N.Y. 2012) (“The Court first
reviews the Commissioner's decision for compliance with
the correct legal standards; only then does it determine
whether the Commissioner's conclusions were supported by
substantial evidence.” (citing Tejada v.
Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999))).
“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the
substantial evidence standard to uphold a finding of no
disability creates an unacceptable risk that a claimant will
be deprived of the right to have her disability determination
made according to the correct legal principles.”
Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
crucial factors in any determination must be set forth with
sufficient specificity to enable [a reviewing court] to
decide whether the determination is supported by substantial
evidence.” Ferraris v. Heckler, 728 F.2d 582,
587 (2d Cir. 1984) (alterations added) (citing Treadwell
v. Schweiker, 698 F.2d 137, 142 (2d Cir. 1983)). The ALJ
is free to accept or reject the testimony of any witness, but
a “finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to
permit intelligible plenary review of the record.”
Williams ex rel. Williams v. Bowen, 859 F.2d 255,
260-61 (2d Cir. 1988) (citing Carroll v. Sec. Health and
Human Servs., 705 F.2d 638, 643 (2d Cir. 1983)).
“Moreover, when a finding is potentially dispositive on
the issue of disability, there must be enough discussion to
enable a reviewing court to determine whether substantial
evidence exists to support that finding.” Johnston
v. Colvin, No. 3:13CV00073(JCH), 2014 WL 1304715, at *6
(D. Conn. Mar. 31, 2014) (citing Peoples v. Shalala,
No. 92CV4113, 1994 WL 621922, at *4 (N.D.Ill. Nov. 4,
important to note that in reviewing the ALJ's decision,
this Court's role is not to start from scratch. “In
reviewing a final decision of the SSA, this Court is limited
to determining whether the SSA's conclusions were
supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v.
Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quoting
Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d
some of the Regulations cited in this decision, particularly
those applicable to the review of medical source evidence,
were amended effective March 27, 2017. Those “new
regulations apply only to claims filed on or after March 27,
2017.” Smith v. Comm'r, 731 Fed.Appx. 28,
30 n.1 (2d Cir. 2018) (summary order). Where a
plaintiff's claim for benefits was filed prior to March
27, 2017, “the Court reviews the ALJ's decision
under the earlier regulations[.]” Rodriguez v.
Colvin, No. 3:15CV1723(DFM), 2018 WL 4204436, at *4 n.6
(D. Conn. Sept. 4, 2018); White v. Comm'r, No.
17CV4524(JS), 2018 WL 4783974, at *4 (E.D.N.Y. Sept. 30,
2018) (“While the Act was amended effective March 27,
2017, the Court reviews the ALJ's decision under the
earlier regulations because the Plaintiff's application
was filed before the new regulations went into effect.”
SSA LEGAL STANDARD
the Social Security Act, every individual who is under a
disability is entitled to disability insurance benefits. 42
considered disabled under the Act and therefore entitled to
benefits, plaintiff must demonstrate that she is unable to
work after a date specified “by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §423(d)(1)(A). Such impairment
or impairments must be “of such severity that he is not
only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. §423(d)(2)(A); 20 C.F.R.
§404.1520(c) (requiring that the impairment
“significantly limit ... physical or mental ability
to do basic work activities” to be considered
“severe” (alterations added)).
is a familiar five-step analysis used to determine if a
person is disabled. See 20 C.F.R. §404.1520. In the
Second Circuit, the test is described as follows:
First, the Secretary considers whether the claimant is
currently engaged in substantial gainful activity. If he is
not, the Secretary next considers whether the claimant has a
“severe impairment” which significantly limits
his physical or mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant
has an impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
Secretary will consider him disabled without considering
vocational factors such as age, education, and work
experience; the Secretary presumes that a claimant who is
afflicted with a “listed” impairment is unable to
perform substantial gainful activity.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam). If and only if the claimant does not have a
listed impairment, the Commissioner engages in the fourth and
Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe
impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to
perform his past work, the Secretary then determines whether
there is other work which the claimant could perform. Under
the cases previously discussed, the claimant bears the burden
of proof as to the first four steps, while the Secretary must
prove the final one.
the fourth step, the claimant carries the burdens of
production and persuasion, but if the analysis proceeds to
the fifth step, there is a limited shift in the burden of
proof and the Commissioner is obligated to demonstrate that
jobs exist in the national or local economies that the
claimant can perform given [her] residual functional
capacity.” Gonzalez ex rel. Guzman v. Dep't of
Health and Human Serv.,360 Fed.Appx. 240, 243 (2d Cir.
2010) (alteration added) (citing 68 Fed. Reg. 51155 (Aug. 26,
2003)); Poupore v. Astrue,566 F.3d 303, 306 (2d
Cir. 2009) (per curiam)). ...