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Newton v. Berryhill

United States District Court, D. Connecticut

September 26, 2019

DANNY NEWTON, 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 Commissioner’s denial of benefits, Danny Newton argues that the Administrative Law Judge (ALJ) erred because she (1) failed to properly formulate his residual functional capacity (RFC); (2) failed to properly evaluate his claim under the Medical-Vocational Guidelines; and (3) failed to properly evaluate the jobs available to him. I agree with Mr. Newton’s first argument. On remand, the ALJ must develop the record and reevaluate Mr. Newton’s RFC in light of the new record. I do not reach Mr. Newton’s remaining claims.

         I assume the parties’ familiarity with Mr. Newton’s medical history (summarized in a stipulation of facts filed by the parties, ECF No. 16-2, which I adopt and incorporate herein by reference), the ALJ 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). As such, the Commissioner’s decision “may be set aside only due to legal error or if it is not supported by substantial evidence.” Crossman v. Astrue, 783 F.Supp.2d 300, 302–03 (D. Conn. 2010). 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) (internal quotation marks and citation omitted). Substantial evidence is “more than a mere scintilla or a touch of proof here and there in the record.” Id.

         II. Discussion

         A. The ALJ’s RFC Determination Was Not Supported by Substantial Evidence

         Mr. Newton argues that the ALJ failed to properly formulate his RFC. ECF No. 16-1 at 2. More specifically, he argues that the ALJ had an affirmative duty to obtain a medical source statement from a treating physician because the medical opinions in the record did not meaningfully address his functional limitations. Id. at 10-11.[1] I agree.

         i. The ALJ Made an RFC Determination in the Absence of Supporting Expert Medical Opinion

         The RFC is an assessment of “the most [a claimant] can still do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). It is well established that “an ALJ who makes an RFC determination in the absence of supporting expert medical opinion has improperly substituted his own opinion for that of a physician, and has committed legal error.” Staggers v. Colvin, 2015 WL 4751123, at *2 (D. Conn. Aug. 11, 2015) (internal quotation marks and citations omitted). “The Social Security ALJ, unlike a judge in a trial, must on behalf of all claimants affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding.” Morris v. Berryhill, 721 F. App’x 25, 27 (2d Cir. 2018) (internal quotation marks and alterations omitted). Thus, where the record does not contain relevant medical opinion evidence, an ALJ has an “affirmative duty to request RFC assessments from a plaintiff’s treating sources.” Felder v. Astrue, 2012 WL 3993594, at *11 (E.D.N.Y. Sept. 11, 2012); see also Marshall v. Colvin, 2013 WL 5878112, at *9 (W.D.N.Y. Oct. 30, 2013) (finding that a record with “extensive medical documentation” was insufficient because “it lacked any statement from Plaintiff’s treating physicians . . . regarding her functional abilities”); Aceto v. Commr. of Soc. Sec., 2012 WL 5876640, at *16 (N.D.N.Y. Nov. 20, 2012) (“Since the ALJ had nothing more than treatment records and consultative reports to review, he had an affirmative duty to develop the record and request that Plaintiff’s treating physicians assess her RFC.”).

         An ALJ’s failure to request RFC assessments may be harmless, and thus no remand warranted, in cases where “the record contains sufficient evidence from which an ALJ can assess the petitioner’s residual functional capacity.” Tankisi v. Commr. Soc. Sec., 521 Fed. App’x 29, 34 (2d Cir. 2013). For example, remand is not warranted when “the ALJ ha[s] [a] No. of functional assessments from consultative examiners and some form of functional assessment from a treating source” even if there is no formal RFC assessment in the record. Staggers, 2015 WL 4751123, at *3. Similarly, remand may not be necessary where the ALJ rejects the medical opinion evidence in the record, but the RFC formulation is supported by substantial evidence of functional capacity in “contemporaneous treatment notes.” Monroe v. Comm'r of Soc. Sec., 676 Fed. App’x 5, 8–9 (2d Cir. 2017). So, while “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, a decision not to remand assumes that there are no obvious gaps in the record precluding the ALJ from properly assessing the claimant’s residual functional capacity.” Downes v. Colvin, 2015 WL 4481088, at *15 (S.D.N.Y. July 22, 2015) (internal quotation marks and citation omitted). In short, “courts have upheld an ALJ’s RFC finding only where the record is clear and, typically, where there is some useful assessment of the claimant’s limitations from a medical source.” Staggers, 2015 WL 4751123, at *3. This is not such a case.

         Here, the ALJ determined that Mr. Newton “has the residual functional capacity to perform light work as defined in 20 CFR § 404.1567(b) except he can perform occasional climbing of ramps or stairs with occasional balancing, stooping, kneeling, crouching, or crawling, but no ability to do work that involves climbing ladders, ropes, or scaffolds.” R. 14. She also determined that Mr. Newton “should avoid concentrated exposure to extreme cold, extreme heat, wetness, vibration, or hazards such as machinery or heights” and that he “is limited to standing and or walking no more than two hours cumulative during the course of a workday in addition to normal breaks.” R. 14.

         This RFC determination is not supported by any functional assessments from treating physicians. Although the ALJ considered statements from treating physician Seth Blattman that Mr. Newton’s symptoms impeded his ability to work, R. 17, she determined that they were “not entitled to any special significant weight” because “they are vague and discuss no functional limitations, ” and because they concern issues that “are reserved to the Commissioner, ” R. 17-18. While the ALJ is not required to accord weight to opinions on issues reserved to the Commissioner, Dr. Blattman’s statements suggest a need to inquire further to understand why a treating physician believed that Mr. Newton’s ability to work was impeded-at least where there was no function-by-function analysis from a treating physician and, as discussed below, no information whatsoever from any medical source for nearly half of the relevant time period.

         The only functional assessments the ALJ cites are part of the disability determination explanations and are authored by non-examining physicians. R. 17 (citing to Exhibits 2A and 4A). Moreover, these assessments were completed in December 2014 and March 2015, R. 108-09, 120, even though Mr. Newton may establish disability at any time on or before June 13, 2017, ECF No. 17-1 at 2; R. 11. Thus, the state agency assessments provide no information about Mr. Newton’s functional capacity for more than two years of the relevant time period, which is from Mr. Newton’s alleged date of disability date, June 1, 2014, through the date of the Commissioner’s final decision, June 13, 2017. R. 10, 20. The ALJ recognized this deficiency and assigned “[l]ess weight” to their findings that Mr. Newton could stand or walk up to six hours, explaining that the state agency assessments “were based on information contained in the record at the time that the assessments were made, and no medical records generated or provided after that date were considered by these doctors.” R. 17. The ALJ does not explain why the same concern does not warrant the assignment of “less weight” to other findings-like the finding that Mr. Newton could occasionally lift and/or carry 20 pounds, R. 105, 117-in the state agency assessments. Thus, the ALJ’s finding that Mr. Newton is “limited to standing and or walking no more than two hours cumulative during the course of ...


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