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Dawn Perrin v. Michael J. Astrue

September 27, 2012


The opinion of the court was delivered by: Block, Senior District Judge:


Plaintiff Dawn Perrin seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for benefits under the Social Security Act. Both parties move for judgment on the pleadings. For the reasons set forth below, the case is remanded for further proceedings.


Perrin claims that she suffers from a seizure disorder and bipolar disorder, which interfere with her memory and concentration, cause her to become confused and disoriented, and can lead to inappropriate behavior. Perrin filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on January 19, 2010.

After the Social Security Administration denied her applications, she requested a hearing before an Administrative Law Judge ("ALJ").

On May 6, 2011, the ALJ concluded that Perrin was not disabled. AR at 24. Applying the familiar five-step process, the ALJ found that: (1) Perrin had not engaged in substantial gainful activity since November 30, 2009, the alleged onset date; (2) her seizure disorder and bipolar disorder were "severe impairments"; (3) her impairments did not meet the criteria listed in 20 CFR Part 404, Subpart P, Appendix 1; and (4) Perrin was "capable of performing past relevant work as a data entry clerk." AR at 14, 23.*fn1 This final conclusion was based on the ALJ's finding that Perrin "has the residual functional capacity to perform a full range of work at all exertional levels but with non-exertional limitations limiting the claimant to simple, routine, repetitive work with limited public contact and preclusion from driving an automobile or using machinery due to her seizures." AR at 16.

The Appeals Council denied Perrin's request for review, rendering the Commissioner's decision to deny benefits final. Perrin timely sought judicial review.


"In reviewing the final decision of the Commissioner, a district court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Perrin argues that the ALJ erred by (1) violating the treating physician rule, (2) making an unsupported credibility determination, and (3) relying on flawed testimony from the vocational expert. The Court concludes that the ALJ did not provide valid reasons for discounting the treating physician's opinion or discrediting Perrin's subjective complaints. These two rulings require remand and further consideration of Perrin's residual functional capacity. Regarding Perrin's third claim, the Court cannot resolve at this time whether the vocational expert's testimony was appropriate. A vocational expert's opinion is reliable only when it is based on an appropriate residual functional capacity. Because the flaws in the ALJ's analysis and the gaps in the record make it impossible for this Court to determine Perrin's residual functional capacity, it is also not possible to determine whether the vocational expert's opinion is appropriate.

A. The Treating Physician Rule

Perrin first argues that the ALJ erred by refusing to give controlling weight to the opinion of Dr. Isakov, the psychiatrist who treated her on a monthly basis from 2005 to 2010. The record contains numerous notes and assessments from Dr. Isakov. AR at 237-59, 318-27. He diagnosed Perrin with bipolar disorder, seizure disorder, and amnesic disorder; prescribed Depakote; and noted her confusion, memory lapses, and difficulty focusing. He cleared Perrin to return to work in April 2009 after a one-week medical leave, AR at 246, but opined in a November 2010 Psychiatric/Psychological Impairment Questionnaire that her conditions were chronic and rendered her unable to work, AR at 320. He indicated his clinical findings on a checklist and described Perrin's primary symptoms in his own words as "mood swings, periods of inappropriate behavior, inability to focus [or] concentrate, [and] very confused or disoriented at times." AR at 321-22. On another checklist, Dr. Isakov found Perrin markedly limited in thirteen mental activities and moderately limited in seven. AR at 323-25. Her marked limitations included her ability to remember locations and procedures, to understand detailed instructions, to carry out simple instructions, and to maintain attention and concentration. AR at 323-24. He opined that her impairments would cause her to miss work frequently and that she is incapable of even low-stress work. AR at 326-27.

Under the treating physician rule, "the opinion of a claimant's treating physician as to the nature or severity of the impairment is given 'controlling weight' so long as it 'is well-supported by medically acceptable clinical and laboratory or 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) (quoting 20 C.F.R. § 404.1527 (d)(2)). The ALJ "draws its own conclusions as to whether those data indicate disability," but the ALJ must consider the physician's "ultimate finding of whether a claimant is disabled and cannot work." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). "Failure to provide 'good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand." Id.

The ALJ gave "appropriate weight" to some of Dr. Isakov's findings but "lesser weight" to his functional assessment. AR at 22. Instead of relying on the requisite factors, see 20 C.F.R. §§ 404.1527(d), 416.927(d), the ALJ viewed the assessment as the "only vocationally relevant evidence" provided by Perrin and asserted that he could "reject check-off form assessments that do [not] contain explanations of the bases of their conclusions." AR at 22. The ALJ then stated:

The expert testimony and the clinical picture suggest some improvement with Depakote. While the seizures have not been eliminated, dosage adjustment may accomplish this goal and the claimant's clinical picture could become clearer after a neuropsychological consult. Accordingly, Dr. Isakov's material is based upon an incomplete record. There is no seizure disorder specialist who provides any evidence of specificity as to that component of the claimant's claim related to seizures, and the ...

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