DIAZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge William J. Martini on 9/24/13. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:12-07130 (WJM)
ED DIAZ,
Plaintiff,
OPINION
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Ed Diaz, a survivor of the September 11, 2001 attack on the World Trade
Center suffering from post-traumatic stress disorder, appeals an administrative law
judge’s denial of disability insurance benefits and supplemental security income benefits.
Mr. Diaz argues, inter alia, that the administrative law judge improperly weighed various
expert opinions and relied on vocational expert testimony that did not reflect the facts of
Mr. Diaz’s situation. The Commissioner does not challenge any of the arguments Diaz
makes in his brief. Indeed, the Commissioner recognizes that the administrative law
judge’s decision “is not defensible,” Commissioner’s Br. at 1, ECF No. 19. The only
disputed issue before this Court is whether alleged bias on the part of the administrative
law judge requires this Court to remand the case to a new administrative law judge. The
Court will VACATE and REMAND this case. The Court will DENY Mr. Diaz’s
request for reassignment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Ed Diaz found himself on the 32nd floor of one of the Twin Towers on September
11th. Administrative Transcript (“Tr.”) 55. Mr. Diaz managed to get out, but many of
his friends did not. Id.
On June 26, 2007, consulting psychiatrist Dr. Nimer Iskandarani diagnosed Mr.
Diaz with post-traumatic stress disorder (“PTSD”). Id. at 242. Dr. Iskandarani
concluded that Mr. Diaz’s “social and occupational competence” was “inadequate.” Id.
at 241.
Following a 2007 car accident, Mr. Diaz sought treatment from Jidong Sun, a
doctor specializing in physical medicine and rehabilitation. Dr. Sun identified
“significant functional limitations interfering with patient’s working ability and his
activities of daily living.” Id. at 248. After MRIs indicated a bulging cervical disc and a
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herniated lumbar disc, Dr. Sun indicated that Mr. Diaz should limit physical activities to
a “tolerable limit.” Id. at 248, 254. On March 24, 2009 orthopedic surgeon Dr. David
Basch examined Mr. Diaz and diagnosed cervical, lumbar, and wrist strains with spinal
disc disruption, bulge, and herniation, and bilateral median mononeuropathy. Id. at 287.
In 2007-2008, Mr. Diaz received psychiatric care from Dr. Claudio Dicovskiy.
Dr. Dicovskiy diagnosed PTSD and concluded that Mr. Diaz’s impulse control was “fair
to poor.” Id. at 275. In 2009, Mr. Diaz began a partial hospitalization program for
mental health care at Harbor House, an entity affiliated with St. Joseph’s Medical Center.
Id. at 276. In October 2010, Dr. Marcia Ribalta, Mr. Diaz’s psychiatrist at Harbor House,
informed the Social Security Administration that Mr. Diaz could not meet competitive
standards in the areas of “deal[ing] with normal work stress” and “complet[ing] a normal
workday and workweek without interruptions from psychologically based symptoms.”
Id. at 376. In Dr. Ribalta’s opinion, Mr. Diaz would have to miss about four days of
work per month. Id. at 379. Also in October 2010, Dr. Ribalta informed the Social
Security Administration that in her medical opinion, Mr. Diaz would be “unable to do
any type of competitive employment.” Id. at 464.
On October 27, 2010, administrative law judge Donna A. Krappa (the “ALJ”)
convened a hearing on Mr. Diaz’s benefits application. Tr. at 38-81. To determine
whether Mr. Diaz could perform jobs available in the national economy, the ALJ took
testimony from a vocational expert. The vocational expert first considered a hypothetical
person of Mr. Diaz’s age, educational background and work history who could lift ten
pounds frequently and 20 pounds occasionally, who could perform low stress work with
three 15 minute breaks every day, and who could not work in close proximity to others.
The vocational expert testified that the following jobs in the national economy were
available to this person: eye drop assembler, scale operator, and carding machine
operator. Tr. at 77. The ALJ also asked the vocational expert to consider another
hypothetical person of Mr. Diaz’s age, educational background, and work history. Unlike
the first hypothetical person, this individual would have to miss four days of work per
month. The vocational expert testified that this person could not find work in the
competitive labor market. Id. at 78.
II.
LEGAL STANDARDS
A.
The Five-Step Sequential Analysis
Under the authority of the Social Security Act, the Social Security Administration
has established a five-step evaluation process for determining whether a claimant is
entitled to benefits. 20 C.F.R. §§ 404.1520, 416.920. In the first step, the Commissioner
determines whether the claimant has engaged in substantial gainful activity since the
onset date of the alleged disability. Id. § 404.1520(b), 416.920(b). If not, the
Commissioner moves to step two to determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id. §§ 404.1520(c), 416.920(c). If the claimant
has a severe impairment, the Commissioner inquires in step three as to whether the
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impairment meets or equals the criteria of any impairment found in the Listing of
Impairments. 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A (“Part A”). If so, the
claimant is automatically eligible to receive benefits (and the analysis ends); if not, the
Commissioner moves on to step four. Id. §§ 404.1520(d), 416.920(d). In the fourth step,
the Commissioner decides whether, despite any severe impairment, the claimant retains
the residual functional capacity (“RFC”) to perform past relevant work. Id. §§
404.1520(e)-(f), 416.920(e)-(f). The claimant bears the burden of proof at each of these
first four steps. At step five, the burden shifts to the Social Security Administration to
demonstrate that the claimant is capable of performing other jobs that exist in significant
numbers in the national economy in light of the claimant’s age, education, work
experience and RFC. 20 C.F.R. §§ 404.1520(g), 416.920(g); see Poulos v. Comm’r of
Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007) (citations omitted).
B.
Standard of Review
For purposes of this appeal, the court’s review of legal issues is plenary. See
Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). The ALJ’s
factual findings are reviewed “only to determine whether the administrative record
contains substantial evidence supporting the findings.” Sykes v. Apfel, 228 F.3d 259, 262
(3d Cir. 2000). Substantial evidence is “less than a preponderance of the evidence but
more than a mere scintilla.” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004)
(citation omitted). “It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. When substantial evidence supports the ALJ’s
factual findings, this Court must abide by the ALJ’s determinations. See id. (citing 42
U.S.C. § 405(g)).
The substantial evidence standard is highly deferential. “If a limitation is
medically supported but is also contradicted by other evidence, the ALJ can choose to
credit portions of the existing evidence and disregard others.” Seabon v. Comm’r of Soc.
Sec. Admin., No. 10-2268, 2011 WL 3425508, at *8 (D.N.J. Aug. 4, 2011). “The ALJ
cannot, however, ‘reject evidence for no reason or for the wrong reason.’” Id. (internal
citation omitted).
In determining whether the ALJ’s findings are supported by substantial evidence,
the Court must consider the entire record. Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.
2003). “The court must give deference to the administrative findings and may not ‘weigh
the evidence or substitute its conclusions for those of the fact-finder.’” Allen v. Comm’r
of Social Sec., No. 10-2614, 2011 WL 1321985, at *7 (D.N.J. 2011) (internal citation
omitted).
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III.
THE ALJ’S DECISION
A.
Step One
At Step One, the ALJ determined that Mr. Diaz had not engaged in substantial
gainful activity since November 1, 2004, the alleged onset date of Mr. Diaz’s disability.
Tr. at 21.
B.
Step Two
At Step Two, the ALJ determined that Mr. Diaz had the following severe
impairments: mild bi-lateral carpal tunnel syndrome, a disorder of the back, asthma,
substance abuse (in remission), and an affective disorder. Id.
C.
Step Three
At Step Three, the ALJ determined that Mr. Diaz did not have an impairment or
combination of impairments that meets or medically equals any of the impairments listed
in Part A. Id. at 21-22. Specifically, the ALJ found that Mr. Diaz did not satisfy listing
12.04(C), which describes a
medically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to
do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:
1.
2.
3.
Repeated episodes of decompensation, each of
extended duration; or
A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in
mental demands or change in the environment would
be predicted to cause the individual to decompensate;
or
Current history of 1 or more years’ inability to
function outside a highly supportive living
arrangement, with an indication of continued need for
such an arrangement.
Dr. Ribalta’s concluded that Mr. Diaz satisfied listing 12.04(C). Id. at 378. In reaching
her Step Three decision, the ALJ either ignored or rejected this conclusion.
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D.
Step Four
At Step Four, the ALJ determined that Mr. Diaz could not perform his past work
as a landscaper, computer technician, and general laborer. However, the ALJ found that
Mr. Diaz had the RFC to perform work with specific exertional and postural restrictions.
The ALJ found that Mr. Diaz could lift/carry 20 pounds occasionally and ten pounds
frequently, that Mr. Diaz could sit for six hours in an eight hour work day, and that Mr.
Diaz only occasionally use ramps or stairs. Id. at 23. With respect to the mental
demands of a job, the ALJ found that Mr. Diaz could perform a low stress job with at
least three breaks per day. Id.
In arriving at her RFC finding, the ALJ relied on Mr. Diaz’s medical record. The
ALJ noted that Dr. Basch identified chronic lumbar strain, that Dr. Dicovsky assessed a
Global Assessment of Functioning (“GAF”) score of 60 (indicating moderate symptoms),
and that Dr. Iskandarani assessed a GAF score of 50-55 (indicating serious or moderate
symptoms). Id. at 24-26. The ALJ did not say how much weight she was attributing to
the opinions of Dr. Basch, Dr. Iskandarani, or Dr. Dicovsky.
In making her RFC finding, the ALJ also considered of the opinions of Dr. Sun
and Dr. Ribalta. The ALJ recognized Dr. Sun’s view that Mr. Diaz had “significant
functional limitations.” Id. at 25. However, the ALJ characterized Dr. Sun’s view as
“useless in assessing [Mr. Diaz’s] residual functional capacity” because Dr. Sun did not
“comment on the exact extent of [Mr. Diaz’s] . . . injuries and disabilities.” Id. The ALJ
also put little stock in Dr. Ribalta’s views, which the ALJ gave “little weight.” Id. at 29.
While recognizing that Dr. Ribalta gave Mr. Diaz a GAF score of 40-45, indicating
serious symptoms, id. at 26, the ALJ nevertheless failed to credit Dr. Ribalta’s opinion
that Mr. Diaz could not work. The ALJ explained: “While [Dr. Ribalta’s] progress notes
suggest that [Mr. Diaz] has some limitations . . . as a result of his mental health issues, I
do not find that they support a complete lack of ability to meet the mental demands of
work.” Id. at 26-27. The ALJ went on to quote Dr. Stephanie Barnes, a physician at
Saint Barnes Hospital who treated Mr. Diaz after he reported to the emergency room on
November 13, 2009. Id. at 27. Dr. Barnes described Mr. Diaz as “calm and
cooperative,” and she noted that Mr. Diaz reported improvements in his coping skills
while in treatment with Dr. Ribalta. The ALJ failed to note that Mr. Diaz came to the
emergency room partly because of suicidal ideations. See id. at 330-31.
After discussing Dr. Barnes’s note, the ALJ made the following observation (the
“Observation”):
In evaluating the assessment that a doctor makes of a patient/claimant’s
limitations it is important to determine whether the assessed limitations in
the forms checklist are supported by the findings reported by the doctor in
his/her progress notes. When presented by a patient/claimant with a form
requiring assessment of a patient/claimant’s functioning, a doctor or
psychologist may be tempted to overstate the severity of his/her patient’s
limitations out of sympathy for the claimant’s financial circumstances or
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his/her lack of insured medical treatment—both of which could be
significantly improved were a patient/claimant were to be awarded
disability benefits.
Furthermore, a doctor or psychologist may be tempted to overstate the
severity of his/her patient’s limitation as a sort of quid pro quo for the
claimant’s willingness to treat with the doctor and increase his/her income.
Obviously, medical and mental health professionals, though highly
educated and trained, are subject to many of the same biases and stressors
as lay people/witnesses.
Id. at 27.
The ALJ proceeded to explain that Dr. Ribalta’s views about Mr. Diaz’s ability to
work were apparently contradicted by a series of roughly 20 progress notes from Dr.
Ribalta’s practice. Id. at 27-29 (citing Tr. at 411-62). These notes almost never indicated
that Mr. Diaz’s limitations were severe. Most of them indicated that Mr. Diaz’s mental
status was “ok.” Id. at 411-62.
E.
Step Five
At Step Five, the ALJ relied on the vocational expert’s testimony to conclude that
the following jobs in the national economy were available to Mr. Diaz: eye drop
assembler, scale operator, and carding machine operator. Id. at 30-31. Accordingly, the
ALJ concluded that Mr. Diaz was not disabled.
IV.
DISCUSSION
Mr. Diaz argues that the ALJ’s decision was not supported by substantial
evidence. Mr. Diaz also argues that his case should be reassigned following remand
because the ALJ was biased. The Court will consider these arguments in turn.
A.
The ALJ’s Decision Was Not Supported By Substantial Evidence.
Mr. Diaz makes the following arguments for why the ALJ’s decision was not
supported by substantial evidence: First, at Step Four, the ALJ assigned incorrect
weights to the medical opinions of Dr. Sun and Dr. Ribalta, and the ALJ failed to indicate
how much weight she was assigning to the opinions of Dr. Basch, Dr. Dicovsky, and Dr.
Iskandarani. Second, at Step Five, the ALJ relied on vocational expert testimony
concerning an individual with an RFC different from Mr. Diaz. Third, at Step Three, the
ALJ failed to consider relevant evidence when she decided that Mr. Diaz did not have the
impairment identified in listing 12.04(C). Fourth, at Steps Two through Five, the ALJ
did not properly consider Mr. Diaz’s PTSD and neck injuries.
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The Commissioner does not challenge Mr. Diaz’s arguments. Indeed, he agrees
that “this case is not defensible on the record before the Court.” Commisioner’s Br. at 1.
The Commissioner goes on to explain: “[a] remand for further proceedings is warranted
here because the ALJ’s decision contained inconsistencies with regard to Plaintiff’s
residual functional capacity (RFC) as well as discrepancies between the hypothetical
question posed to the vocational expert and the RFC found in the hearing decision from
ALJ Krappa.” Id. at 3. Accordingly, the Court will VACATE and REMAND this case.
On remand, the ALJ shall explicitly indicate how much weight she is attributing to
the opinions of Dr. Basch, Dr. Dicovsky, and Dr. Iskandarani. See Carroll v. Astrue, No.
6-4869, 2008 WL 800576, at *6 (D.N.J. March 24, 2008) (“[The ALJ’s] failure to explain
whether he was accepting any of Dr. Willman’s opinion and what weight he gave it was
error.”). The ALJ shall also reassess how much weight to give Dr. Sun’s opinion. The
ALJ said that Dr. Sun’s views about Mr. Diaz were “useless” for RFC purposes because
Dr. Sun did not “comment on the exact extent of [Mr. Diaz’s] . . . injuries and
disabilities.” Tr. at 25. However, Dr. Sun recognized that Mr. Diaz had “significant
functional limitations” and needed to restrict his activities to “tolerable limits” based on
diagnostic test results. Id. at 248-49.
Also, the ALJ shall reassess how much weight to give Dr. Ribalta’s opinion. In
her decision, the ALJ gave “little weight” to Dr. Ribalta’s opinion that Mr. Diaz could not
work, in part because progress notes from Dr. Ribalta’s clinic indicated that Mr. Diaz’s
mental status was “ok.” Tr. at 411-62. Mr. Diaz sees no conflict between the progress
notes and Dr. Ribalta’s opinion. Mr. Diaz argues that the progress notes reflected how he
“presented in a highly supportive five day per week, six hour per day therapeutic
psychiatric treatment environment,” and not how he would fare in a work environment.
Pl.’s Br. at 23. Mr. Diaz is correct: a patient can appear one way in a doctor’s office, and
he can present in an entirely different way in the outside world. The Social Security
regulations recognize as much. See 20 C.F.R. § 404, Subpart P, Appendix 1, §
12.00(C)(3) (“We must exercise great care in reaching conclusions about your ability or
inability to complete tasks under the stresses of employment during a normal workday or
work week based on a time-limited mental status examination or psychological testing by
a clinician, or based on your ability to complete tasks in other settings that are less
demanding, highly structured, or more supportive.”). On remand, the ALJ shall reassess
how much weight to give Dr. Ribalta’s opinion.
After reassessing how much weight to give the various medical opinions, the ALJ
shall reassess Step Five. In arriving at her Step Five conclusion, the ALJ chose not to
rely on the vocational expert’s testimony that someone who would miss four days of
work per month could not hold down a job. The ALJ chose not to rely on this testimony
because she rejected Dr. Ribalta’s opinion that Mr. Diaz would miss four days of work
per month. After the ALJ reconsiders her RFC determination, paying specific attention
to the number of days Mr. Diaz will be able to work and the extent to which PTSD will
impact Mr. Diaz’s ability to work, the ALJ shall reassess her Step Five finding. See
Kanga v. Bowen, 823 F.2d 775, 777-78 (3d Cir. 1987) (“The regulations defining residual
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functional capacity direct the Secretary to determine a claimant’s capacity for work on a
“regular and continuing basis.”).
Next, in reconsidering whether Mr. Diaz satisfies listing 12.04(C), the ALJ shall
specifically address Dr. Ribalta’s view that Mr. Diaz satisfied the criteria set forth in
listing 12.04(C). See Tr. at 378.
Finally, the Court turns to Mr. Diaz’s argument that the ALJ failed to consider Mr.
Diaz’s PTSD and neck problems at Steps Two through Five. At Step Two, the ALJ
found that Mr. Diaz’s affective disorder constituted a severe impairment. Mr. Diaz
maintains that the ALJ should have added PTSD—which he maintains is not an affective
disorder—to the list of severe impairments. But given that the ALJ considered whether
Mr. Diaz’s PTSD affected his RFC, this omission appears to be harmless. (However, to
the extent the ALJ relied on vocational testimony about a hypothetical person who was
not suffering from PTSD, this omission was material.) As for Mr. Diaz’s neck problems,
the ALJ did not find that they constituted a severe impairment. Instead, the ALJ found
that Mr. Diaz’s “disorder of the back” constituted a severe impairment. It is unclear to
the Court whether the neck problems Mr. Diaz references differ from the back problems
addressed by the ALJ. On remand, when the ALJ reevaluates the findings of Dr. Sun and
Dr. Basch, she shall make explicit what she means by “disorder of the back,” and explain
whether “disorder of the back” includes neck problems, as well.
B.
The Court Will Not Reassign This Case To A New Administrative Law
Judge.
The ALJ made an observation that when it comes to benefits applications, doctors
sometimes let sympathy cloud their medical judgment. Mr. Diaz believes the
Observation reveals bias on the part of the ALJ. Accordingly, Mr. Diaz requests an order
reassigning the case to a new administrative judge on remand. The Court will deny this
request.
Citing Grant v. Commissioner, 111 F. Supp. 2d 556, 558 (M.D. Pa. 2000), Mr.
Diaz maintains that reassignment is proper where “there is proof that the ALJ is unable to
fulfill the duty to develop the facts and decide impartially.” Pl.’s Reply at 3, ECF No. 21.
Put differently, “when the conduct of an ALJ gives rise to serious concerns about the
fundamental fairness of the disability review process, remand to a new ALJ is
appropriate.” Sutherland v. Barnhart, 322 F. Supp. 2d 282, 292 (E.D.N.Y. 2004).
“Factors for consideration in this determination include:
(1) a clear indication that the ALJ will not apply the appropriate legal
standard on remand; (2) a clearly manifested bias or inappropriate hostility
toward any party; (3) a clearly apparent refusal to consider portions of the
testimony or evidence favorable to a party, due to apparent hostility to that
party; (4) a refusal to weigh or consider evidence with impartiality, due to
apparent hostility to any party.
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Id.
While the ALJ’s Observation did not belong in her opinion, it does not “give[] rise
to serious concerns about the fundamental fairness of the disability review process.” Id.
Here, there is no evidence that sympathy interfered with Dr. Ribalta’s judgment. If the
ALJ thought otherwise, and if she based her decision on her unsupported belief, the ALJ
erred as a matter of law. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). But the
Court cannot infer that the ALJ will apply the wrong legal standard on remand. Nor can
the Court find that the ALJ is clearly biased towards Mr. Diaz. And nor can the Court
find that the ALJ refused to consider evidence based on hostility towards Mr. Diaz.
Indeed, the ALJ provided a lengthy discussion of her reasons for attributing “little
weight” to Dr. Ribalta’s decision. Tr. at 27-29. As part of this discussion, the ALJ
referenced Dr. Ribalta’s report to the Social Security Administration and roughly 20
notes from Dr. Ribalta’s clinic. Id. While the ALJ might not have given the proper
weight to Dr. Ribalta’s findings, the ALJ did not simply ignore the record. Accordingly,
Mr. Diaz’s request for reassignment to a new administrative law judge is DENIED.
V.
CONCLUSION
For the aforementioned reasons, the Court will VACATE and REMAND this
matter. The Court will DENY Mr. Diaz’s request for reassignment.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: September 23, 2013
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