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Aurilio v. Berryhill

United States District Court, D. Connecticut

September 16, 2019

LISA ANN AURILIO, 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 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.

         I 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.

         I. 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.

         II. Discussion

         A. The Treating Physician Rule

         Ms. 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.

         Under 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 opinion.

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.

         1. Dr. DeFusco's 2016 Opinion

         The ALJ 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)).

         Second, 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.[1] 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.

         Third, 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).

         Furthermore, 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.

         Finally, 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. Aurilio's claims.

         The ALJ 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.[2] 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 important factor.

         In sum, 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 ...


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