United States District Court, D. Connecticut
RULING ON THE PLAINTIFF'S MOTION TO REVERSE THE
DECISION OF THE COMMISSIONER AND ON THE DEFENDANT'S
MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
M. SPECTOR, UNITED STATES MAGISTRATE JUDGE
action, filed under § 205(g) of the Social Security Act,
42 U.S.C. § 405(g), seeks review of a final decision by
the Commissioner of Social Security [“SSA” or
“the Commissioner”] denying the plaintiff
disability insurance benefits [“DIB”].
plaintiff filed her application for DIB on February 4, 2015,
claiming that she has been disabled since January 26, 2015,
due to major depressive disorder, anxiety, asthma, sleep
apnea and chronic neck, back and shoulder pain. (Certified
Transcript of Administrative Proceedings, dated January 11,
2019 [“Tr.”] 89-99, 195-198). The
plaintiff's application was denied initially (Tr. 89-99),
and upon reconsideration. (Tr. 101-115). On March 28, 2016,
the plaintiff requested a hearing before an Administrative
Law Judge [“ALJ”] (Tr. 131-132), and on October
3, 2017, a hearing was held in Hartford, Connecticut before
ALJ Alexander P. Borré, at which the plaintiff and a
vocational expert testified. (Tr. 45-74). The ALJ
subsequently issued an unfavorable decision on December 6,
2017, denying the plaintiff's claims for benefits. (Tr.
25-44). The plaintiff appealed to the Appeals Council, which,
on November 19, 2018, denied the plaintiff's request for
review, rendering the ALJ's decision the final decision
of the Commissioner. (Tr. 1-5).
November 26, 2018, the plaintiff filed her complaint in this
pending action (Doc. No. 1). The parties consented to the
jurisdiction of a United States Magistrate Judge on November
28, 2018, and this case was transferred to the undersigned.
(Doc. No. 9). On February 11, 2019, the defendant filed his
answer and administrative transcript, dated January 11, 2019.
(Doc. No. 11). On April 5, 2019, the plaintiff filed her
Motion to Reverse the Decision of the Commissioner (Doc. No.
13), with a Statement of Facts (Doc. No. 13-1), and brief in
support (Doc. No. 13-2 [“Pl.'s
Mem.”). On July 15, 2019, the defendant filed his
Motion to Affirm (Doc. No. 17), with a Statement of Material
Facts (Doc. No. 17-2), and brief in support. (Doc. No. 17-1).
reasons stated below, the plaintiff's Motion to Reverse
the Decision of the Commissioner (Doc. No. 13) is GRANTED,
and the defendant's Motion to Affirm the Decision of the
Commission (Doc. No. 17) is DENIED.
Court presumes the parties' familiarity with the
plaintiff's medical history, which is discussed in the
plaintiff's Statement of Facts (Doc. No. 13-1) and the
defendant's Statement of Material Facts. (Doc. No. 17-2).
Though the Court has reviewed the entirety of the medical
record, it cites only the portions of the record that are
necessary to explain this decision.
plaintiff's October 3, 2017 hearing, the plaintiff was
fifty-eight years old (Tr. 49), and during the relevant
period at issue, she lived with her adult son and a roommate
in a house in Meriden, Connecticut. (Tr. 49-51). She
graduated high school but did not complete any additional
education or vocational training. (Tr. 52).
1977 to 2009, the plaintiff worked for Blue Cross Blue Shield
in enrollment and billing. (Tr. 52-53). In 2011, she was
employed as the office manager for Comprehensive Orthopedics.
(Tr. 53-54). In 2014, she worked at the Middletown DSS office
(a job she obtained through the staffing agency Hallmark
Total Tech) in a “filing position.” (Tr. 54). The
plaintiff testified that she had problems completing her
tasks at the Middletown DSS office because it involved
“so much up and down and pulling out files” and
hurt her back and neck. (Tr. 55). She would “go in
[her] car [and] turn on [her] heated seat to be a heating
pad.” (Id.). She had to carry a 10-pound file
box for that position. (Id.). She testified that,
although she did not leave that job because of her back and
neck problems, she could not have kept doing it. (Tr. 56).
plaintiff also testified that she was able to drive but did
not “drive far.” (Tr. 51). She explained that she
could drive for approximately 45 minutes before her lower
back began to hurt. (Tr. 52). She tried to walk “every
day just a little.” She explained that she was able to
walk the length of eight houses and back, and that it took
her less than ten minutes to do so, but she needed to rest
afterwards. (Tr. 59-60). She noted that she needed to
“to walk on level ground.” (Tr. 59). The
plaintiff estimated that she could lift twelve pounds, an
estimate based on the fact that she was able to pick up her
lighter grandchildren. (Tr. 60). Additionally, the
plaintiff's ability to concentrate and focus
“changed drastically.” (Tr. 61). She had
“lists for everything” to “try to keep on
top of things.” (Id.). She did not like going
out in crowds, and she would order groceries online because
it was “hard for [her] to grocery shop.” (Tr.
62). She testified that she completed one chore a day and
“focus[ed] on setting [her] alarm [for] 9:00.”
(Tr. 63). She did, however, “try to go out to dinner
once a month” and sometimes watched her grandkids. (Tr.
64). She had panic attacks once every four months and issues
with her sons triggered her anxiety. (Tr. 67).
vocational expert testified that the plaintiff's past
work as an office manager and enrollment clerk were both
semi-skilled jobs performed at the sedentary level. (Tr. 70).
The plaintiff's past work as a file clerk was a
semi-skilled job performed at the light exertional level.
(Id.). All three of the plaintiff's past jobs
could be performed by a person limited to the light
exertional level who could frequently climb ladders, ropes,
and scaffolds, stoop, kneel, crouch, and crawl, and who was
further limited to only occasional exposure to temperature
extremes and extreme humidity and no concentrated exposure to
fumes, dust, or gases. (Id.). If such a person was
further limited to simple and repetitive tasks, those
additional limitations would “eliminate” the
plaintiff's past three jobs. (Tr. 71). Similarly,
according to the vocational expert, if such a person were
“off-task 15 percent of the workday due to symptoms of
either back pain or anxiety-type symptoms [that] would cause
that individual to leave the work area, ” such a person
would not be employable at “any exertional
THE ALJ'S DECISION
the five-step evaluation process,  the ALJ found that the
plaintiff met the insured status requirements through
December 31, 2018, (Tr. 30), and that the plaintiff had not
engaged in substantial gainful activity since January 26,
2015, her alleged onset date. (Tr. 31, citing 20 C.F.R.
§ 404.1571 et seq.).
two, the ALJ concluded that the plaintiff had the severe
impairments of cervical spine and lumbar spine degenerative
disc disease and asthma, (Tr. 31, citing 20 C.F.R. §
404.1520(c)), but that the plaintiff did not have an
impairment or combination of impairments that met or
medically equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 32-33, citing 20
C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).
Specifically, the ALJ concluded that the plaintiff's
spinal conditions did not meet Listing 1.04 (Disorders of the
Spine), and that the plaintiff's asthma did not meet
Listing 3.02 (Chronic Respiratory Disorders) or Listing 3.03
(Asthma). (Tr. 32-33). The ALJ also found that the
plaintiff's mental impairments, as well as the
plaintiff's obstructive sleep apnea, were non-severe.
three, the ALJ found that, “[a]fter careful
consideration of the entire record, ” the plaintiff had
the residual functional capacity [“RFC”] to
perform light work, as defined in 20 C.F.R. §
404.1567(b), except she could frequently climb ramps and
stairs and occasionally climb ladders, ropes, and scaffolds.
(Tr. 33). The ALJ stated that the plaintiff could
occasionally stoop, kneel, crouch, and crawl; she could
occasionally be exposed to temperature extremes and extreme
humidity; and, she could have no concentrated exposure to
dust, gases, or fumes. (Id.).
concluded that the plaintiff was capable of performing her
past relevant work as a clerk, secretary, and file clerk.
(Tr. 38, citing 20 C.F.R. § 404.1565). Accordingly, the
ALJ found that the plaintiff was not under a disability at
any time from January 26, 2015, the alleged onset date,
through December 6, 2017, the date of the ALJ's decision.
STANDARD OF REVIEW
scope of review of a Social Security disability determination
involves two levels of inquiry. First, the court must decide
whether the Commissioner applied the correct legal principles
in making the determination. Second, the court must decide
whether the determination is supported by substantial
evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d
Cir. 1998) (citation omitted). The court may “set aside
the Commissioner's determination that a claimant is not
disabled only if the factual findings are not supported by
substantial evidence or if the decision is based on legal
error.” Burgess v. Astrue, 537 F.3d 117, 127
(2d Cir. 2008) (internal quotation marks & citation
omitted); see also 42 U.S.C. § 405(g).
Substantial evidence is evidence that a reasonable mind would
accept as adequate to support a conclusion; it is more than a
“mere scintilla.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (citation omitted); see Yancey
v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998) (citation
omitted). “The substantial evidence rule also applies
to inferences and conclusions that are drawn from findings of
fact.” Gonzalez v. Apfel, 23 F.Supp.2d 179,
189 (D. Conn. 1998) (citing Rodriguez v. Califano,
431 F.Supp. 421, 423 (S.D.N.Y. 1977)). However, the court may
not decide facts, reweigh evidence, or substitute its
judgment for that of the Commissioner. See Dotson v.
Shalala, 1 F.3d 571, 577 (7th Cir. 1993) (citation
omitted). Instead, the court must scrutinize the entire
record to determine the reasonableness of the ALJ's
factual findings. See Id. Further, the
Commissioner's findings are conclusive if supported by
substantial evidence and should be upheld even in those cases
where the reviewing court might have found otherwise.
See 42 U.S.C. § 405(g); see also Beauvoir
v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997) (citation
omitted); Eastman v. Barnhart, 241 F.Supp.2d 160,
168 (D. Conn. 2003).
plaintiff contends that the ALJ erred in five respects.
First, the plaintiff argues that the ALJ failed to develop
the record by not contacting Drs. Lorenzo Galante, Alessandra
Buonopane, and/or the treating clinicians at Perspective
Center for Care [“PCC”] to obtain medical source
statements, and, in the case of PCC, treatment notes and
records. (Pl.'s Mem. at 1-9). Second, the plaintiff
argues that the ALJ was not properly appointed and thus
lacked authority to hear and decide the plaintiff's
claim. (Id. at 9-12). Third, the plaintiff argues
that the ALJ erred at step four, in that the RFC
determination was not supported by substantial evidence.
(Id. at 13-18). Fourth, the plaintiff argues that
the ALJ failed to assess properly the plaintiff's
complaints of pain. (Id. at 18-20). Lastly, the
plaintiff argues that the ALJ “[m]isconstrued the
[e]vidence.” (Id. at 20-24).
an ALJ has satisfied his obligation to develop the record
“must be addressed as a threshold issue.”
Downes v. Colvin, No. 14-CV-7147 (JLC), 2015 WL
4481088, at *12 (S.D.N.Y. July 22, 2015). “Even if the
ALJ's decision might otherwise be supported by
substantial evidence, the Court cannot reach this conclusion
where the decision was based on an incomplete record.”
Moreau v. Berryhill, No. 17-CV-396 (JCH), 2018 WL
1316197, at *4 (D. Conn. Mar. 14, 2018). Upon a thorough
review of the administrative record, the Court concludes that
the ALJ failed to adequately develop the record to include
treating physician opinions as to the plaintiff's
physical and mental functional limitations, as well as the
plaintiff's treatment records from PCC. See Rosa
v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999) (holding
that an ALJ's failure to “fulfill his affirmative
obligation to develop the administrative record”
constitutes legal error).
THE ALJ DID NOT SATISFY HIS DUTY TO DEVELOP THE RECORD AS
TO THE ...