Tiru v. Commissioner of Social Security

Filing 26

ORDER: The Commissioner's 22 motion for judgment on the pleadingsis denied. Plaintiff's motion is granted insofar as it seeks reversal of the Commissioner's decision. The Court remands the case for further proceedings consistent with this opinion. The Clerk of the Court is directed to enter judgment accordingly. SO ORDERED. (Ordered by Senior Judge Allyne R. Ross, on 5/5/2011) C/mailed by Chambers. (Forwarded for Judgment) (Latka-Mucha, Wieslawa)

vIp
UNITED STATES DISTRICT COURT
EASTERN DISTRlCT OF NEW YORK

x
09-CV-1638 (ARR)

MARIA D. LOPEZ-TIRU,

NOT FOR PRINT OR
ELECTRONIC
PUBLICATION

Plaintiff,
-against-

ORDER

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

x
ROSS, United States District Judge:
Plaintiff Maria Lopez-Tiru, proceeding pro se, seeks judicial review of the decision of the
Commissioner of Social Security that she was not disabled under the Social Security Act (the
"Act") for purposes ofreceiving Supplemental Security Income ("SSI"). The Commissioner has
moved for judgment on the pleadings. The court construes plaintiffs affidavit in opposition to
the Commissioner's motion as a cross-motion for judgment on the pleadings. For the reasons set
forth below, the court denies the Commissioner's motion, grants plaintiffs motion insofar as it
seeks reversal ofthe Commissioner's decision, and remands the case for further proceedings.

BACKGROUND
On January 25, 2007, plaintiff filed an application for SSI, claiming that she was disabled
under the Act due to her asthma and depression. R.16. The Commissioner initially denied her
application on June 11,2007. R. 16. Plaintiff filed a written request for a hearing on July 19,
2007. R. 16. On October 28, 2008, plaintiff appeared and testified at a hearing before
Administrative Law Judge ("ALJ") Sol A. Wieselthier. R. 16. Following the hearing, on
December 12, 2008, the ALJ issued a decision denying plaintiffs claim for SSI.

In his decision, the ALl considered the opinion ofthree different medical doctors on
plaintiffs mental condition:
•

First, the ALl considered two reports from Dr. Lober Cervantes, plaintiffs treating
psychiatrist, dated April 7, 2007 and October 18,2008. R.21. In those reports, Dr.
Cervantes - who treated plaintiff on a bi-weekly basis beginning on January 13,2007 diagnosed plaintiff with a major depressive disorder and a panic disorder without
agoraphobia. R. 20 I, 258. In his October 2008 report, Dr. Cervantes indicated that
plaintiffs current global assessment of functioning ("OAF") rating was 50 and that her
highest OAF rating during the past year had been 60. R. 258. Dr. Cervantes stated that
plaintiff had moderate limitations in activities of daily living, marked difficulties in
maintaining social functioning, and marked deficiencies of concentration, persistence, or
pace. R.259. He further stated that plaintiff was unable to meet competitive standards
for most mental abilities needed to perform work activities. R. 260. He concluded that
plaintiffs mental disorders would last for longer than twelve months and would cause her
to miss more than four days of work per month. R. 261.

•

Second, the ALl considered the report from a consultative psychiatric examination
conducted by Dr. Herbert Meadow on April 4, 2007. R. 21,193-194. Dr. Meadow noted
that plaintiff had been treated for the past three months for depression and anxiety. R. 21.
He stated that she described her symptoms as difficulty concentrating, crying, irritability,
and low self-esteem. R.21. During the examination, plaintiff was cooperative and her
manner of relating was adequate. R. 21. Her mood was depressed and she was anxious,
but her affect was appropriate to thought content. R. 21. He concluded that, "although
[plaintift] does have a psychiatric disorder, it would not necessarily interfere with her
ability to function on a daily basis." R. 194.

•

Third, the ALl considered the opinion of Dr. Edward Halperin, a non-examining, nontreating medical expert, who testified at plaintiffs hearing before the ALl. R. 20. He
asserted that the evidence in the record reflected that plaintiff s anxiety and depression
had "a lot to do with her lack of work and financial problems." R. 20. He noted that
plaintiffs OAF indicated a "moderate ability to work and that claimant should be able to
relate to people." R. 20. He further noted that plaintiff was on low doses of medication
and had been able to move from Puerto Rico to New York because she was concerned
with financial conditions. R. 20. He concluded that it "very clearly possible" for plaintiff
to work. R. 55.
After reviewing the opinions of the medical doctors, the ALl concluded that plaintiffs

mental condition did not significantly limit her daily activities. R. 22. The ALl noted that the
treating physician's opinion is "generally accorded controlling weight in evaluating the nature
and severity of a claimant's disability ifit is well-supported by medically acceptable clinical and

2

diagnostic techniques and is not inconsistent with other substantial evidence in the record .... "
R. 22. In this instance, however, the ALJ decided not to grant Dr. Cervantes' opinion controlling
weight, because his opinion "was based on subjective complaints," "not supported by clinical
findings," and "not confirmed to the extent claimed by the other treating physicians." R. 22-23.
Rather, the ALJ afforded "great weight" to the testimony of Dr. Halperin, the non-examining,
non-treating medical expert. R. 22. He also relied on plaintiff s GAF rating, which "indicate[d]
a moderate ability to work." R. 22. The ALJ determined that the plaintiff had "the residual
functional capacity to perform a full range of work at all exertionallevels but with the following
nonexertionallimitations: limitations based on the extent of her depression and anxiety and her
history of asthma." R. 19.
Considering this residual functional capacity, the ALJ determined that plaintiff could
perform her past relevant work as packager in a warehouse/factory. R. 23. Accordingly, he
found her not disabled under the Act and denied her claim for SSI.
DISCUSSION
I.

Standard of Review
This case comes to the court for review ofthe Commissioner's decision that the plaintiff

is not disabled.
Under the Social Security Act, a "disability" is defined as inability to engage in
any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.
42 U.S.C. § 423(d)(l). An individual is considered to be under a "disability" ifhis impairment is
of such severity that he is unable to perform his previous work and, given his age, education, and
work experience he is not able to engage in any other type of substantial gainful employment in
the national economy. See 42 U.S.C. § 423(d)(2)(A). In determining whether an individual is

3

disabled, the Commissioner is to consider both objective and subjective factors, including
"objective medical facts, diagnoses or medical opinions based on such facts, subjective evidence
of pain and disability testified to by the claimant or other witnesses, and the claimant's
educational background, age, and work experience." Parker v. Harris, 626 F.2d 225, 231 (2d
Cir. 1980) (citations omitted).
In order to establish disability under the Act, a claimant must prove that (l) he is unable
to engage in substantial gainful activity by reason of a physical or mental impairment expected to
result in death or that had lasted or could be expected to last for a continuous period of at least
twelve months; and (2) the existence of such impairment was demonstrated by medically
acceptable clinical and laboratory techniques. 42 U.S.C. §§ 423(d), 1382(a); see also Shin v.
Apfel, No. 97-CV-8003, 1998 U.S. Dist. LEXIS 17755, at *15-*16 (S.D.N.Y. November 12,
1998) (citing cases).
The Social Security Administration ("SSA") has promulgated a five step process for
evaluating disability claims. See 20 C.F.R. § 404.1520. The Second Circuit has characterized
this procedure as follows:
"First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful employment. Ifhe is not, the [Commissioner] next considers
whether the claimant has a 'severe impairment' which significantly limits his
physical or mental ability to do basic work activities. If the claimant suffers such
an impairment, the third inquiry is whether, based solely on medical evidence, the
claimant has an impairment which is listed in Appendix 1 of the regulations. If
the claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education, and work
experience. . . . Assuming the claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Finally, if the claimant is
unable to perform his past work, the [Commissioner] then determines whether
there is other work which the claimant could perform."
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467

4

(2d Cir. 1982) (per curiam)) (alterations in original). The plaintiff has the burden of establishing
disability on the first four steps of this analysis. On the fifth step, however, the burden shifts to
the Commissioner. Rivera v. Schweiker, 717 F.2d 719, 722-23 (2d Cir. 1983).
The court's role in reviewing the decisions of the SSA is narrowly confined to assessing
whether the Commissioner applied the correct legal standards in making his determination and
whether that determination is supported by substantial evidence. See 42 U.S.c. §§ 405(g),
1383(c); Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987); Donato v. Secretary. 721 F.2d
414,418 (2d Cir. 1983). Substantial evidence is defined as "more than a mere scintilla"; it is
evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v.
Perales, 402 U.S. 389,401 (1971) (citation omitted).
II.

Review of the ALJ's Decision
In his December 12, 2008 decision, the ALJ committed legal error by violating the

treating physician rule and giving inappropriate weight to the testimony of a non-treating, nonexamining medical expert. The ALJ also erred by mischaracterizing plaintiffs GAF rating and
relying upon that mischaracterization in support of his conclusion regarding plaintiff's functional
limitations. The court thus finds that reversal and remand is warranted.

A.

The ALl Erred in His Application of the Treating Physician Rule

In assessing the evidence supporting a disability claim under the Act, the treating
physician rule requires the opinion of a treating physician to be given controlling weight if it is
well-supported by medical findings and it is not inconsistent with other substantial evidence.
Clark v. Comm'r of Soc. Sec., 143 F.3d 1I5, 118 (2d Cir. 1998)(citing 20 C.F.R.
§§ 404. I 527( d)(2), 4 I 6.927(d)(2)). "The treating physician rule recognizes that a physician who
has a long history with a patient is better positioned to 'provide a detailed, longitudinal picture of

5

[a claimant's] medical impairments.'" Warren v. Astrue, No. 09-CV-62l7, 2010 U.S. Dist.
LEXIS 130976, at *23 (W.D.N.Y. July 27, 2010) (citing 20 C.F.R. § 404. I 527(d)(2» (alteration
in original). "This rule is even more relevant in the context of mental disabilities, which by their
nature are best diagnosed over time." Id. (citation omitted).
Where the ALl does not give the treating physician's opinion controlling weight, he is
required to provide good reasons for that decision. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir.
1999) (citation omitted). "It is well-settled that an ALl cannot substitute her own judgment for
that of a medical professional." Gunter v. Comm'r of Soc. Sec., 361 Fed. Appx. 197, 199 (2d.
Cir. 20 I 0) (citation omitted). Thus, the Second Circuit has held that
[b ]efore an ALl may elect to discredit the medical conclusions of a treating
physician, she must explicitly consider (I) the frequency of examination and
length, nature, and extent of the treatment relationship, (2) the evidence in support
of the physician's opinion, (3) the consistency of the opinion with the record as a
whole, (4) whether the opinion is from a specialist, and (5) whatever other factors
tend to support or contradict the opinion.
Id. (citation omitted). A court will "not hesitate to remand when the Commissioner has not given
good reasons for the weight given to a treating physician'S opinion." Id. (citation omitted).
Moreover, an ALl cannot reject a treating physician's diagnosis without first attempting
to fill any clear gaps in the administrative record. Perez v. Chater, 77 F .3d 41, 47 (2d Cir. 1996).
When a treating physician's opinion "is not adequately supported by clinical findings, the ALl
must attempt, sua sponte, to develop the record further by contacting the treating physician to
determine whether the required information is available." Cleveland v. Apfel, 99 F. Supp. 2d
374,380 (S.D.N.Y. 2000)(citing 20 C.F.R. § 404.1512(e». As the Second Circuit has held on a
number of occasions, "[t]he ALl generally has an obligation to develop the record in light of the
non-adversarial nature of the benefits proceedings, regardless of whether the claimant is
represented by counsel." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

6

In reaching his determination regarding plaintiffs residual functional capacity, the AU
failed to conduct the requisite five-factor analysis under Gunter prior to rejecting the treating
physician's opinion. Instead, the AU rejected Dr. Cervantes' opinion after making several
conclusory statements, namely, that Dr. Cervantes' opinion "was based on subjective
complaints," "not supported by clinical findings," and "not confirmed to the extent claimed by
the other treating physicians." These conclusory statements are not "good reasons" to reject Dr.
Cervantes' opinion. "The fact that [Dr. Cervantes) ... relied on [plaintiffs) subjective
complaints hardly undermines his opinion as to [plaintiffs) functional limitations, as a patient's
report of complaints, or history, is an essential diagnostic tool." Polis v. Astrue, No. 09-CV -379
(FB), 2010 U.S. Dist. LEXIS 70199, at *28 (E.D.N.Y. July 9, 2010) (citing Green-Younger v.
Barnhart, 335 F.3d 99, 107 (2d Cir. 2003)) (internal quotation marks omitted). With respect to
the AU's contention that Dr. Cervantes' opinion was not supported by clinical findings, the
court notes that Dr. Cervantes' reports provide a detailed overview of plaintiffs history and
symptoms, indicate her diagnoses, assess her functional limitations, and state her prognosis.
R. 201-211, 257-262. "Quite frankly, the Court is unaware of what a psychiatrist is expected to
do ... other than to review the patient's history, conduct a mental status examination, and to
report the results and recommendations regarding the patient's ability to function." Polis, 2010
U.S. Dist. LEXIS 70199, at *28 (citations and internal quotation marks omitted; ellipsis in
original). However, to the extent the AU believed that Dr. Cervantes' opinion was not supported
by clinical findings, he had an obligation to develop the record by contacting Dr. Cervantes.
Lastly, as Gunter acknowledges, an AU may not reject the opinion of a treating physician
simply because it is inconsistent with the opinion of non-treating physicians. He must consider
all of the factors set forth in Gunter. The AU has failed to conduct the requisite analysis, and

7

thus he has failed to articulate "good reasons" for his rejection of Dr. Cervantes' opinion.

B.

The AL} Erred by Giving "Great Weight" to Dr. Halperin's Testimony

The AU erred by affording "great weight" to the testimony of Dr. Halperin, a nonexamining, non-treating medical expert, who testified at plaintiff's hearing. "A psychiatric
opinion based on a face-to-face interview with the patient is more reliable than an opinion based
on a review of a cold, medical record and, as in this instance, the observation of plaintiff while
giving [her] testimony at [her] disability hearing." Velazquez v. Barnhart, 518 F.Supp. 2d 520,
524 (W.D.N.Y. 2007). Thus, "[i]n the context ofa psychiatric disability diagnosis, it is improper
to rely on the opinion of a non-treating, non-examining doctor because the inherent SUbjectivity
of a psychiatric diagnosis requires the physician rendering the diagnosis to personally observe
the patient." Id. Accordingly, "the conclusions of a physician who merely reviews a medical
file and performs no examination are entitled to little, if any, weight." Filocomo v. Charter, 944
F.Supp. 165, 170 n.4 (E.D.N.Y. 1996). Here, the extent of Dr. Halperin's interaction with
plaintiff consisted of his review of her medical records and his observation of her at a disability
hearing. Because Dr. Halperin was a non-treating, non-examining medical expert, his testimony
was entitled to little, if any, weight. The AU erred in affording "great weight" to his opinion.
C.

The ALJ Erred by Mischaracterizing Plaintiff's GAF Rating

The AU erred by mischaracterizing plaintitf's OAF rating, as determined by Dr.
Cervantes, and relying upon that mischaracterization in support of his residual functional
capacity determination. Dr. Cervantes' October 2008 report, which was completed ten days
prior to plaintiffs hearing before the AU, indicated that plaintiffs current OAF rating was 50.
R.258. In his decision, the AU stated that plaintiffs OAF rating "indicate[d] a moderate ability
to work." R.22. That statement is incorrect. As the Commissioner notes in his brief to this

8

court, "[aJ GAF rating of 41 to 50 signifies serious symptoms (~, suicidal ideation, severe
obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or school
functioning (~, no friends, unable to keep a job)." Memorandum of Law in Support of the
Commissioner's Motion for Judgment on the Pleadings, Dkt. No. 23, at 5 n.2 (citing American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (DSM-IV-R) 34
(4 th ed., text revision, 2000)) (emphasis added). Plaintiff's GAF rating of 50 does not indicate a
moderate ability to work; to the contrary, it indicates that plaintiff's mental disorder is a serious
impairment in occupational functioning. The ALJ was not entitled to disregard plaintiff's most
recent GAF rating of 50 in his decision simply because plaintiff's GAF rating had been as a high
as 60 during the previous year. Thus, the ALJ mischaracterized plaintiff's GAF rating and
incorrectly relied upon that mischaracterization in support of his decision.
For the foregoing reasons, remand is appropriate in this case. Upon remand, the ALJ
shall reconsider his conclusions in light of this opinion. He shall give appropriate weight to the
opinions of Dr. Cervantes and Dr. Halperin, and he shall take into consideration that plaintiff's
most recent GAF rating indicates a serious impairment in occupational functioning. To the
extent the ALJ believes that Dr. Cervantes' conclusions are not supported by clinical findings,
the ALJ shall contact Dr. Cervantes to fill any gaps in the record. If the ALJ again rejects the
opinion of plaintiff's treating physician, he shall set forth good reasons for his decision, and he
shall explicitly conduct the five-factor Gunter analysis.

9

CONCLUSION
For the above stated reasons, the Commissioner's motion for judgment on the pleadings
is denied. Plaintiffs motion is granted insofar as it seeks reversal of the Commissioner's
decision. The court remands the case for further proceedings consistent with this opinion. The
Clerk of the Court is directed to enter judgment accordingly.
SO ORDERED.

/Signed by Judge Ross/
Allyne R.
United Stat
Dated: May 5, 2011
Brooklyn, New Yor

10

dge

SERVICE LIST:

Plaintiff:
Maria D. Lopez Tiru
137-11 Mulberry Avenue
Apt.# 2
Flushing, NY 11355