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 Lisa Ann Aurilio argues that the
Administrative Law Judge (ALJ) (1) violated the treating
source rule; (2) failed to adequately develop the record; (3)
made unsupported Step Five findings; (4) improperly failed to
analyze her Lyme Disease; and (5) failed to properly analyze
her testimony regarding her pain. I agree with Ms.
Aurilio's first and second argument and grant her motion
to remand the case to the Commissioner.
assume familiarity with Ms. Aurilio's medical history
(summarized in a stipulation of facts filed by the parties
(ECF No. 18-1), 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
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.
Treating Physician Rule
Aurilio argues that the ALJ failed to comply with the
treating physician rule when he ascribed “little
weight” to the opinions of Dr. DeFusco and Dr. Dempsey.
(ECF No. 18-2 at 2.) I agree.
the treating physician rule, “the opinion of a
claimant's treating physician as to the nature and
severity of the impairment is given controlling weight so
long as it is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the] case
record.” Burgess v. Astrue, 537 F.3d 117, 128
(2d Cir. 2008) (internal citation and quotation marks
omitted). “The regulations further provide that even if
controlling weight is not given to the opinions of the
treating physician, the ALJ may still assign some weight to
those views, and must specifically explain the weight that is
actually given to the opinion.” Schrack v.
Astrue, 608 F.Supp.2d 297, 301 (D. Conn. 2009). The
Second Circuit has made clear that:
To override the opinion of the treating physician ... the ALJ
must explicitly consider, inter alia: (1) the frequency,
length, nature, and extent of treatment; (2) the amount of
medical evidence supporting the opinion; (3) the consistency
of the opinion with the remaining medical evidence; and, (4)
whether the physician is a specialist. After considering the
above factors, the ALJ must comprehensively set forth his
reasons for the weight assigned to a treating physician's
Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015)
(internal citations, quotation marks, and alterations
omitted). “The failure to provide good reasons for not
crediting the opinion of a claimant's treating physician
is a ground for remand.” Id.
DeFusco's 2016 Opinion
assigned “little weight” (R. 17) to the 2016
opinion of Dr. DeFusco (R. 1002-03). The ALJ gave several
reasons, none of which constitute “good reasons”
for assigning “little weight” to the opinion in
its entirety. See Randall v. Berryhill, 2018 WL
4204438, at *7 (D. Conn. Sept. 4, 2018) (finding that the
“cursory reasoning” provided by the ALJ contained
“apparent deficiencies” and did not constitute
“good reasons, ” necessitating remand). First,
the ALJ noted that the letter did not set forth any
functional limitations. (R. 17.) While it is true that Dr.
DeFusco did not provide a detailed assessment of Ms.
Aurilio's functional capacity, she did opine that Ms.
Aurilio's functional status “deteriorated to the
point where she felt her health was in total disorder, mental
and physical.” (R. 1002.) But in any case, the absence
of a detailed functional assessment is not a “good
reason” to dismiss the portions of Dr. DeFusco's
letter that do not address specific functional limitations,
such as her opinion that undiagnosed Lyme Disease had been
causing Ms. Aurilio's serious health problems during the
relevant time period (R. 1002), an opinion the ALJ's
findings contradict (R. 16). See Stango v. Colvin,
2016 WL 3369612, at *11 (D. Conn. June 17, 2016)
(“[T]he Court is aware of no authority that determines
that a treating physician's opinion should be cast aside
where it does not include a function-by-function assessment
of the claimant's capabilities.” (internal
quotation marks omitted)).
the ALJ observes, without citation, that “follow up
notes show no recurrence of abnormal cardiac rhythm after
January 2013.” (R. 17.) For one, Ms. Aurilio has
pointed to evidence in the record that she did continue to
experience cardiac symptoms after January 2013. (ECF No. 18-2
at 4; R. 479.) But in any case, Dr. DeFusco's letter
makes only a brief reference to Ms. Aurilio's abnormal
cardiac rhythm, and is more focused on a constellation of
symptoms that Dr. DeFusco attributes-retrospectively-to Lyme
Disease. Because the ALJ's observation cites no
supporting evidence and is contradicted by the record, and
because it misses the thrust of Dr. DeFusco's opinion,
this does not constitute a “good reason” for
rejecting that opinion.
the ALJ argues that Dr. DeFusco's statement that Ms.
Aurilio “cooperated as best as she could with exercise
programs, to no avail” (R. 1002) contradicts her
treatment notes indicating Ms. Aurilio engaged in
“sustained exercise and gym activity” (R. 17).
This does not constitute a good reason for rejecting Dr.
DeFusco's opinion either. The ALJ does not cite the
treatment notes, but he appears to be referring to repeated
notations in Dr. DeFusco's notes that Ms. Aurilio's
hobbies included “photography, hiking, walking, working
out w/weights” and that she “walks dogs 45-90 min
3/week good clip, other days weights.” (R. 664.) But
these notes were part of Ms. Aurilio's “Social
History” and do not appear to have been updated
regularly. This notation appears verbatim in nearly all of
Dr. DeFusco's notes. (Compare R. 838 (from a Jan. 19,
2015 appointment) with R. 664 (from a November 11, 2013
appointment) with R. 381 (from a September 6, 2011
appointment)). Moreover, the notations sometimes contradict
contemporaneous reports by Ms. Aurilio's other
physicians. For example, on January 9, 2015, Dr. Dempsey made
a note that Ms. Aurilio has been “unable to
exercise” “for years.” (R. 858.) Just ten
days later, on January 19, 2015, Dr. DeFusco again included
the same notation indicating that Ms. Aurilio walked her dog
three times a week and exercised with weights the other days.
In light of Dr. DeFusco's specific opinion on this issue,
the ALJ should have at least considered the possibility that
these notes were copied and pasted from record to record over
the course of the many years Ms. Aurilio saw Dr. DeFusco,
along with her medical, surgical, and family histories. They
hardly constitute reliable evidence as to Ms. Aurilio's
activity level during the relevant time period. Moreover, to
the extent that “an ALJ perceives inconsistencies in a
treating physician's reports, the ALJ bears an
affirmative duty to seek out more information from the
treating physician and to develop the administrative record
accordingly.” Rosa v. Callahan, 168 F.3d 72,
79 (2d Cir. 1999).
the ALJ takes Dr. DeFusco's statement out of context. Dr.
DeFusco writes that in response to her constellation of
symptoms, “[Ms. Aurilio's] medications were
adjusted, and [she] cooperated as best as she could with
exercise programs, to no avail.” (R. 1002.) Dr. DeFusco
next notes a “decline in her overall condition”
and that her “functional status deteriorated.”
(R. 1002.) “[T]o no avail” here appears to
indicate that efforts to address Ms. Aurilio's health
problems, with changes in her medications and with exercise
programs, were unsuccessful, and her condition continued to
deteriorate; not that she was unable to exercise at all. A
fair reading of the opinion and the relevant portions of the
record undermines any claimed contradiction.
the ALJ argues that Dr. DeFusco's statement that Ms.
Aurilio had “increasing symptoms of anxiety and
depression” (R. 1002) “stands in contrast to her
treatment notes showing improved mood and reactivity”
(R. 17). In a November 11, 2013 appointment, Dr. DeFusco
notes that Ms. Aurilio's diet change “helped mood
and reactivity.” (R. 396.) But this note does not
indicate how much the diet change helped her mood, nor does
it speak to the overall trend during this time period.
Indeed, the same note states that she “even had
suicidal thoughts which resolved esp[ecially] since” a
diet change. (Id.) Given the uncontroverted opinion
of Dr. Dempsey regarding Ms. Aurilio's “waxing and
waning” symptoms due to the nature of her condition (R.
885), periodic reports of feeling better do not undermine Ms.
also did not “explicitly consider” the
“frequency, length, nature, and extent” of the
treating relationship between Ms. Aurilio and Dr. DeFusco, as
the treating physician rule required. Greek v.
Colvin, 802 F.3d at 375. Dr. DeFusco treated Ms. Aurilio
on a regular basis throughout the entirety of the relevant
time period. In 2013 alone, Dr. DeFusco saw Ms. Aurilio at
least five times. Dr. DeFusco is thus uniquely situated to
opine on the general trajectory of Ms. Aurilio's
condition. The ALJ gives no indication he considered this
to the limited extent that Dr. DeFusco's opinion
contradicts evidence in the record, the contradictions are
ambiguous at best. Further, they are unrelated to an
important conclusion drawn by Dr. DeFusco, which the ALJ
explicitly rejects. Namely, Dr. DeFusco opined that the delay
in Ms. Aurilio's diagnosis for Lyme Disease
“allow[ed] the infection to affect her immune and
autonomic systems.” (R. 1002.) Thus, Dr. DeFusco, who
had treated Ms. Aurilio through nearly all of the relevant
time period, endorsed the theory that many of Ms.
Aurilio's symptoms were caused or exacerbated by her then
undiagnosed Lyme Disease, which contributed to her
“functional status deteriorat[ing] to the point where
she felt her health was in total disorder, both physical and
mental.” (R. 1002.) By contrast, the ALJ concluded that
Ms. Aurilio's Lyme Disease did not cause functional
limitations prior to the last date insured. (R. 16.) The ALJ
has failed to provide a “good reason” for