Cortes v. Colvin

Filing 27

RULING granting 21 Motion to Reverse the Decision of the Commissioner; denying 26 Motion to Affirm the Decision of the Commissioner. The case is remanded to the ALJ for proceedings consistent with this Ruling. Signed by Judge Janet C. Hall on 3/19/2018. (Anastasio, F.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARYBEL CORTES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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CIVIL ACTION NO.
3:16–cv–01910 (JCH)

MARCH 19, 2018

RULING RE: MOTION TO REVERSE THE DECISION OF THE COMMISSIONER
(DOC. NO. 21) & MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
(DOC. NO. 26)
I.

INTRODUCTION
Plaintiff Marybel Cortes (“Cortes”) brings this appeal under section 405(g) of title

42 of the United States Code from the final decision of the Commissioner of the Social
Security Administration (“SSA”), which denied her application for Title II disability
insurance benefits and Title XVI supplemental security income. See Complaint
(“Compl.”) (Doc. No. 1). Cortes seeks either reversal or remand of the Decision
rendered by Administrative Law Judge (“ALJ”) Richard A. DiBiccaro, which affirmed the
Commissioner’s denial. See Motion to Reverse the Decision of the Commissioner
(“Mot. to Reverse”) (Doc. No. 21). The Commissioner cross-moves for an order
affirming that Decision. See Motion to Affirm the Decision of the Commissioner (“Mot.
to Affirm”) (Doc. No. 26).
For the reasons set forth below, the Motion for Order to Reverse Final Decision
of Commissioner is GRANTED. The Motion for Order Affirming the Commissioner’s
Decision is DENIED.

1

II.

PROCEDURAL HISTORY1
Cortes applied for disability and supplemental security income benefits on April 4,

2008, alleging a disability onset date of January 31, 2006. See Mem. in Supp. of Mot.
to Reverse the Decision of the Comm’r (“Pl.’s Mem.”) (Doc. No. 21-1) at 1. The
Commissioner denied Cortes’s application initially and upon reconsideration. See id.
Cortes requested a hearing with an ALJ, which was held before ALJ DiBiccaro on
March 1, 2010. See id. On September 24, 2010, ALJ DiBiccaro issued an unfavorable
decision for Cortes, affirming the Commissioner’s denial and finding that Cortes was not
disabled. See id. Cortes requested review by the Appeals Court, which denied the
request. See id. After appeal to this court, the Commissioner moved to voluntarily
remand the case under sentence four of section 405(g) of title 42 of the United States
Code and judgment entered in Cortes’s favor on September 19, 2012. See id.
Cortes filed subsequent Title II and XVI claims on April 20, 2011, and April 29,
2013, which the Appeals Council consolidated with her earlier claims. See R. at 524. A
hearing was held before ALJ DiBiccaro on March 18, 2015, followed by a supplemental
hearing on June 29, 2015. See Pl.’s Mem. at 1. On October 29, 2015, ALJ DiBiccaro
issued a second unfavorable decision. See id. By notice dated September 20, 2016,
the Appeals Council refused to take jurisdiction, making ALJ DiBiccaro’s October 29,
2015 decision a final decision reviewable by this court. See id. at 1–2. Cortes filed this
appeal on November 18, 2016. See Compl.

1 The procedural history set forth herein is derived from Cortes’s Memorandum in Support of
Motion to Reverse the Decision of the Commissioner (“Pl.’s Mem.”) (Doc. No. 21-1), which the
Commissioner adopted “except for any arguments or conclusions contained therein.” See Def.’s Mem. in
Supp. of Her Mot. for an Order Affirming the Comm’r’s Decision (“Def.’s Mem.”) (Doc. No. 26-1) at 1.

2

III.

FACTS2
Marybel Cortes was born in 1967, making her 50 at the time of this Ruling. See

R. at 75. The Record in this case begins in 2002, when Cortes sought treatment at Fair
Haven Community Health Center (“Fair Haven”) for relief from her asthma, back pain,
and bilateral carpal tunnel syndrome (“CTS”). See Pl.’s Mem. at 2. In 2003 and 2004,
Cortes continued attending appointments and received prescriptions for medication to
help with her depression and anemia, along with her other conditions. See id. at 3.
After Cortes’s alleged onset date in 2006, the Record reflects a visit to Fair Haven for
treatment for her asthma, followed by a two year gap in the Record during which she
lived in Puerto Rico. See id. at 4.
Cortes’s next recorded treatment involved a visit to Community Health Services /
Meriden Medical (“CHS”) in 2008, where she complained of depression and anemia.
See id. Cortes continued her treatment for severe anemia due to menorrhagia and
asthma and also began seeing a psychiatrist at CHS, who diagnosed her with major
depression, post-traumatic stress disorder (“PTSD”), and obsessive-compulsive
disorder (“OCD”). See id. at 5–6. Physicians recommended surgery to address
Cortes’s menorrhagia, but decided to wait for improvements in her asthma and sleep
apnea. See id. at 14. Cortes finally had a hysterectomy in November 2012. See id. at
16.

2 Although the court’s Scheduling Order required that the parties make a “good faith attempt to
stipulate to the facts” (Doc. No. 17), the parties did not file a stipulation of facts. The Commissioner
adopted the facts as set forth in Cortes’s brief, “except for any arguments or conclusions contained
therein, and as further elaborated in the argument below.” Def.’s Mem. at 2. The court will rely on the
medical chronology in Cortes’s brief as if stipulated.

3

Cortes has struggled with cocaine use, along with abuse of prescription drugs
such as Xanax. See id. at 12, 19. In November 2014, Cortes was hospitalized at
Stonington Institute for addiction to crack cocaine, where she also admitted to being
addicted to pain medication. See id. at 19. Cortes has attempted suicide four times.
See id. at 19.
IV.

STANDARD OF REVIEW
Under section 405(g) of title 42 of the United States Code, it is not a function of

the district court to review de novo the ALJ’s decision as to whether the claimant was
disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Instead, the court
may only set aside an ALJ’s determination as to social security disability if the decision
“is based upon legal error or is not supported by substantial evidence.” Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence requires “more than a
mere scintilla,” but is a “very deferential standard of review.” Brault v. Soc. Sec. Admin.,
Comm’r, 683 F.3d 443, 447–48 (2d Cir. 2012). It requires “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. at 448. If the
Commissioner’s findings of fact are supported by substantial evidence, those findings
are conclusive, and the court will not substitute its judgment for the Commissioner’s. 42
U.S.C. § 405(g) (2016); see also Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998).
V.

DISCUSSION
Cortes argues that ALJ DiBicarro’s Decision should be reversed or remanded for

four reasons. First, she argues that the ALJ erred when he did not give controlling
weight to the 2009 or 2011 opinions of Cortes’s treating physician, Dr. Danielle Butler.
See Pl.’s Mem. at 31–34. Second, Cortes argues that the ALJ improperly evaluated the
credibility of Cortes’s statements regarding her symptoms. See id. at 37–39. Third,
4

Cortes argues that the ALJ’s decision “cherry-picked” the Record, leading to a decision
that was not supported by substantial evidence. See id. at 34–37. Fourth, she argues
that the vocational expert’s testimony was baseless and that the ALJ committed legal
error by relying on it. See id. at 24–31.
Cortes does not argue that the ALJ committed legal error by failing to satisfy his
duty to develop the record. However, the court cannot ignore the gap in the Record
concerning Cortes’s treatment for mental illness from February 2015 until the Record
closed at the end of July 2015. See R. at 524, 1547. A court will not typically consider
a non-jurisdictional issue that a party has failed to raise. See Hardiman v. Reynolds,
971 F.2d 500, 502 (1992). However, the claims process for Social Security benefits is
nonadversarial and, on appeal, courts “conduct a plenary review of the administrative
record to determine if there is substantial evidence, considering the record as a whole,
to support the Commissioner’s decision and if the correct legal standards have been
applied.” See Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Kohler v.
Astrue, 546 F.3d 260, 265 (2d Cir. 2008)). An ALJ commits legal error when he fails to
fulfill his affirmative obligation to develop the administrative record. See Rosa v.
Callahan, 168 F.3d 72, 80 (2d Cir. 1999). Many courts have found that they may
consider errors in benefits determinations that have not been raised. See, e.g., Farley
v. Colvin, 231 F. Supp. 3d 335, 339 (N.D. Cal. 2017) (“In this ‘beneficent’ and ‘tolerant’
context, there is no reason to treat the failure to raise an error as reason for actively
ignoring it.”); Taylor-Tillotson v. Colvin, No. 13-80907-CIV-WM, 2014 WL 7211888, at
*13 (S.D. Fl. Dec. 18, 2014) (“A reviewing court may sua sponte address issues in
social security cases”); Mangan v. Colvin, No. 12 C 7203, 2014 WL 4267496, at *1

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(N.D. Ill. Aug. 28, 2014) (same); Gravel v. Barnhart, 360 F. Supp. 2d 442, 452 n.24
(N.D.N.Y. 2005) (noting additional issues that warrant remand sua sponte).
Upon review of the Record, the court concludes that the ALJ erred by failing to
adequately develop the record to obtain treatment notes from the Intensive Outpatient
Program (“IOP”) Cortes participated in beginning in February 2015, updated Fair Haven
records, and records from Cortes’s hospitalization at Yale-New Haven Hospital in 2015.
The ALJ also failed to develop the record by not requesting a treating physician opinion
regarding Cortes’s mental illness. Remand is therefore appropriate to obtain the
missing records and a treating physician opinion with respect to Cortes’s mental illness.
A.

Duty to Develop the Record
1. Missing Records from Fair Haven, Catholic Charities, and YaleNew Haven

An ALJ in a Social Security benefits hearing has an affirmative obligation to
develop the record adequately. See Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999).
Although this obligation is heightened where the plaintiff is pro se, see Echevarria v.
Secretary of HHS, 685 F.2d 751, 755 (2d Cir. 1982), the “non-adversarial nature” of
Social Security benefits proceedings dictates that the obligation exists “even when . . .
the claimant is represented by counsel.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)
(“It is the rule in our circuit that ‘the ALJ, unlike a judge in a trial, must himself
affirmatively develop the record’ . . . .”) (quoting Echevarria, 685 F.2d at 755). Due to
the non-adversarial nature of a Social Security hearing, “[t]he duty of the ALJ, unlike
that of a judge at trial, is to ‘investigate and develop the facts and develop the
arguments both for and against the granting of benefits.’” Vincent v. Comm’r of Social

6

Security, 651 F.3d 299, 305 (2d Cir. 2011) (quoting Butts v. Barnhart, 388 F.3d 377, 386
(2d Cir. 2004)).
During the hearing on March 18, 2015, Cortes explained that, after she was
hospitalized at Stonington Institute in December 2014, she began receiving treatment
three times a week and seeing a clinician one-on-one at an IOP at Catholic Charities.
See R. at 1472, 1501–02. ALJ DiBiccaro asked Cortes’s counsel, Allan B. Rubenstein,
if Cortes’s treatment at Catholic Charities was in the Record, to which Attorney
Rubenstein replied that he did not have possession of Cortes’s medical records after
her hospitalization at Stonington. See R. at 1503. Before the close of the hearing on
March 18, 2015, ALJ DiBiccaro said: “I want you to have the updated Catholic Charities
records and that’s important and I think that’s everything since November 2014 and that
way it’ll give you time and there’ll be some more individual visits that the claimant will
have in the meantime, as well as the group visits.” R. at 1512.
By the time of the supplemental hearing on June 29, 2015, Attorney Rubenstein
still had not submitted the records from Catholic Charities. See R. at 1518. However,
Attorney Rubenstein told ALJ DiBiccaro that he had just received the discharge records
from a hospitalization at Yale-New Haven that occurred the prior week. See R. at
1518A. When ALJ DiBiccaro asked for the discharge record, Attorney Rubenstein said
he would first need to make a copy of the document because Cortes had only given him
the document upon her arrival at the hearing and he did not have a second copy. See
R. at 1519. ALJ DiBiccaro told Attorney Rubenstein that he would keep the Record
open to allow him to submit the discharge record and the actual records for Cortes’s
recent hospitalization. See R. at 1520–21, 1547.

7

ALJ DiBiccaro then asked Attorney Rubenstein if there were any gaps in the
Record where there was treatment, but he had not yet submitted documentation. See
R. at 1520. The ALJ’s seemingly straightforward question gave rise to the following
exchange:
ALJ: And are there any records which you’re withholding - Atty: Excuse me?
ALJ: - - that you haven’t submitted? Are there any records which you
haven’t submitted that you have?
Atty: That’s a tough question. I mean, why would I do that?
ALJ: The question is a simple one, are there records which you have that
relate to the claimant’s treatment that you are - Atty: No [sic] as far as I know but, as I said, I can’t make an assurance
that there has never been a glitch in the receipt of records and what was
sent by the providers where, sometimes you’ll ask for A and they’ll give
you A minus four pages and then different pages the next time, that if
those pages happen to appear, that somehow one may say then I
withheld them.
I cannot take responsibility for that. I can only say that within the
realm of the nature of all the systems, whatever we have we have sent to
you. But, even within my office, that different people send things at
different times, I can’t - - I don’t want to be - - have like a strict liability
standard based on that and in response to that question - ALJ: Yes.
Atty: - - because if I say no, I know that the Agency is being very, very
strict and I can’t hold to that because I can’t feel like I can be responsible
for any types of difficulties in any of the stages that were beyond
unintentional, by anybody.
R. at 1521–22. The absence of the records the ALJ had requested at the March
hearing and counsel’s perplexing response to the ALJ’s question at the June hearing
should have alerted the ALJ to the strong likelihood that there was a gap in the Record.

8

Ultimately, counsel never submitted the records from Catholic Charities, the Yale-New
Haven hospitalization, or FCHC. See R. at 524, 1519.
District courts have come to varying conclusions regarding whether an ALJ fails
to fulfill his duty to develop the record when he relies upon plaintiff’s counsel to obtain
records, but plaintiff’s counsel fails to do so. See Corona v. Berryhill, No. 15-CV-7117
(MKB), 2017 WL 1133341, at *14 (E.D.N.Y. Mar. 24, 2017) (collecting cases). Multiple
district courts have found that, in light of the investigative nature of the ALJ’s duty to
develop the record, the ALJ’s obligation is not satisfied when he permits the record to
close without counsel having submitted records that the ALJ knows are missing. See
Carr v. Comm’r of Soc. Sec., 16 Civ. 5877 (VSB)(JCF), 2017 WL 1957044, at *10
(S.D.N.Y. May 11, 2017) (“[T]he ALJ has an ‘affirmative’ duty to develop the record that
is ‘independent’ of the plaintiff’s duty to provide evidence.”); Corona, 2017 WL 1133341,
at *16 (finding the ALJ did not satisfy his duty to develop the record where ALJ took no
action to ensure the record was complete beyond discussing missing treatment notes
with counsel on the record and leaving the record open for submission of the records
where ALJ was aware the request had been outstanding for two months before the
hearing); Glast v. Astrue, No. 11-CV-5814, 2013 WL 5532696, at *10 (E.D.N.Y. Sept 30,
2013) (“That the ALJ requested information from Plaintiff’s attorney regarding two
treating physicians and received nothing does not relieve the ALJ of his duty to fully
develop the record.”) (citations and internal quotation marks omitted); Harris v. Colvin,
No. 11-CV-1497, 2013 WL 5278718, at *7–*8 (N.D.N.Y. Sept. 18, 2013) (finding the ALJ
did not satisfy the duty to develop the record where the ALJ held the record open to
allow the plaintiff’s counsel to obtain the promised additional records but no records

9

were submitted); but see Jordan v. Comm’r of Soc. Sec., 142 Fed. App’x 542, 543 (2d
Cir. 2005) (unpublished) (affirming a district court's finding that an ALJ fulfilled his duty
to develop the record where plaintiff's counsel volunteered to secure the records, the
record was left open, the ALJ reminded plaintiff's counsel to submit the records,
plaintiff’s counsel informed the social security administration that there were no further
records to add, and plaintiff's counsel did not request assistance from the ALJ in
obtaining the records); Myers ex rel. C.N. v. Astrue, 993 F. Supp. 2d 156, 162–64
(N.D.N.Y. 2012) (finding the ALJ fulfilled the duty to develop the record where the
plaintiff’s counsel requested and received additional time to submit certain evidence, but
submitted different evidence).
These cases reflect what is a very specific, record review of the context of the
failure to develop the record. Based on the record before this court, see, supra, at 6–8,
and given the critical importance of the missing records to the ultimate issue, this court
concludes the ALJ did not satisfy his duty to develop the record.
Without the missing medical records, there is scant evidence in the Record
regarding Cortes’s anxiety, OCD, and depression. Cortes saw Dr. Richard Feuer at
CHS beginning in June 2008, see R. at 1165, but stopped seeing him in March 2010,
see R. at 1079. She received Xanax at Fair Haven in 2013, but as one doctor noted in
his treatment notes, “despite multiple referrals and discussions regarding the need for
psychiatric evaluation patient will not go.” R. at 1325. The medical records generated
from Cortes’s participation in the IOP at Catholic Charities could be critical to
substantiating or contradicting Cortes’s testimony about her mental illness.

10

In addition, treatment notes from Fair Haven reference an MRI of Cortes’s lumbar
spine, but there is no MRI in the Record. See R. at 1329. Although the Record
remained open until July 31, 2015, see R. at 1547, the treatment notes from Fair Haven
end on January 8, 2015, see R. at 5, 1333. Attorney Rubenstein did not submit the
results of an MRI or discussion of the results in updated treatment records, which could
have been critical to substantiating Cortes’s complaints of chronic back pain. See R. at
1329.
Counsel should have obtained the records himself as Cortes’s representative.
However, given ALJ DiBiccaro’s awareness of the missing records and counsel’s nonresponsiveness at the supplemental hearing, the court concludes that the ALJ did not
satisfy his duty to develop the record by relying solely on counsel. See Pratts, 94 F.3d
at 37.
2. Treating Physician Opinion with Respect to Cortes’s Mental Health
Despite Cortes’s detailed testimony about the symptoms of her mental illness
and her long, albeit spotty, history of receiving psychiatric treatment, the only medical
source statement regarding Cortes’s mental health is dated in 2009. See R. at 415–17.
Dr. Cindy Avila, who conducted the evaluation, does not appear to have had a treating
relationship with Cortes outside of the evaluation she conducted to complete the report.
The Record does not contain any treatment notes from Dr. Avila and her responses
reveal limited knowledge of Cortes’s condition beyond what Cortes reported when Dr.
Avila prepared her evaluation. In response to the question “Identify the factors . . . that
support your assessment,” Dr. Avila wrote, “Pt. reports being sensitive to noise and is
irritable. Also some symptoms of OCD.” R. at 416. In response to the question “Are
any other capabilities affected by the impairment,” Dr. Avila wrote, “This clinician does
11

not have enough information to determine that.” Id. Accordingly, ALJ DiBiccaro gave
Dr. Avila’s opinion little weight. See R. at 536.
The expert opinions of a treating physician are of particular importance to a
disability determination. See Hallet v. Astrue, No. 3:11-cv-1181, 2012 WL 4371241, at
*6 (D. Conn. Sept. 24, 2012) (concluding that “[b]ecause the expert opinions of a
treating physician as to the existence of a disability are binding on the factfinder, it is not
sufficient for the ALJ simply to secure raw data from the treating physician” and
remanding for further development of the record); Tirado v. Astrue, No. 10-CV-2482
(ARR), 2012 WL 259914, at *4 (E.D.N.Y. Jan. 25, 2012) (finding that the affirmative duty
to develop the record “includes the obligation to contact a claimant’s treating physicians
and obtain their opinions regarding the claimant’s residual functional capacity.”) “The
ALJ’s duty to develop the record is enhanced when the disability in question is a
psychiatric impairment.” Lacava v. Astrue, No. 11-CV-7727 (WHP)(SN), 2012 WL
6621731, at *11 (S.D.N.Y. Nov. 27, 2012); see also Craig v. Comm’r of Soc. Sec., 218
F. Supp. 3d 249, 268 (S.D.N.Y. 2016) (quoting Merriman v. Comm’r of Soc. Sec., No.
14-CV-3510 (PGG)(HBP), 2015 WL 5472934, at *19 (S.D.N.Y. Sept. 17, 2015) (“The
duty to develop the record is particularly important where an applicant alleges he is
suffering from a mental illness, due to the difficulty in determining whether these
individuals will be able to adapt to the demands or ‘stress’ of the workplace.”);
Gabrielson v. Colvin, No. 12-CV-5694 (KMK)(PED), 2015 WL 4597548, at *4 (S.D.N.Y.
July 30, 2015 (citing cases).
Given the information the ALJ had regarding Cortes’s sessions with counselors
at Catholic Charities, the ALJ erred by not requesting a treating physician opinion.

12

Before Cortes’s participation in the IOP at Catholic Charities, there was no physician
from whom the ALJ could have requested such an opinion. Cortes’s unwillingness to
receive treatment from a psychiatrist led to the situation where, despite a long period of
taking Xanax for her mental illness, Cortes had not established a relationship with a
treating physician. See R. at 533. However, at the Catholic Charities Intensive
Outpatient Program, there likely would have been a physician who could have
submitted a treating physician opinion, in addition to generating treatment notes, which
could have been submitted. Thus, in addition to failing to follow up on the medical
records from Catholic Charities, the ALJ failed in his duty to develop the record by not
inquiring as to whether Cortes was seeing a physician at Catholic Charities who could
provide a treating source statement and treatment notes.
B.

Additional Issues

In light of the court’s decision to remand this case on the issue of the ALJ’s duty
to develop the record, the court need not reach the merits of Cortes’s other claims.
However, having reviewed the Record and Cortes’s arguments, as well as the
Commissioner’s responses, the court addresses Cortes’s other claims.
1. Treating Physician Rule
SSA regulations give the opinions of treating physicians “controlling weight,” so
long as those opinions are “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and [are] not inconsistent with the other substantial
evidence in . . . [the] record.” 20 C.F.R. § 416.927(c)(2); see also Lesterhuis v. Colvin,
805 F.3d 83, 88 (2d Cir. 2015). In other words, “the SSA recognizes a ‘treating
physician’ rule of deference to the views of the physician who has engaged in the
primary treatment of the claimant.” Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)
13

(quoting Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003)). “Even if the
treating physician’s opinion is contradicted by other substantial evidence, and so is not
controlling, it may still be entitled to significant weight ‘because the treating source is
inherently more familiar with a claimant’s medical condition than are other sources.’”
Tankisi v. Comm’r of Social Sec., 521 F. App’x 29, 33 (2d Cir. 2013) (Summary Order)
(quoting Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir. 1988)).
The ALJ declined to give controlling weight to either of Dr. Danielle Butler’s
medical source statements. See R. at 535. Cortes argues that there is nothing in the
Record that calls into question Dr. Butler’s opinions. See Pl.’s Mem. at 34. The
Commissioner argues that the portions of Dr. Butler’s opinions that the ALJ did not
credit are inconsistent with the objective medical evidence. See Def.’s Mem. at 6–8.
In her 2009 opinion, Dr .Butler found that Cortes could occasionally lift or carry
up to 10 pounds. See R. at 354. She opined that Cortes was able to sit for 30 minutes,
stand for 15 minutes, and walk for 10 minutes uninterrupted. See R. at 355. Dr. Butler
determined that, over the course of an eight hour work day, Cortes would be able to sit
for a total of four hours, stand for a total of one hour, and walk for a total of one hour.
See id. Dr. Butler stated that Cortes required the use of a cane to walk and that, without
a cane, Cortes could not use her free hand to carry small objects due to wrist pain. See
id. Dr. Butler indicated that Cortes was limited to frequent reaching and occasional
handling, fingering, feeling, and pushing or pulling with either hand. See R. at 356. She
was occasionally able to operate foot controls with either foot. See id. Dr. Butler opined
that Cortes was occasionally able to climb stairs and ramps, never able to climb ladders
or scaffolds, occasionally able to balance, and never able to stop, kneel, crouch, or

14

crawl. See R. at 357. Finally, Dr. Butler stated that Cortes is able to tolerate occasional
dusts, odors, fumes, and pulmonary irritants and moderate noise. See R. at 358.
In her 2011 opinion, Dr. Butler found that Cortes could occasionally lift or carry
up to 10 pounds. See R. at 912. Dr. Butler opined that there were no limits on Cortes’s
ability to sit uninterrupted, but that she was limited to less than 20 minutes of standing
or walking without interruption. See R. at 913. In addition, Dr. Butler determined that
Cortes could sit for a full eight hour day, but that she could only stand or walk less than
20 minutes over an eight hour work day. See R. at 913. Dr. Butler again stated that
Cortes required a cane to ambulate and that she could not use her free hand to carry
small objects. See id. Dr. Butler opined that Cortes was limited to frequent reaching,
handling, and feeling with either hand, occasional fingering, and no pushing as a result
of her carpal tunnel. See R. at 914. Cortes was never able to operate foot controls with
either foot. See id. Dr. Butler stated that Cortes was occasionally able to climb stairs
and ramps, never able to climb ladders or scaffolds, and never able to balance, stoop,
kneel, crouch, or crawl. See R. at 915. Dr. Butler determined that Cortes was never
able to be exposed to dust, odors, fumes, and pulmonary irritants due to her asthma.
See R. at 916.
ALJ DiBiccaro based his decision not to afford either of Dr. Butler’s opinions
controlling weight on the lack of support for her opinions in her treatment notes. See R.
at 535–36. The ALJ stated that, “[n]othing in Dr. Butler’s treatment notes indicate [sic]
why the claimant could only stand and walk for 1 hour or would be unable to perform
any posturals.” R. at 535. In addition, the ALJ found that “[t]here is no discussion in the
treatment notes of any difficulty using her hands at that time.” Id. Further, the ALJ

15

stated that “at least some of her report is based on the claimant’s own subjective
reports.” Id. With respect to the 2011 opinion, the ALJ stated that he “does not find
support for occasional fingering.” Id.
Dr. Butler’s 2009 and 2011 opinions—consisting only of checkboxes without any
explanations—left the ALJ to speculate as to why Dr. Butler believed Cortes would have
difficulty performing posturals or using her hands. See R. at 535. It is a close question
whether the ALJ should have contacted Dr. Butler for clarification. See Selian v. Astrue,
708 F.3d 409, 421 (2d Cir. 2013) (noting that before relying on a “remarkably vague”
treating physician’s opinion that contradicted claimant’s testimony, “[a]t a minimum, the
ALJ likely should have contacted [the treating physician] and sought clarification of his
report.”); Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998) (The
physician’s “failure to include this type of support for the findings in his report does not
mean that such support does not exist; he might not have provided this information in
the report because he did not know that the ALJ would consider it critical.”) Because
the court is remanding on the basis of the ALJ’s failure to develop the record, it need not
decide whether the ALJ’s decision not to seek more information from Dr. Butler
constituted legal error. However, on remand, the ALJ should request that Dr. Butler, if
available, clarify the basis for her findings given the lack of objective medical evidence
supporting her opinion.
Although the Record does not contain objective medical evidence of Cortes’s
physical impairments—such as an x-ray or MRI results of a condition that would limit
Cortes to scarcely any standing or walking, or diagnostic testing for Cortes’s CTS—it
was not entirely accurate for the ALJ to state that there was no support for such

16

limitations. See R. at 532, 535. Cortes complained of back pain at multiple
appointments with Dr. Butler. See R. at 1065, 1096, 1121, 1123. After Dr. Butler’s
evaluation, Cortes continued to complain of lower back pain at Fair Haven in 2013 and
2014. See R. at 1316, 1326, 1329. In addition, the ALJ did not address Cortes’s
persistent complaints to her physicians about numbness in her hands. See R. at 425.
In addition, an updated treating physician opinion would clarify the role of
Cortes’s anemia in the limitations Dr. Butler assessed. Cortes’s anemia appears to
have improved following her hysterectomy in November 2012, which postdated Dr.
Butler’s opinions. See R. at 1020. The ALJ noted that there was no indication of
ongoing fatigue or limitations after Cortes’s hysterectomy in November 2012. See R. at
532. This statement also is not entirely accurate, as Cortes continued to seek care for
her anemia in 2013 and 2014 at Fair Haven. See R. at 1314, 1328. However, it seems
that her symptoms were far less severe than before the hysterectomy and that her visits
were predominantly for asthma and other respiratory ailments, see R. at 1313, 1321.
To the extent Cortes’s anemia formed the basis for any of Dr. Butler’s findings, Cortes’s
improved condition may obviate the need for some of the limitations Dr. Butler selected
in her opinion.
In part because Dr. Butler’s opinion did not indicate why she found certain
limitations, the ALJ made the broad assertion that Dr. Butler’s opinions were not
supported by the medical evidence, rather than specifying what evidence conflicted with
Dr. Butler’s opinions. See R. at 535–36. After finding that Dr. Butler’s opinions were
not entitled to controlling weight, the ALJ was still required to consider several additional
factors before assigning a value to the opinion. See Halloran v. Barnhart, 362 F.3d 28,

17

33 (2d Cir. 2004) (the ALJ must “comprehensively set forth [his] reasons for the weight
assigned to a treating physician’s opinion.”) For example, the ALJ did not explain how
the length of Dr. Butler’s treating relationship with Cortes bore on the weight he gave
her report. See 20 C.F.R. § 404.1527(c) (listing factors including the frequency of
examination and the length, nature and extent of the treatment relationship; the
evidence in support of the treating physician’s opinion; (iii) the consistency of the
opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v)
other factors brought to the Social Security Administration’s attention that tend to
support or contradict the opinion). On remand, the ALJ should apply the factors to be
considered when the treating physician’s opinion is not given controlling weight,
especially in the light of any additional information obtained from Dr. Butler.
2. Credibility
“When determining a claimant’s RFC, the ALJ is required to take the claimant’s
reports of pain and other limitations into account, but is not required to accept the
claimant’s subjective complaints without question; he may exercise discretion in
weighing the credibility of the claimant’s testimony in light of the other evidence in the
record.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citations omitted). The ALJ
must follow the two-step process set forth in the regulations for evaluating a claimant’s
assertions of pain and other limitations. See id. “At the first step, the ALJ must decide
whether the claimant suffers from a medically determinable impairment that could
reasonably be expected to produce the symptoms alleged.” Id. (citing 20 C.F.R. §
404.1529(b)). Second, “the ALJ must consider ‘the extent to which [the claimant’s]
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence’ in the record.” Id. (quoting 20 C.F.R. § 404.1529(a)).
18

Cortes argues that the ALJ erred by finding that her dishonesty about her drug
use at the hearings implicated her credibility when there was no evidence to suggest
Cortes lied. See Pl.’s Mem. at 37–38. In addition, Cortes argues that the ALJ
discounted her testimony about the pain she experiences even though none of Cortes’s
treating physicians suggested that she was misrepresenting her pain. See id. at 38–39.
The Commissioner argues that the ALJ appropriately relied on Cortes’s dishonesty with
respect to her drug use, reported earnings, and her history of larceny. See Def.’s Mem.
at 11–12. The Commissioner also argues that the ALJ appropriately considered
Cortes’s lack of mental health treatment and her continued smoking despite her asthma
and the effect her asthma had on her ability to undergo a hysterectomy. See id.
Finally, the Commissioner argues that the ALJ took into account Cortes’s testimony
regarding her back pain. See id. at 13.
ALJ DiBiccaro found that Cortes’s failure to seek mental health treatment or stop
smoking to treat her asthma and permit her to undergo a hysterectomy for her anemia
undercut her credibility. See R. at 535. Under SSR 96-7p, an ALJ may find that a
claimant’s statements are less credible “if the level or frequency of treatment is
inconsistent with the level of complaints, or if the medical reports or records show that
the individual is not following the treatment as prescribed and there are no good
reasons for this failure.” However, before drawing an inference, the ALJ must consider
“any explanations that the individual may provide, or other information in the case
record, that may explain infrequent or irregular medical visits or failure to seek medical
treatment.” Id. The ALJ did not apply SSR 96-7p when reviewing Cortes’s lack of
mental health treatment, see R. at 533, and her smoking addiction, see R. at 531. On

19

remand, it is recommended that the ALJ consider any explanation Cortes may have had
for her failure to comply with referrals for psychiatric treatment and smoking cessation
recommendations. See Goff v. Astrue, 993 F. Supp. 2d 114, 128–129 (N.D.N.Y. 2012)
(remanding for consideration of plaintiff’s efforts to quit smoking or the explanations
contained in the record regarding her difficulties in following through on her physician’s
advice); Hilsdorf v. Comm’r of Soc. Sec., 724 F. Supp. 2d 330, 352 n.12 (E.D.N.Y.
2010).
The ALJ also found that conflicting accounts Cortes made regarding her work
activity after the alleged onset date, multiple pending cases for shoplifting, and
dishonesty at the hearing about her use of illicit substances and to her physicians about
her Xanax prescriptions diminish her credibility. See R. at 534–35. Courts “show
special deference to an ALJ’s credibility determinations because the ALJ had the
opportunity to observe plaintiff’s demeanor while [the plaintiff was] testifying.” Suarez v.
Colvin, 102 F. Supp. 3d 552, 578–79 (S.D.N.Y. 2015) (quoting Marquez v. Colvin, 12
Civ. 6819, 2013 WL 5568718 at *7 (S.D.N.Y. Oct. 9, 2013)). However, unlike the Ninth
Circuit, where the matters considered in credibility determinations are broader and
include “ordinary techniques of credibility evaluation, such as the claimant’s reputation
for lying, prior inconsistent statement concerning the symptoms, and other testimony by
the claimant that appears less than candid,” see Tommasetti v. Astrue, 533 F.3d 1035,
1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273 at 1284 (9th Cir. 1996)),
the case law in this Circuit does not extend beyond the substance of the regulations and
claimant’s demeanor at the hearing, see Genier, 606 F.3d at 49 (“The ALJ must
consider ‘statements the claimant or others make about his impairment(s), his

20

restrictions, his daily activities, his efforts to work, or any other relevant statements he
makes to medical sources during the course of examination or treatment, or to the
agency during interviews, on applications, in letters, and in testimony in its
administrative proceedings.’”) (brackets omitted) (quoting 20 C.F.R. § 404.1512(b)(3)).
The regulations direct the ALJ’s attention to inconsistencies in the evidence
relating to the claimant’s alleged disability, not to her character generally. While courts
defer to the ALJ’s ability to view a claimant’s demeanor, this consideration relates to
how a claimant testifies regarding her symptoms, not to collateral issues such as
criminal behavior or reputation for truthfulness.
Because the court is remanding on the basis of the duty to develop the record, it
need not determine whether the ALJ’s formation of a credibility determination on the
basis of Cortes’s dishonesty is legal error. However, it is suggested that, on remand,
the ALJ analyze Cortes’s credibility based on statements or actions relating to her
physical and mental impairments.3 In addition, on remand, the ALJ’s credibility analysis
should take into account any additional information derived from the updated records.
3. Selective Review of the Evidence
Cortes argues that the ALJ “cherry picked” unfavorable evidence and ignored
favorable evidence. See Pl.’s Mem. at 34–37. She argues that the ALJ emphasized

3

The Commissioner issued a new Social Security Ruling, SSR 16-3p in March 2016 eliminating
the use of the term “credibility” in order to clarify “that subjective symptom evaluation is not an
examination of an individual’s character.” Acosta v. Colvin, 15 Civ. 4051, 2015 WL 6952338, at *18
(S.D.N.Y. Nov. 28, 2016) (quoting S.S.R. 16-3p, 2016 WL 1119029, at *1). The Commissioner
republished S.S.R. 16-3p in October 2017 with a revision explaining that “our adjudicators will apply SSR
16-3p when we make determinations and decisions on or after March 28 2016 . . . . If a court remands a
claim for further proceedings after the applicable date of the ruling (March 28, 2016), we will apply SSR
16-3p to the entire period in the decision we make after the court’s remand.” SSR 16-3p, 2017 WL
5180304, at *1.

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that she was smoking 20 cigarettes a day, even though that single episode was a
departure from the far more frequent reports of around three to five cigarettes a day.
See id. at 35. In addition, Cortes argues that the ALJ made the unjustified conclusion
that Cortes’s hysterectomy was postponed for several years because of her continued
smoking. See id. at 35–36. Cortes also argues that the ALJ ignored Cortes’s diagnosis
of bilateral carpal tunnel syndrome (“CTS”) when he declined to credit Dr. Butler’s
opinion that Cortes was limited to occasional fingering. See id. at 36–37. Further,
Cortes argues that the ALJ ignored Cortes’s prescriptions for a cane and a rolling
walker with a seat, and neglected to mention Cortes’s obesity, OCD, back pain, or
chronic pain syndrome. See id. at 37.
The Commissioner argues that the lack of mention of a 2002 diagnosis of CTS is
of no consequence because the ALJ considered the 2008 diagnosis of CTS, described
treatment notes relating to CTS, and considered Cortes’s complaints about her
problems using her hands. See Def.’s Mem. at 7. In addition, although the ALJ could
not identify the medical basis for Cortes’s need for a cane, he indicated the need for an
assistive device in Cortes’s RFC. See id. at 7. Further, the Commissioner argues, the
ALJ was not obligated to consider Cortes’s obesity because Cortes did not show that
her obesity caused any additional limitations to her functioning. See id. at 8. The
Commissioner notes that the ALJ considered Cortes’s OCD in formulating his RFC
when he limited her to only frequent interaction with supervisors, co-workers, and the
public. See id. at 9–10.
“Cherry picking” is the practice of considering unfavorable evidence to the
exclusion of signs of more extensive limitations. See Dowling v. Comm’r of Soc. Sec.,

22

No. 5:14-CV-0786 (GTS/ESH), 2015 WL 5512408, at *11 (N.D.N.Y. Sept. 15, 2015)
(“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.”) Cortes does not indicate whether her cherry picking
argument is a challenge to the ALJ’s application of the treating physician rule or
credibility determination, or if it indicates that the ALJ’s decision was not supported by
substantial evidence overall. See Pl.’s Mem. at 34–37.
The ALJ noted a record stating that Cortes smoked 20 cigarettes in a day. See
R. at 531. However, he described other records indicating that Cortes smoked two to
three cigarettes a day or half a pack a day. See id. Ultimately, the ALJ drew the
conclusion that Cortes’s continued smoking despite her respiratory issues implicated
her credibility. See R. at 535. The ALJ’s determination that Cortes’s surgery was
postponed because of her smoking was based on all of the evidence describing her
smoking, not simply the one time she reported smoking 20 cigarettes in a day. See R.
at 531. While any implication for Cortes’s credibility should be reevaluated using the
appropriate credibility regulation, see, supra, p. 19, the ALJ’s finding that Cortes’s
smoking delayed her surgery is supported by substantial evidence, see R. at 1341
(“She does smoke cigarettes and this is probably the main issue”); R. at 1339 (noting
that asthma and sleep apnea were concerns for surgery).
The ALJ also appropriately evaluated Cortes’s claim of CTS. Having mentioned
the 2008 diagnosis and other aspects of Cortes’s CTS, the ALJ did not need to mention
her 2002 diagnosis. See Wider v. Colvin, 245 F. Supp. 3d 381, 386 (E.D.N.Y. 2017)
(“An ALJ’s findings may properly rest on substantial evidence even where he or she

23

fails to ‘recite every piece of evidence that contributed to the decision, so long as the
record permits [the Court] to glean the rationale of [his or her] decision.’”) (quoting
Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013)). In addition, while the ALJ
was unable to determine the basis for Cortes’s need for an assistive device, he
incorporated this limitation into her RFC. See R. at 532.
Further, the ALJ did not err by not discussing Cortes’s obesity. “[W]here the
record contains evidence indicating limitation of function due to obesity, the ALJ must
consider the effect of obesity on the claimant’s ability to do basic work activities at steps
two through four of the sequential evaluation process.” Browne v. Comm’r of Soc. Sec.,
131 F. Supp. 3d 89, 102 (S.D.N.Y. 2015) (quoting Battle v. Colvin, 2014 WL 5089502,
at *5 (W.D.N.Y. Oct. 9, 2014)). “Conversely, the ALJ’s obligation to discuss a claimant’s
obesity alone, or in combination with other impairments, diminishes where evidence in
the record indicates the claimant’s treating or examining sources did not consider
obesity as a significant factor in relation to the claimant’s ability to perform work related
activities.” Id. (quoting Farnham v. Astrue, 832 F. Supp. 2d 243, 261 (W.D.N.Y. 2011)).
Various treatment notes mention Cortes’s weight, see R. at 1036, 1206, but there is no
evidence in the Record showing how obesity would limit Cortes’s ability to work. See
generally Britt v. Astrue, 486 Fed. App’x 161, 163 (2d Cir. 2012) (ALJ did not err in
finding that obesity was not a severe impairment where the claimant “did not furnish the
ALJ with any medical evidence showing how the [ ] alleged impairment[ ] limited his
ability to work”); Mancuso v. Astrue, 361 Fed. App’x 176, 178 (2d Cir. 2010) (ALJ did
not err in review of obesity where “there [was] no factual basis for thinking that ‘any

24

additional and cumulative effects of obesity’ limited [the claimant's] ability to perform
light work”) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00Q).
Additionally, Cortes argues that the ALJ failed to address her OCD, back pain,
and chronic pain syndrome. See Pl.’s Mem. at 37. However, the ALJ discussed
Cortes’s testimony regarding her OCD symptoms and her treatment with Dr. Feuer
before arriving at an RFC that limited Cortes to “frequent interaction with supervisors,
co-workers, and the public, and to routine and repetitive tasks that require less than 30
days to learn” based on her various mental health issues, including her OCD. See R. at
534. After considering the updated records and any additional treating physician
opinion on Cortes’s mental illness discussed under the ALJ’s duty to develop the record,
see, supra, pp. 8–12, the ALJ will be able to reevaluate any effects of Cortes’s OCD on
her ability to work. The ALJ also considered Cortes’s back pain and chronic pain
syndrome, but found that they did not support greater limitations than the RFC he
assigned Cortes due to the lack of objective medical evidence. See R. at 532. The ALJ
should reevaluate Cortes’s complaints of back pain and chronic pain on remand in the
context of any further information he receives from Dr. Butler and after reassessing
Cortes’s credibility.
4. Vocational Expert
Cortes argues that the vocational expert’s testimony was not supported by
substantial evidence because his methodology for determining the number of jobs
available to Cortes was unreliable. See id. at 24–30. The Commissioner argues that
the vocational expert adequately described the sources for his testimony and that more
specific information was not needed for the ALJ to credit the vocational expert’s
testimony. See Def.’s Mem. at 16.
25

“[A] vocational expert is not required to identify with specificity the figures or
sources supporting his conclusion, at least where he identified the sources generally.”
McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (citing Brault v. Soc. Sec. Admin.,
683 F.3d 443, 450 (2d Cir. 2012)). The ALJ may credit a vocational expert’s testimony
when it is “given on the basis of the expert’s professional experience and clinical
judgment” and is “not undermined by any evidence in the record.” Id. Here, like in
Brault, the vocational expert testified to the sources he relied on: the “Dictionary of
Occupational Titles” (the “DOT”) published by the United States Department of Labor,
the Standard Occupational Classification System (“SOC”) produced by the Department
of Labor’s Bureau of Labor Statistics, and his own knowledge of the labor market. See
R. at 1532–33.
Cortes questions the reliability of the vocational expert’s methods by pointing to
the mathematical impossibility of his calculations. See Pl.’s Mem. at 28–29. The
vocational expert found jobs that Cortes could perform based on her RFC using the
position descriptions in the DOT. See R. at 1532. Because the DOT does not report
how many jobs are available in the economy, the vocational expert looked to
comparable SOC codes, which contain job statistics. See R. at 1533. The vocational
expert then used his knowledge and experience to extrapolate the number of jobs from
the SOC code back to the DOT code for the positions he found suitable for Cortes. See
R. at 1532. For example, using this methodology, the vocational expert testified that
there were 120,000 persons employed as an Addresser, which is one of eight positions
listed under the SOC code for Word Processors and Typists. See R. at 1531.
However, the May 2014 Occupational Employment Statistics—the most current

26

publication at the time of the supplemental hearing—reports that total national
employment for all eight occupations listed under SOC 43-9022.00—Word Processors
and Typists—was 81,300. See R. at 868.
By exposing the vocational expert’s flawed calculations, Cortes has illustrated the
dubious methodology used to arrive at the number of jobs in the economy. However,
the vocational expert need not provide the exact number of jobs available for a position.
See Brault, 683 F.3d at 450. In addition to the position of Addresser, the vocational
expert testified that Cortes could perform the jobs of Monitor and Document Preparer,
among other positions. See R. at 1531. Thus, while this defect in the expert’s
testimony is troubling, the court concludes that ALJ DiBiccaro’s determination that jobs
Cortes could perform existed in significant numbers in the national economy was
supported by substantial evidence.
VI.

CONCLUSION
For the reasons stated above, the Motion for Order Reversing the

Commissioner’s Decision is GRANTED, and the Motion for Order Affirming the Decision
of the Commissioner is DENIED. The case is remanded to the ALJ for proceedings
consistent with this Ruling. The Clerk’s Office is instructed that, if any party appeals to
this court the decision made after this remand, any subsequent social security appeal is
to be assigned to the District Judge who issued this Ruling.
SO ORDERED.
Dated at New Haven, Connecticut this 19th day of March, 2018.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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