United States District Court, D. Connecticut
RULING AND ORDER
N. Chatigny United States District Judge.
brings this action pursuant to section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g), seeking review of the
Commissioner's final decision denying her application for
disability insurance benefits. Plaintiff moves for an order
reversing the decision, contending that her waiver of the
right to counsel was not knowingly and intelligently made,
the Administrative Law Judge (“ALJ”) failed to
adequately develop the record, and the ALJ's findings are
not supported by substantial evidence. Defendant moves for an
order affirming the decision. After careful consideration of
the entire administrative record, I conclude that the case
must be remanded for a number of reasons, most importantly to
enable the Commissioner to more fully investigate and assess
the impact of plaintiff's chronic pain on her capacity to
work. The Commissioner discounted plaintiff's complaints
of chronic pain, even though no medical provider had ever
done so in the lengthy history of plaintiff's medical
treatment. And the Commissioner did so in large measure
because plaintiff's complaints were deemed to be
inconsistent with her attempts to work as a home health aid.
On the existing record, this appears to be a case in which
the Commissioner made the error of penalizing a claimant for
enduring the pain of her disability in order to earn money to
support herself. See Woodford v. Apfel, 93 F.Supp.2d
521, 529 (S.D.N.Y. 2000).
Relevant Medical History Prior to Claimed Disability
has an “extremely long and complicated [medical]
history, ” R. 371, encompassing numerous ailments.
Primary among them is an extensive history of back, hip, and
leg pain, the cause of which appears to be a motor vehicle
accident in her youth. Stipulation of Facts (ECF No. 23-2) at
*1-*2. The accident caused a fracture of her right femur,
which led to an inequality in adult leg length of 1-2
centimeters, resulting in back, hip, and leg joint pain. R.
378. At some point following the accident, plaintiff received
an “open reduction internal fixation with femoral
rodding” in her right femur. R. 371; see also
R. 375 (orthopedic surgeon noting that “[t]he right
side is not arthritic but does have hardware in the
femur”), 609 (radiologist noting a “right side
fixation plate and femoral compression screw”).
sought medical attention for her pain on July 24, 2006; a
subsequent x-ray was interpreted by a radiologist to show
“severe degenerative disease involving the left
hip.” Stipulation at *1-*2. As a result, plaintiff
underwent a total left hip replacement on January 16, 2007.
Id. at *2. That operation “probably
exacerbated” her leg length discrepancy to 3
centimeters, leading her orthopedic surgeon, Dr. Peter Boone,
to recommend a lift be added to her right shoe. R. 378.
Plaintiff had several follow-ups with Dr. Boone in 2007. R.
378, 380, 381. At the last, on July 11, 2007, she reported
continued discomfort while walking. Stipulation at *2-*3. Dr.
Boone noted that plaintiff “[wa]s not ready for full
time work” but could “probably do part time
clerical work using the cane to help support her.”
Id. at *3.
next event of note took place in October 2010, when plaintiff
saw Dr. Boone for right hip pain after slipping and falling
while at work in a daycare facility. R. 382. She followed up
with complaints of pain in December 2010, Stipulation at *3,
and received a cortisone injection at the site of maximum
discomfort in January 2011. R. 384. In August 2011, Dr. Boone
noted that plaintiff was continuing to experience discomfort,
particularly “when she is standing for long
periods” or when “lying on her side, ”
despite her use of extra-strength Vicodin. R. 385. At the
same time, plaintiff also reported sensitivity along her
right femur. Stipulation at *3. Dr. Boone theorized that she
was experiencing “remodeling pain” from the
interaction between her femur and the attached plate, which
was “so old that it has cruciate-headed screws”
and “ha[d] remodeled distally to such an extent that it
is almost interosseous.” Id.
Relevant Medical History After Claimed Disability
March 5, 2012, plaintiff's alleged onset date, R. 234,
she fell at work. She told her surgeon she “slipped on
water, landing on her back” and then fell again, this
time landing on her right knee. Stipulation at *3-*4. The
surgeon wrote, “She states that her knee has been
buckling. She has been wearing a knee brace. She has been
using a cane and has had a lot of problems.”
Id. at *4. The surgeon ordered an MRI of
plaintiff's spine, which revealed “L5-S1
degenerative changes[, ] . . . associated central canal
stenosis without nerve root compression, ” and
“[m]oderate facet joint degenerative changes at ¶
4-5 which have progressed.” Id. at *4.
25, 2012, plaintiff had an initial evaluation with a pain
specialist, Dr. Pardeep Sood. Id. Dr. Sood wrote:
She presents with chief complaints of constant low back pain
that radiates down both the legs to the level of the feet.
This is described as sharp pain rated at a severity of 10/10.
The pain increases with activity, with bending, twisting as
also over the course of the day. She denies any relieving
factors beyond medications. She denies any associated
numbness or weakness.
She also complains of neck pain that goes into both shoulders
and into upper extremities, left more so than right. This is
again described as sharp pain rated at a severity of 8-9/10.
The pain increases with activity and at other times
unpredictably so. She denies any relieving factors beyond
medications that helps her some.
Sood described Plaintiff's gait as “antalgic”
(i.e. designed to avoid pain) and noted her limp and use of a
cane. R. 371. Plaintiff reported a decreased range of motion
in her neck, upper spine, and lower spine, with associated
pain in each area. R. 371. Because plaintiff “ha[d]
failed to respond to conservative options alone and
remain[ed] with high levels of pain, ” Dr. Sood
recommended “more aggressive” approaches. R.
371. On July 16, 2012, plaintiff received a series of
transforaminal injections in her lower back. Stipulation at
August 10, 2012, plaintiff had a psychiatric consultation
with a colleague of her orthopedic surgeon, Dr. Isaac
Cohen. Stipulation at *5. He noted that the
injections had provided plaintiff “with a little bit of
relief, ” but “wore off after several
weeks.” Plaintiff had “returned to see [the pain
specialist] and he wanted to repeat back injections but she
state[d] that she is not accustomed to having anyone stick a
needle in her body.” Id. Dr. Cohen also noted
that the pain specialist had prescribed oxycodone and
“ha[d] her out of work.” R. 449.
August 24, 2012, noting that the transforaminal injections
had provided a “good response” in the past, Dr.
Sood repeated the procedure in response to
“recurrence/increased pain of late.” R. 368. On
September 12, 2012, it was noted that plaintiff again had a
“good response” to the injections, which led to
her pain levels being “tolerable for a few
weeks.” He noted that plaintiff's prescription
medications were “helpful”: oxycodone (a narcotic
“used to relieve moderate to severe
pain”); mobic (an anti-inflammatory “used to
relieve pain, tenderness, swelling, and stiffness caused by
osteoarthiritis . . . and rheumatoid
arthritis”); neurontin (an anti-seizure drug often used
to treat nerve pain, particularly in people, like plaintiff,
who have diabetes); and soma (a muscle relaxant used to treat
pain). R. 367. On November 9, 2012, plaintiff
visited Dr. Sood again, reporting a pain level of 8/10 in her
lower back radiating to her right leg. Stipulation at *6.
early-to-mid 2013, plaintiff repeatedly visited an urgent
care facility in Bridgeport, each time seeking help for pain.
Id. at *6-*7. At the time, she reported that she was
seeing a specialist for a torn rotator cuff, although no
records of such a visit are in the record. Id. at
*7. The urgent care facility urged her to visit a primary
care physician, rather than rely on the facility for pain
management. Id. n.8. The record indicates that
plaintiff had lost her insurance and was thus unable to
continue treatment with Dr. Sood. R. 410.
27, 2013, plaintiff saw a new pain management specialist, Dr.
Charles Bruce-Tagoe, and was diagnosed with Chronic Pain
Syndrome. Stipulation at *7. Dr. Bruce-Tagoe prescribed
various pain medications, and entered into a pain management
contract with plaintiff. Id. Dr. Bruce-Tagoe continued
to treat plaintiff for Chronic Pain Syndrome and continued to
provide her with prescriptions for several painkillers while
she remained in Connecticut. Id. at
moved to Georgia in mid-2014. R. 93. In December 2014, a
mammogram revealed a “new palpable mass.”
Stipulation at *9. Id. at *7-8. In March 2015,
plaintiff went to Grady Hospital in Atlanta, where she sought
primary care as a new patient. Id. at 9. At that
time, the following problems were identified: “symptoms
concerning for diabetic neuropathy including recent onset
blurry vision and shoot[ing] pain . . . in her [lower
extremities], ” uncontrolled hypertension, and
degenerative joint disease, featuring “chronic
complain[t]s of pain in her lower back.” R.
507. Plaintiff was subsequently diagnosed
with primary open-angle glaucoma in both eyes. Stipulation at
*9-*10. In addition, she was diagnosed with Stage 11 breast
April 2015, plaintiff began chemotherapy. Her oncologist, Dr.
Hiba Tamim, sought to refer her to a pain specialist for
“degenerative joint disease with chronic pain
syndrome.” Id. at *10-*11. On April 23, 2015,
Dr. Tamim noted that the chemotherapy was aggravating
plaintiff's chronic pain. Id., at *11. Plaintiff
was unable to afford treatment at the Emory pain clinic, and
could not be seen by the Grady pain clinic until August.
Id. In the meantime, Dr. Tamim prescribed a small
number of Percocet tablets for plaintiff “to use
sparingly” during chemotherapy to manage the worst of
the pain. R. 740.
2015, plaintiff was seen by a pain management specialist, Dr.
Justin Ford. Stipulation at *12. He noted that she
reported “low back and right leg pain” rated at a
severity from 5-8 out of 10, which was present about 75% of
the day and night. R. 754. He prescribed a month's worth
of oxycodone. R. 755. On June 18, 2015 - the last record
available to the ALJ - Dr. Tamim wrote that plaintiff
“reports . . feeling more depressed. She is crying more
on a regular basis lately.” R. 760. Dr. Tamim thought
plaintiff's depression could be due to “the stress
of [breast cancer] treatment” and her “chronic
pain” and referred her to a psychiatrist. R. 762.
Medical History After The ALJ Decision
25, 2015, Dr. Tamim noted that plaintiff “report[ed]
depression” and “numbness and tingling in her
fingers and . . . toes.” Stipulation at *13. At some
point between August 26 and September 30, 2015, plaintiff
underwent a lumpectomy to treat her breast cancer.
Id. Subsequently, she started a new, six-week course
of radiation therapy. Id. at *14. Plaintiff informed
Dr. Tamim that she was experiencing new pain in her right
shoulder and was following up with her pain management clinic
and an orthopedic doctor. Id.
March 15, 2016, plaintiff was seen by an eye specialist, who
noted that plaintiff's glaucoma in both eyes had reached
a “severe stage.” Id. at *15.
from March 22, 2016 indicate that the pain clinic was
continuing plaintiff's prescription of 10mgs of Oxycodone
three times a day. Id. Dr. Tamim also reported that
“she had] been more depressed, crying at times.”
Id. On July 6, 2016, Plaintiff reported to Dr. Tamim
that she was taking 5 mg of oxycodone three times a day. R.
50. The final medical record available in the administrative
record is from plaintiff's follow-up visit with Dr. Tamim
on September 6, 2016, at which time she reported that she was
moving back to Connecticut following the loss of her son.
Stipulation at *15. On that visit, Dr. Tamim recorded a
“Pain Score” of 8, marked “HIGH.” R.
has a Bachelor's degree in psychology and an extensive
work history in social work and human services. R. 97. At the
hearing conducted by the ALJ, a vocational expert testified
that plaintiff had worked in the following occupations:
family care worker or case worker (sedentary, skilled);
program director or volunteer services supervisor (light,
skilled); child development center director (sedentary,
skilled); case manager (light, skilled); home health aid
(medium, semi-skilled); patient transporter (medium,
unskilled); and dispatcher (sedentary, skilled).
hearing, plaintiff testified that she was currently working
as a home health aid four or five days a week. R. 97. She was
working either two or four hours a day. R. 96 (“I only
work sometimes. I would work four hours a day, nine - at
$9.”), R. 97 (“I have to work two hours a
day.”). Plaintiff described the work in terms of her
duties to clients: she had to “dress them, shave them,
go to the store for them . . . ma[k]e sure they had their
medicine. . . . [and] clean their homes.” R. 92. She
made clients' beds daily, R. 105, and bathed them, R. 92,
but could not lift them, R. 105. The work left her “in
excruciating pain at night.” R. 106.
The ALJ Decision
concluded that plaintiff was insured for purposes of Title II
of the Social Security Act through September 30, 2019. R. 67.
Attempting to parse plaintiff's employment record, the
ALJ gave her “the benefit of the doubt.” R. 68.
Thus, although the ALJ found that plaintiff was engaged in
substantial gainful activity in the third quarter of 2012,
the third quarter of 2013, and the second, third, and fourth
quarters of 2014, the ALJ nonetheless concluded that there
was a continuous 12-month period in which plaintiff did not
engage in substantial gainful activity. R. 68.
concluded that plaintiff suffered from “severe
impairments” of degenerative disc disease and breast
cancer grade II, and non-severe impairments of
“hypertension, diabetes mellitus, glaucoma,
osteoporosis, [and] history of reconstructive hip
surgery.” R.68. The ALJ also found that plaintiff's
reported depression was “secondary” to the breast
cancer diagnosis, and not a “medically determinable
mental impairment.” R. 69. The ALJ concluded that none
of plaintiff's impairments, nor any combination of them,
met or equaled in severity a “Listed Impairment”
that would entitle her to a per se finding of
disability. R. 69-70.
whether plaintiff was disabled, the ALJ wrote:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) and 416.967(b) except the claimant is able to
lift and carry up to 20 pounds occasionally and 10 pounds
frequently; she is able to stand and walk four hours, and sit
six hours, in an eight-hour workday with normal breaks; she
is able to occasionally climb ramps and stairs but should
never climb ladders, ropes, or scaffolds; she is able to
occasionally balance, stoop, kneel, crouch, and crawl; she is
able to occasionally operate left foot controls; she is able
to frequently reach overhead with the right arm; and she
requires the use of a cane to ambulate to and from the
workstation and traverse uneven surfaces; and she will be off
task up to, but not more than, 10 percent due to pain.
further concluded that plaintiff was “capable of
performing past relevant work as a case manager . . . case
worker . . . program director of volunteer service . . .
child development center director . . . and
dispatcher.” R. 74. Given this conclusion, plaintiff
could not be considered disabled within the meaning of the
Act and her application for benefits was therefore denied. R.
the Social Security Act, a person is disabled if she is
unable “to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The Act is a “remedial statute, to be
broadly construed and liberally applied.” Gold v.
Sec'y of Health, Educ. & Welfare, 463 F.2d 38,
41 (2d Cir. 1972) (quoting Haberman v. Finch, 418
F.2d 664, 667 (2d Cir. 1969)).
disability determination under the Act proceeds in five
steps. First, the Commissioner considers whether the claimant
is currently engaged in substantial gainful activity. If not,
the Commissioner determines whether the claimant has a
“severe medically determinable physical or mental
impairment” that limits the claimant's ability to
do basic work activities. If so, the Commissioner asks
whether the impairment meets, or equals in severity, a
so-called “listed impairment, ” contained in
Appendix 1 to Subpart P of 20 C.F.R. § 404. If so,
provided the claimant meets the Appendix's durational
requirements, the Commissioner will find that the claimant is
disabled. If not, the Commissioner determines whether,
despite the impairment, the claimant retains the
“residual functional capacity”
(“RFC”) to perform his or her past work. Finally,
if the claimant does not have the RFC to perform his or her
past work, the Commissioner determines whether there is other
work in the national economy that the claimant is capable of
performing. Until the final step, the claimant bears
the burden of proof, but if the analysis reaches the fifth
stage, the burden shifts to the Commissioner. McIntyre v.
Colvin, 758 F.3d 146, 150 (2d Cir. 2014).
reviewing a final decision of the Commissioner, a district
court “perform[s] an appellate function.”
Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir.
1981). The court's role is limited to determining (1)
whether the decision comports with applicable law and (2)
whether it is supported by substantial evidence. Johnson
v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). If a
decision is free of legal error, the findings of the
Commissioner as to any fact, “if supported by
substantial evidence, [are] conclusive.” 42 U.S.C.
§ 405(g). The findings must be supported by “more
than a mere scintilla or a touch of proof here and there in
the record, ” but require only “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) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)).
moves to reverse the Commissioner's decision on the
grounds that (1) her waiver of the right to representation
was not knowingly and intelligently made; (2) the ALJ failed
to develop the administrative record; (3) her claims of pain
were inadequately evaluated; and (4) the ALJ's vocational
analysis is flawed. I agree that plaintiff did not knowingly
and intelligently waive her right to counsel and that
prejudice resulted from her lack of representation. Wholly
apart from the waiver issue, I conclude that a remand is
necessary primarily because the ALJ did not fully develop the
record as to the severity and impact of plaintiff's
chronic pain and glaucoma, which may well limit her ability
to perform her past work.
Waiver of Right to Representation
a claimant does not have a constitutional right to counsel at
a social security disability hearing, she does have a
statutory and regulatory right to be represented should she
choose to obtain counsel.” Lamay v. Comm'r of
Social Sec., 562 F.3d 503, 507 (2d Cir. 2009) (citing 42
U.S.C. § 406; 20 C.F.R. § 404.1705). The statute
and regulations require the Commissioner to “notify the
claimant in writing of (1) her options for obtaining an
attorney to represent her at her hearing, and (2) the
availability . . . of . . . organizations which provide legal
services free of charge to qualifying claimants.”
Id. (internal quotations and alterations omitted).
The ALJ must also ensure at the hearing that the claimant is
aware of her right to representation. Id. (quoting
Robinson v. Sec'y of Health & Human Servs.,
733 F.2d 255, 257 (2d Cir. 1984)). The right to
representation is subject to waiver. Id.
the law of this Circuit requires the Commissioner to inform a
claimant of the right to be represented by a lawyer.
Lamay, for instance, speaks of the claimant's
right to representation by “counsel” and
indicates that the Act and regulations require notification
of options “for obtaining an attorney” as well as
the availability of organizations providing “legal
services.” Id.; see also Robinson,
733 F.2d at 257 (“The claimant is entitled to be
represented by counsel at the hearing and the ALJ
must ensure that the claimant is aware of this
right.”) (emphasis added). Accordingly, in this
Circuit, notifications that inform claimants of the right to
“representation” or to a
“representative” without making clear that the
representative can be a lawyer are deemed inadequate.
E.g., Petrovich v. Colvin, No.
3:15-cv-00575 (AVC), ECF No. 27, at *50 (D. Conn. Aug. 14,
2017); Sheerinzada v. Colvin, 4 F.Supp.3d 481,
495-96 (E.D.N.Y. 2014); Holliday v. Astrue, No.
05-cv-1826(DLI)(VVP), 2009 WL 1292707, at *10-*11 (E.D.N.Y.
May 5, 2009).
filing her initial request for a hearing before an ALJ,
plaintiff received a letter from the Office of Disability
Adjudication and Review in New Haven. The letter mentioned a
“Right to Representation” but did not mention a
right to legal counsel. R. 180. The letter was accompanied by
a pamphlet titled “Your Right to Representation,
” R. 183-84, which did explain the right to
representation by a lawyer. The letter also contained an
“Important Notice About Representation, ” which
included contact information for the National Organization of
Social Security Claimant Representatives and a variety of
legal aid organizations in Connecticut (and, for reasons that
are not clear, Ohio). R. 185-88.
subsequently received a written reminder about her hearing,
which stated she could seek “help” from a
“representative” without mentioning the
possibility the representative could be a lawyer. R. 194.
This correspondence also contained the same pamphlet
referencing the right to representation by counsel. R.
198-99. It did not contain contact information for any
lawyers or legal services organizations.
August 15, 2014, the Covington, Georgia Office of Disability
Adjudication and Review acknowledged the transfer of
plaintiff's claim. R. 210. The Covington office sent
plaintiff a letter like the one sent to her initially, which
did not mention the right to a lawyer. Compare R.
180 with R. 211. As before, this letter ...