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Card v. Berryhill

United States District Court, D. Connecticut

September 16, 2019

RUSSELL JAMES CARD, JR., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REMANDING CASE

          ALVIN W. THOMPSON UNITED STATES DISTRICT JUDGE

         For the reasons set forth below, the decision of the Commissioner is reversed and this case is remanded for additional proceedings consistent with this order.

         “A district court reviewing a final [] decision . . . [of the Commissioner of Social Security] pursuant to . . . the Social Security Act, 42 U.S.C. § 405(g) . . . is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). The court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. See 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 Commissioner applied the correct legal principles in reaching a conclusion and whether the decision is supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).

         The plaintiff argues, inter alia, that the Administrative Law Judge (“ALJ”) had a duty to request a medical source statement (“MSS”) from treating physician Elizabeth Arbia because her “contemporaneous chart notes do not provide any meaningful indication as to what she believes Mr. Card can or cannot do on a function-by-function basis[, nor] . . . any meaningful indication of how many days per month Mr. Card would be expected to be out of work either due to his conditions or for the treatment of them, a fact of great significance given the vocational witness's testimony that a worker's absence one day per month would result in no available jobs (R. 55). Pl.'s Mem. to Reverse (“ECF No. 20-2”) at 4. The plaintiff also argues that the ALJ's failure to specifically consider the “evaluation performed by a physical therapist . . . on December 18, 2015 (R. at 1082-1086)” noting that the plaintiff “would require some type of job retraining” and was “probably able to perform sedentary job part time” is a legal error that could have affected the disability determination. Pl.'s Mem. to Reverse (“ECF No. 20-2”) at 2.

         The defendant argues, inter alia, that the ALJ's Residual Functional Capacity (“RFC”) determination was supported by substantial evidence because it included consideration of the opinions of nonexamining state agency medical consultants Drs. Golkar, Sandell and Chopra. See Def.'s Mem. to Affirm (“ECF No. 24-1”) at 7-11. As to the physical therapist's medical source statement, the defendant argues that the physical therapist's name is illegible; that the form was “completed by an unnamed physical therapist, who was not an acceptable medical source”; that the “evaluation took place just four months after Plaintiff left the hospital, and while he was undergoing physical therapy and reportedly using a cane”; and that the report did not provide any rationale supporting the limitations assessed.” See Def.'s Mem. to Affirm (“ECF No. 24-1”) at 14.

         The court concludes that, at minimum, the ALJ had a duty to communicate in a reviewable way that he considered and weighed the physical therapist's assessment in relation to all of the evidence, which includes Dr. Arbia's records and MSS referral, given that the physical therapist's MSS was the only apparent one prepared by an examining medical source. This, standing alone, warrants remand.

         LEGAL STANDARD

In general, “the ALJ, unlike a judge in a trial, must . . . affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, even if the claimant is represented by counsel.” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (citation omitted) (internal quotation marks omitted). “Social Security Administration rules provide that ‘[m]edical reports should include . . . [a] statement about what [the claimant] can still do despite [his] impairment(s) ... Although [the SSA] will request a medical source statement about what [the claimant] can still do despite [his] impairment(s), the lack of the medical source statement will not make the report incomplete.'” Tankisi v. Commissioner of Social Security, 521 Fed.Appx. 29, 33 (2d Cir. 2013)[1] (summary order) (quoting 20 C.F.R. §§ 404.1513(b)(6)[2], 416.913(b)(6)). “[T]he plain text of the regulation does not appear to be conditional or hortatory: it states that the Commissioner ‘will request a medical source statement' containing an opinion regarding the claimant's residual capacity . . . . The regulation thus seems to impose on the ALJ a duty to solicit such medical opinions.” Id. (quoting 20 C.F.R. §§ 404.1513(b)(6), 416.913(b)(6)) (emphasis in original). The regulations state that the reports should include a statement about the claimant's residual capacity, and that the lack of a medical source statement is not necessarily fatal to the record. See Id. Accordingly, it is not “per se error for an ALJ to make a disability determination without having sought the opinion of the claimant's treating physician.” Sanchez v. Colvin, 2015 WL 736102, at *5 (S.D.N.Y. 2015).
Even without a medical source statement, an “ALJ's conclusions would not be defective if he requested opinions from medical sources and the medical sources refused.” Tankisi, 521 Fed.Appx. at 33-34. Further, the failure of the ALJ to procure formal opinions about a claimant's residual functional capacity does not, by itself, require remand where the medical record is “quite extensive[, ] ... voluminous[, ] . . . [and] adequate to permit an informed finding by the ALJ.” Tankisi, 521 Fed.Appx. at 34; see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013) (summary order) (“[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information.” (quoting Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999)). “Remand is not always required when an ALJ fails in his duty to request opinions particularly where ... the record contains sufficient evidence from which an ALJ can assess the petitioner's residual functional capacity.” Tankisi, 521 Fed.Appx. at 34. That is particularly true where the record includes assessments of the claimant's limitations from a treating physician. Id.
Remand is required where an ALJ's residual functional capacity decision is “wholly unsupported by any medical evidence.” Jermyn v. Colvin, 2015 WL 1298997, at *19 (E.D.N.Y Mar. 23, 2015). Remand is also necessary where “the medical records obtained by the ALJ do not shed any light on the [claimant's RFC], and [where] the consulting doctors did not personally evaluate” the claimant. Guillen v. Berryhill, 697 Fed.Appx. 107, 108-09 (2d Cir. 2017) (summary order). The record is insufficient when “[t]he medical records discuss [the claimant's] illnesses and suggest treatment for them, but offer no insight into how [the] impairments affect or do not affect [the claimant's] ability to work, or [his] ability to undertake the activities of daily life.” Id. at 109.

Martinez v. Berryhill, No. 3:17-CV-843 (SRU), 2019 WL 1199393, at *10-11 (D. Conn. March 14, 2019).

         Also, the Social Security Administration makes clear that “[r]egardless of its source, we will evaluate every medical opinion we receive.” 20 C.F.R. § 404.1527(c)[3]. Pursuant to 20 C.F.R. 404.1512(e)[4], the ALJ generally “will not request a consultative examination” “nor evaluate this evidence” “until” the ALJ has made “every reasonable effort to obtain evidence from” the plaintiff's “own medical sources”.

Opinions from . . . medical sources, who are not technically deemed “acceptable medical sources” under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.

         Social Security Ruling 06-03p (Rescinded effective March 27, 2017, i.e. after November 6, 2015, when the plaintiff filed his claim for disability benefits.); Kellams v. Berryhill, 696 Fed.Appx. 909, 918 (10th Cir. 2017) (remanding for failure to evaluate a physical therapist's functional capacity evaluation on key issues such as impairment severity and functional effects even though the therapist was not considered an acceptable medical source pursuant to 20 C.F.R. § 404.1502(a) (citing Bowman ...


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