Rodriguez v. Colvin
Filing
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ORDER granting 9 plaintiff's motion to reverse the decision of the Commissioner and denying 12 defendant's motion to affirm the decision of the Commissioner. See attached ruling. Signed by Judge Donna F. Martinez on 5/25/16. (Brierley, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RUBEN RODRIGUEZ,
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Plaintiff,
v.
CAROLYN W. COLVIN
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
CASE NO.3:13CV1195(DFM)
RULING ON PENDING MOTIONS
Plaintiff, Ruben Rodriguez, seeks judicial review of the
final decision of the Commissioner of Social Security (the
“Commissioner”) denying his application for disability insurance
benefits (“DIB”).1
Administrative Law Judge (“ALJ”) James Kearns
held a hearing on May 9, 2011, and determined that plaintiff was
not disabled within the meaning of the Social Security Act.2 (R.
1Plaintiff
filed an application for DIB on September 27,
2010, alleging an onset date of July 25, 2010. (R. 152-53.) His
application was denied initially and upon reconsideration. (R.
63-93.)
2The ALJ found at step one that plaintiff had no substantial
gainful employment since his alleged onset date. (R. 12.) At
step two, the ALJ found that plaintiff has the following severe
impairments: sleep apnea, obesity, and a heart condition
(cardiomyopathy, congestive heart failure, arrhythmias). (R.
13.) He found at step three that plaintiff’s conditions did not
meet or medically equal a listed impairment. (R. 14.) The ALJ
determined that plaintiff retained the residual functional
capacity (“RFC”) “to perform sedentary work . . . except that he
must avoid concentrated exposure to extreme heat and cold,
wetness, humidity, fumes, odors, dust, gasses, poor ventilation
and hazards, such as machinery and heights. In addition the
claimant is limited to the performance of simple and routine
tasks.” (R. 14.) At step four, the ALJ determined that
1
10-20.)
Plaintiff timely appealed to this court.
Currently pending are plaintiff’s motion to reverse the
decision of the Commissioner (doc. #9) and defendant’s motion to
affirm the decision of the Commissioner. (Doc. #12.)
On
November 9, 2015, pursuant to the court’s scheduling order,
counsel filed a joint stipulation of facts and medical
chronology, which I incorporate by reference. (Doc. #14.)
heard argument on May 24, 2016.
I
For the following reasons,
plaintiff’s motion is GRANTED and defendant’s motion is DENIED.3
I.
Legal Standard
The standards for determining an individual’s entitlement
to DIB, the Commissioner’s five-step framework for evaluating
claims, and the district court’s review of the final decision of
the Commissioner are well-settled.
I am following those
standards, but do not repeat them here.
II.
Discussion
Plaintiff argues that the ALJ “cherry picked” the medical
source opinions that supported his residual functional capacity
plaintiff is unable to perform his past relevant work. (R. 18.)
At step five, considering plaintiff’s age, education, work
experience, and RFC, the ALJ found that jobs exist in
significant numbers in the national economy that plaintiff can
perform. (R. 19.) Plaintiff appealed the ALJ’s decision to the
Appeals Council, which denied his request for review on June 27,
2013. (R. 1-3.)
3This is not a recommended ruling.
On January 6, 2016, the
parties consented to the jurisdiction of the undersigned
magistrate judge. (Doc. #17.) See 28 U.S.C. § 636(c);
Fed.R.Civ.P. 73(b).
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(“RFC”) determination and ignored those that detracted from it
and thus, his decision is not supported by substantial evidence.
I agree.
The term “cherry picking” generally refers to “improperly
crediting evidence that supports findings while ignoring
conflicting evidence from the same source . . . .
The
fundamental deficiency involved with ‘cherry picking’ is that it
suggests a serious misreading of evidence, or failure to comply
with the requirement that all evidence be taken into account, or
both . . . .”
Dowling v. Comm’r of Soc. Sec., No. 5:14-CV-0786
(GTS)(ESH), 2015 WL 5512408, at *11 (N.D.N.Y. Sept. 15, 2015)
(citations omitted).
Here, the ALJ assigned different levels of weight to the
several opinions of plaintiff’s treating cardiologist, Dr.
Steven Horowitz.
He credited Dr. Horowitz’s August, September,
and November 2010 opinions that plaintiff could return to work
as long as he did not perform extensive manual labor (R. 391,
395, 427), but gave only “partial weight” to Dr. Horowitz’s more
recent October 2011 assessment of greater limitations. (R. 95861.)
In his October 2011 report, Dr. Horowitz indicated that
plaintiff would be off task 25% of the day; would be absent from
work four days a month; and would need to elevate his legs 80%
of the time while seated. (R. 958-61.)
In dismissing these
opinions, the ALJ state merely that “[t]he medical evidence of
3
record provides some support for the opinion, but some of the
findings are not supported.” (R. 18.)
The only additional
explanation the ALJ gave for this assignment of weight was that
plaintiff did “not mention in any of his disability reports or
in his testimony that he elevates his legs while at home.” (R.
18.)
The record is replete with evidence that supports Dr.
Horowitz’s assessment.
Plaintiff testified that at work, he has
anxiety, panic attacks, and irritability that contribute to
being off-task. (R. 53-54.)
Dr. Horowitz’s treatment notes
starting in March 2011 repeatedly indicate that plaintiff is
unable to work more than three or four hours a day due to severe
fatigue. (R. 606-09, 917-20, 947-50, 952-56, 964-68.)
The
evidence also supports Dr. Horowitz’s opinion that plaintiff
would miss more than four days of work a month.
Plaintiff
testified that in his current part-time job,4 at which he works
four hours a day, three to five days a week, he misses a
scheduled shift once or twice a week. (R. 51.)
Plaintiff’s
absence report reveals that from July 1, 2011 to December 31,
4The
ALJ found that plaintiff’s current part-time work does
not rise to the level of substantial gainful activity that would
preclude a finding of disability. (R. 12.) Substantial gainful
activity is “work activity that is both substantial and
gainful.” 20 C.F.R. § 404.1572. Work activity is “substantial”
if it “involves doing significant physical or mental
activities,” and is “gainful” if it is “the kind of work usually
done for pay or profit . . . whether or not a profit is
realized.” Id.
4
2011, he missed 35 days of work, ranging from three to ten days
a month. (R. 291-92.)
evidence.
The ALJ’s decision is silent as to this
This cherry picking is especially troubling in light
of the vocational expert’s testimony that were plaintiff to miss
one day of work a week, it would eliminate all employment. (R.
61.)
“It is grounds for remand for the ALJ to ignore parts of
the record that are probative of the claimant’s disability
claim.”
Sutherland v. Barnhart, 322 F. Supp. 2d 282, 289
(E.D.N.Y. 2004); see also Raymer v. Colvin, No. 14-CV-6009P,
2015 WL 5032669, at *6 (W.D.N.Y. Aug. 25, 2015) (“Remand is
especially appropriate where, as here, the ALJ gave
[physician’s] opinion ‘considerable weight,’ but failed to
provide an explanation for not incorporating into the RFC some
of the limitations identified in that opinion--particularly
those that would lead to a finding of disability.”); Ardito v.
Barnhart, No. 3:04-CV-1633(MRK), 2006 WL 1662890, at *5 (D.
Conn. May 25, 2006) (ALJ erred when he “cherry-picked out of the
record those aspects of the physicians’ reports that favored his
preferred conclusion and ignored all unfavorable aspects,
without explaining his choices, let alone basing them on
evidence in the record.”).
In light of the foregoing, I need
not reach the merits of plaintiff’s remaining arguments.
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III. Conclusion
For the foregoing reasons, plaintiff’s motion (doc. #9) is
GRANTED and defendant’s motion (doc. #12) is DENIED.
This is not a recommended ruling.
The consent of the
parties allows this magistrate judge to direct the entry of a
judgment of the district court in accordance with the Federal
Rules of Civil Procedure.
Appeals can be made directly to the
appropriate United States Court of Appeals from this judgment.
See 28 U.S.C. § 636(c)(3); Fed.R.Civ.P. 73(c).
SO ORDERED at Hartford, Connecticut this 25th day of May,
2016.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge
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