United States District Court, D. Connecticut
ORDER REMANDING CASE
W. THOMPSON UNITED STATES DISTRICT JUDGE
reasons set forth below, the decision of the Commissioner is
reversed and this case is remanded for additional proceedings
consistent with this order.
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).
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.
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.
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
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) (summary order) (quoting 20
C.F.R. §§ 404.1513(b)(6), 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.
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).
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). Pursuant to 20 C.F.R.
404.1512(e), 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.
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