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Paul Perrone v. Saul

United States District Court, D. Connecticut

September 30, 2019

JOHN BASIL PAUL PERRONE, Plaintiff,
v.
ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          RULING AND ORDER

          Robert N. Chatigny United States District Judge

         Plaintiff brings this action against the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g), challenging the denial of his application for Title II disability insurance benefits (“DIB”). The Administrative Law Judge (“ALJ”) determined that plaintiff was not disabled at the pertinent time, although he did have several severe impairments. Plaintiff moves for an order reversing the decision and remanding for payment of benefits or further proceedings in accordance with the fourth sentence of 42 U.S.C. § 405(g). The Commissioner moves for an order affirming the denial of benefits. I conclude that a remand is necessary to ensure that proper consideration is given to the opinions of plaintiff’s treating physicians. Accordingly, plaintiff’s motion to reverse is granted in part and the Commissioner’s motion to affirm is denied.[1]

         I. Background

         I assume the parties’ familiarity with the facts and procedural history of this case and therefore provide only a brief summary. Plaintiff applied to the Social Security Administration (“SSA”) for DIB in 2006 and 2010. His deemed onset date is July 1, 1999. He met the insured status requirements of the Social Security Act (“the Act”) through March 31, 2005, his “date last insured.” Accordingly, to receive DIB, plaintiff must establish that he had a disability on or before March 31, 2005.[2]

         Plaintiff has had problems with his back since at least 1990, when he was in a car accident. He also has a history of Lyme disease that dates to at least 2004. The existing record does not contain all his medical records prior to his date last insured. There are records from 1990 and 1993, followed by a gap until 2004. The record is comparatively voluminous after plaintiff’s date last insured.[3]

         The SSA denied plaintiff’s application initially and on reconsideration. On September 23, 2011, he appeared with counsel for a hearing before an ALJ and testified extensively. On June 1, 2012, he and his counsel appeared before the ALJ for a supplemental hearing. They were accompanied by plaintiff’s father, who appeared as a witness. On July 27, 2012, the ALJ issued a decision finding that the 2010 application was barred by res judicata. The Appeals Council disagreed and remanded the case for further proceedings. On May 1, 2014 and January 16, 2015, plaintiff again appeared with counsel at hearings before the ALJ. A medical expert testified at the January 2015 hearing.

         On May 27, 2015, the ALJ issued the decision that is the subject of this appeal. The ALJ concluded that plaintiff was not disabled as of his date last insured and thus not eligible for DIB. The Appeals Council denied plaintiff’s request for review on November 29, 2016. This appeal followed.

         II. Legal Standard

         “A district court reviewing a final . . . decision [of the Commissioner] pursuant to . . . 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981). Accordingly, the Court may not make a de novo determination of whether a plaintiff is disabled. See id.; Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court’s function is to ascertain (1) whether the Commissioner applied the correct legal principles and (2) whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive . . . .” 42 U.S.C. § 405(g). If the Commissioner’s decision is supported by substantial evidence, it will be sustained, even if there may also be substantial evidence to support the plaintiff’s position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

         Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” which means “more than a mere scintilla or a touch of proof here and there in the record.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         III. Discussion

         The Act establishes that benefits are payable to individuals who have a disability. 42 U.S.C. § 423(a)(1). I assume the parties’ familiarity with the five steps of a disability determination. 20 C.F.R. § 404.1520(a)(4)(i)-(v); e.g., DeMico v. Berryhill, No. 3:17CV00805(SALM), 2018 WL 2254544, at *3-4 (D. Conn. May 17, 2018) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)).[4]

         The ALJ found that during the relevant time period, plaintiff had three severe impairments: spondylosis of the lumbar spine with possible pars defect, degenerative disc disease of the lumbar spine, and a history of Lyme disease. Nevertheless, the ALJ found that as of March 31, 2005, plaintiff had the residual functional capacity (“RFC”) to perform the full range of light work as defined in 20 C.F.R. § 404.1567(b). Consulting the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, the ALJ found that based on plaintiff’s RFC, age, education, and work experience, a finding of “not disabled” was directed by Medical-Vocational Rule 202.20.

         On appeal, plaintiff argues that the ALJ erred in three ways. He asserts that the ALJ erred at the RFC-determination phase by (1) determining that plaintiff could perform the full range of light work, despite contrary opinions from treating physicians, and (2) relying on a medical expert whose testimony plaintiff faults as internally contradictory, biased, and based on an incomplete review of the record. In addition, he argues that the ALJ erred by (3) failing to obtain vocational expert testimony despite the presence of significant non-exertional limitations.

         Plaintiff’s first two arguments have merit. I agree with him that in the context of this case, the opinions of his treating physicians, particularly that of his primary care doctor, Dr. Rabindranath Mahabir, require fuller consideration. I also agree with his argument that the ALJ gave too much weight to the testimony of the medical expert. Under Second Circuit law, a remand is necessary in accordance with the treating physician rule and the Commissioner’s duty to develop the record.[5]

         A. The Treating Physician Rule

         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.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (citation, internal quotation marks, and brackets omitted). The treating physician rule “generally requires a measure of deference to the medical opinion of a claimant’s treating physician.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam).

         Still, the treating physician’s opinion must be consistent with other substantial evidence to be given controlling weight. Such “other substantial evidence” can include “the opinions of other medical experts.” Greek, 802 F.3d at 375 (quoting Halloran, 362 F.3d at 32). Thus, it is possible for other doctors’ contrasting opinions to limit the weight assigned to a treating physician’s opinion.

         However, if the treating physician’s opinion is not given controlling weight, the ALJ must consider certain factors to determine the appropriate weight to give the opinion.[6] Id. (citing 20 C.F.R. § 404.1527(c)). Moreover, whatever weight is assigned to a treating physician’s opinion, the ALJ must “always give good reasons” for that weight. 20 C.F.R. § 404.1527(c)(2) (2015); e.g., Smith v. Berryhill, 740 Fed.App’x 721, 724 (2d Cir. 2018) (“An ALJ must provide ‘good reasons’ for affording limited weight to the treating source’s opinion and more weight to a non-treating source.” (citations omitted)). In other words, if the treating physician’s opinion is to be disregarded, the ALJ must explain why. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (“[A]dministrative decisionmakers . . . [have an] obligation, under Schaal and § 404.1527(d)(2), to explain why a treating physician’s opinions are not being credited.” (citing Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998))). Courts “do not hesitate to remand when the Commissioner has not provided ‘good reasons’ for the weight given” to a treating physician’s view, and remand is appropriate when the ALJ’s opinion “do[es] not comprehensively set forth reasons for the weight assigned to a treating physician’s opinion.” Halloran, 362 F.3d at 33 (emphasis added).

         The treating physician rule thus imposes a strict duty on the ALJ to analyze the opinions of treating physicians. “[T]he fact that there may have been reasons to discount the treating physicians’ opinions does not relieve the ALJ of [her] obligation to discuss the opinions and assign them weight.” Budnick v. Comm’r of Soc. Sec., No. 3:17-CV-01546(SALM), 2018 WL 4253172, at *7 (D. Conn. Sept. 6, 2018) (citing Snell, 177 F.3d at 134); see also Perez v. Astrue, No. 07–CV–958 (DLJ), 2009 WL 2496585, at *8 (E.D.N.Y. Aug. 14, 2009) (“Even if [the treating physician’s] opinions do not merit controlling weight, the ALJ must explain what weight she gave those opinions and must articulate good reasons for not crediting the opinions of a claimant’s treating physician.”).

         B. The Duty to Develop the Record

         The ALJ also has a duty to develop and fill gaps in the record. See 20 C.F.R. § 404.1545(a)(3). The ALJ has the “affirmative obligation to develop the administrative record . . . even when the claimant is represented by counsel.” Rogers v. Astrue, 895 F.Supp.2d 541, 549-50 (S.D.N.Y. 2012) (quoting Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)) (citing Butts v. Barnhart, 388 F.3d 377, 386 (2d Cir. 2004); Blanda v. Astrue, No. 05–CV–5723, 2008 WL 2371419, at *7 (E.D.N.Y. June 9, 2008)); see also Martinez v. Massanari, 242 F.Supp.2d 372, 378 (S.D.N.Y. 2003) (citations omitted).[7] Second Circuit law “places the burden on the ALJ, not the claimant, to develop the administrative record.” DeMico, 2018 WL 2254544, at *7 (emphasis in original) (citing Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)).

         Accordingly, “an ALJ cannot reject a treating physician’s diagnosis without first attempting to fill any clear gaps in the administrative record.” Rosa, 168 F.3d at 79 (citing Schaal, 134 F.3d at 505; Hartnett v. Apfel, 21 F.Supp.2d 217, 221 (E.D.N.Y. 1998)). An ALJ’s duty to develop the record may require her to seek clarifying information from a physician whose notes are in the record or to attempt to obtain records from other physicians identified by the claimant. See Rosa, 168 F.3d at 80, 83; Rogers, 895 F.Supp.2d at 550-51; Molt v. Comm’r of Soc. Sec., No. 05–CV–418, 2009 WL 5214920, at *6 (N.D.N.Y. Dec. 28, 2009) (finding that the ALJ erred in not “re-contact[ing]” treating sources to “supply opinions”). When gaps in the record leave the accuracy and fairness of the disability determination in doubt, the appropriate disposition is to remand the case “for further development ...


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