United States District Court, D. Connecticut
RULING ON THE PLAINTIFF’S MOTION TO REVERSE AND
THE DEFENDANT’S MOTION TO AFFIRM THE DECISION OF THE
Michael P. Shea, U.S.D.J.
appeal from the Social Security Commissioner’s denial
of supplemental security income and disability insurance
benefits, Gabriel Gustafson argues that the Administrative
Law Judge (ALJ) erred because (1) he failed to evaluate the
opinion of agency personnel; (2) he failed to properly apply
the treating physician rule; (3) he failed to evaluate the
opinions of non-acceptable medical sources; (4) he failed to
properly assess the opinions of consultative examiners; (5)
he failed to ask the vocational expert about the same
residual functional capacity (RFC) assessment he had found
applied to Mr. Gustafson; (6) he failed to properly evaluate
Mr. Gustafson’s connective tissue disorder, headaches,
and obesity; (7) he failed to properly assess Mr.
Gustafson’s statements concerning the intensity,
persistence, and limiting effects of his symptoms; (8) his
determination that Mr. Gustafson did not need a cane was not
supported by substantial evidence; and (9) his determination
of Mr. Gustafson’s RFC was not supported by substantial
evidence. He also argues that the ALJ who presided over Mr.
Gustafson’s administrative hearing was not appointed in
conformity with the Appointments Clause. Finally, he argues
that the Appeals Council erred when it failed to consider new
evidence. I agree with Mr. Gustafson’s argument that
the ALJ did not properly evaluate the opinions of two
treating physicians and two other sources. I remand on those
bases and do not reach Mr. Gustafson’s remaining
assume the parties’ familiarity with Mr.
Gustafson’s medical history (summarized in a
stipulation of facts filed by the parties, ECF No. 21-2,
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
STANDARD OF REVIEW
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
Gustafson filed a Title II application for disability
insurance benefits (“DIB”) as well as a Title XVI
application for supplemental security income
(“SSI”). R. 19. Benefits were denied under both
applications. R. 37. I address the ALJ’s decision with
respect to each application separately as the time period
relevant to the two applications differs.
Relevant Time Period
entitled to an award of supplemental security income, a
claimant must demonstrate that he or she became disabled at
any time before the ALJ’s decision. Frye ex rel.
A.O. v. Astrue, 485 Fed.Appx. 484, 485 n.1 (2d Cir.
2012) (noting that, for SSI benefits, the relevant time
period is from “the date the SSI application was
filed” to “the date of the ALJ’s
decision”); see also DeMico v. Berryhill, 2018
WL 2254544, at *6 n.8 (D. Conn. 2018) (“[T]o be
entitled to an award of Supplemental Security Income, a
claimant must demonstrate that he or she became disabled at
any time before the ALJ’s decision.”). The
ALJ’s decision in this case was issued on January 31,
2018. R. 37. Thus, with respect to his application for
supplemental security income, Mr. Gustafson must prove that
he became disabled within the meaning of the Social Security
Act before January 31, 2018.
Treating Physician Rule
Gustafson argues that the ALJ failed to comply with the
treating physician rule in evaluating the opinions of Dr.
Micha Abeles and Dr. John Menoutis. ECF No. 21-1 at 4-7.
Under this 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
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
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.
Dr. John Menoutis
Menoutis completed an RFC questionnaire on January 10, 2018.
R. 822-825. He lists Mr. Gustafson’s diagnoses as
“PTSD, depression, fibromyalgia, cervical spinal
stenosis;” explains that there was an “MRI
showing cervical stenosis;” and notes that the
“severity of pain [is] mostly in [the] neck from
cervical stenosis [and] other pain [illegible]
fibromyalgia.” R. 822. He determined that Mr.
Gustafson’s pain or other symptoms would
“frequently” or “constantly”
interfere with the attention and concentration needed to
perform even simple work tasks; that he could sit and
stand/walk less than 2 hours in an 8-hour workday; that he
would have to take “5 to 20” unscheduled breaks
during an 8-hour workday with each break lasting “5 to
10” minutes; that he must use a cane or other assistive
device; that he could never carry 10 pounds or more; that he
could rarely look down, turn his head right or left, look up,
or hold his head in a static position; that he could use his
hands and fingers for fine manipulations, grasping, and
reaching only 60% of the time during an 8-hour work day; and
that he would likely be absent from work more than 5 days a
month. R. 823-25. The ALJ assigned “little
weight” to this opinion, explaining that “it is
inconsistent with the medical evidence of record.” R.
33. I find that the ALJ erred in his evaluation of Dr.
first Greek factor requires an ALJ to consider the
“frequency, length, nature, and extent of
treatment.” Greek, 802 F.3d at 375. Although a
“slavish recitation of each and every factor” is
unnecessary “where the ALJ’s reasoning and
adherence to the regulation are clear, ” Atwater v.
Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013), no such
clarity exists here because the ALJ failed to even mention
Mr. Gustafson’s treating history with Dr. Menoutis,
which was substantial. From the record, it appears that Dr.
Menoutis began treating Mr. Gustafson at least as early as
September 2016, ECF No. 21-2 at 12, and that he saw Mr.
Gustafson “2 to 3 times per year” for twenty
minutes to one hour each time. R. 822. Without an explanation
of how the ALJ considered this treating history, or any
indication that he considered it at all, I cannot determine
whether he properly applied the law in determining that the
opinion is entitled to “little weight.”
second and third Greek factors require explicit
consideration of “the amount of medical evidence
supporting the opinion” and “the consistency of
the opinion with the remaining medical evidence.”
Greek, 802 F.3d at 375. The ALJ points to various
treatment notes and records to support his finding that Dr.
Menoutis’s opinion was inconsistent with the medical
evidence of record. R. 33. But the evidence he identifies
does not constitute “good reason” to assign
“little weight” to the opinion in its entirety.
The ALJ begins by explaining that the opinion was
inconsistent with the record because the record showed that
Mr. Gustafson “was consistently alert, fully oriented,
well nourished, well developed, calm, cooperative, well
groomed, and in no acute distress.” R. 33. The ALJ uses
this phrase repeatedly in his ruling to reject opinion
evidence. R. 30, 31, 32, 33. But this refrain is not
particularly responsive to the opinions of Dr. Menoutis or
(as discussed below) Dr. Abeles. With the exception of
“no acute distress, ” the phrase describes Mr.
Gustafson’s mental state and does not contradict Dr.
Menoutis’s findings, which are largely about Mr.
Gustafson’s physical limitations, i.e., that he could
rarely turn his head, could use his hands for fine
manipulations only 60% of the time, could not stand or walk
for more than 2 hours in an 8-hour workday, must use a cane,
and so on. Moreover, “no acute distress” is
consistent with Dr. Menoutis’s opinion as many of the
limitations he identifies are chronic as opposed to acute.
addition, the ALJ does not provide specific citations to
support his determination that Mr. Gustafson was
“consistently” alert, fully oriented, well
groomed, in no acute distress and so on; instead, he cites
Exhibits 7F, 11F, 20F, 22F, 23F, and 26F in full. It is
therefore difficult to determine which specific records in
these lengthy exhibits he relied on. Worse, these exhibits
include several treatment notes that are
inconsistent with the ALJ’s refrain that Mr.
Gustafson “was consistently alert, fully oriented, well
nourished, calm, cooperative, well groomed, and in no acute
distress.” R. 33; see, e.g., R. 574 (treatment
note in 7F stating that Mr. Gustafson was “disheveled,
” had “poor” insight, and
“limited” judgement); R. 578 (treatment note in
7F noting that he was “disheveled” and has
“chronic pain”); R. 580 (treatment note in 7F
noting “mood irritable” and “angry/hostile
affect”); R. 616 (treatment note in 11F stating that he
complained “most specifically” about a
“worsening headache associated with nausea and vomiting
from a unclear etiology”); R. 621 (treatment note in
11F noting that “[p]atient appears to be in significant
pain, grimacing throughout interview”); R. 626-27
(treatment note in Exhibit 11F noting “in distress as a
result of pain” and “severe neck pain and
shoulder pain”); R. 843 (treatment note in Exhibit 26F
noting “diffuse pain with movement of all joints in his
extremities”). Thus, to the extent the ALJ’s
blanket citation of these records is intended to describe
them in their entirety, his description is not supported by
substantial evidence, because the exhibits as a whole do not
show that Mr. Gustafson was “consistently
alert, fully oriented, well nourished, well developed, calm,
cooperative, well groomed, and in no acute distress.”
R. 33 (emphasis added).
sure, there are also entries in the cited exhibits that
support the characterization in the ALJ’s refrain,
see, e.g., R. 777 (treatment note in 20F reporting
that therapy was going “very well, ” physical
therapy was helping his hips, he had a calm and cooperative
affect, and presented with appropriate grooming); R. 792
(treatment note in 22F reporting “[n]o acute
distress” and largely normal findings), and it is
within the ALJ’s sole province to weigh and resolve
conflicts in the medical evidence, Jeffrey A. on behalf
of J.M.A. v. Saul, 2019 WL 3081092, at *7 (N.D.N.Y. July
15, 2019) (citing cases). But it does not satisfy the
ALJ’s obligation to give “good reasons” for
rejecting a treating physician’s opinion to point
vaguely to a pile of lengthy exhibits containing mixed
evidence about a claimant, some of which supports the
treating physician’s opinion and little of which
directly contradicts it.
the ALJ determined that Dr. Menoutis’s opinion was
inconsistent with the medical evidence of record because the
record showed that Mr. Gustafson “had significant
improvement in his neck and upper back, ” and
“improvement in the tingling and numbness in his upper
activities” in May 2017. R. 33. But a finding of
“significant improvement” or
“improvement” does not identify a baseline and is
not necessarily inconsistent with the functional limitations
identified by Dr. Menoutis; that is, Mr. ...